Heard: November 9, 2017.
action commenced in the Superior Court Department on March 2,
2011.A motion to dismiss was heard by Robert N. Tochka, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Douglas K. Sheff (Sara W. Khan, Frank J. Federico, Jr., &
Donald R. Grady, Jr., also present) for the plaintiffs.
P. Lamanna, Assistant City Solicitor (George S. Markopoulos,
Assistant City Solicitor, also present) for city of Lynn.
Buseck, Patience Crozier, & Joseph N. Schneiderman, for
GLBTQ Legal Advocates & Defenders, amicus curiae,
submitted a brief.
Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ.
is a persistent, pernicious problem in our schools -- it can
cause emotional and, at times, physical harm. In this case,
Matthew Mumbauer suffered both. Matthew was a public
elementary school student in Lynn when he was pushed down a
stairwell at school by a classmate. Matthew's fall led to
a spinal injury, resulting in permanent paralysis. He and his
parents, Alyssa Cormier and James Mumbauer (collectively,
plaintiffs), brought claims against a number of defendants in
connection with the incident and Matthew's subsequent
medical care. A Superior Court judge allowed a motion to
dismiss all claims against the city of Lynn, Lynn Public
Schools (school district), and their public employees
(collectively, public defendants). The Appeals Court
affirmed that decision in an unpublished memorandum and order
issued pursuant to its rule 1:28. Cormier v. Lynn,
91 Mass.App.Ct. 1101 (2017) .
allowed the plaintiffs' motion for further appellate
review, limited to whether the Massachusetts Tort Claims Act
(act), G. L. c. 258, § 10 (j), bars the plaintiffs from
bringing claims against the public defendants in relation to
this incident. Thus, the issue that we must decide is not
whether the school was negligent for failing to act
reasonably to prevent the bullying that led to Matthew's
injuries; the complaint alleges that it was, and for purposes
of this appeal, we accept that allegation as true. Rather,
the issue on appeal is whether, under the act, the public
defendants may be held liable for that negligence. We
conclude that the act protects them from liability for such
facts of this case, drawn from the complaint, are tragic. On
March 10, 2008, then fourth grade student Matthew Mumbauer
was pushed down a stairwell by a classmate while attending a
public elementary school in Lynn. The incident occurred while
the students were lining up at the beginning of the school
morning and throughout the afternoon, Matthew complained to
teachers and classmates of "tingling and numbness"
in his extremities. His symptoms were not reported to the
school nurse or any other medical professionals. By the end
of the school day, Matthew reported feeling like his legs
were "dead weight" and he needed assistance to walk
out of the school.
afternoon, Matthew's parents brought him to North Shore
Medical Center (NSMC), where he was diagnosed with a sprain
in his right foot and given pain medication. He stayed home
from school the following day. On March 12, Matthew returned
to NSMC because he was unable to move his hands or legs.
Matthew was then transferred to Massachusetts General
Hospital in Boston, where he was diagnosed with an injury to
his spinal column and spinal cord, which resulted in the
onset of quadriplegia. He is permanently paralyzed and
confined to a wheelchair.
plaintiffs' complaint alleges that, prior to being pushed
down the stairs in March, 2008, Matthew was subject to
constant bullying at school by a small group of students,
including the classmate who pushed Matthew. Matthew's
mother had reported acts of harassment levied against him on
multiple occasions during the 2007-2008 school year to school
officials. Matthew had also complained to teachers and
administrators at the school numerous times about bullying
and harassment. The plaintiffs contend that the school did
not enforce its own antibullying policies.
review the allowance of a motion to dismiss de novo."
Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674,
676 (2011). "For the purposes of that review, we accept
as true the facts alleged in the plaintiffs' complaint
and any exhibits attached thereto, drawing all reasonable
inferences in the plaintiffs' favor." R ...