Heard: November 9, 2017.
action commenced in the Superior Court Department on
September 18, 2015.
motion to dismiss was heard by Kenneth J. Fishman, J., and a
motion for reconsideration was considered by him.
N. Morrissey for the plaintiffs.
Christine M. Dowling for the defendant.
Present: Agnes, Maldonado, & McDonough, JJ.
principle that "if there is tortious injury there is
liability" is one of long standing in Massachusetts when
the parties are private actors. Historically, however, the
principle had no application when the negligent actors were
employees of State or local government, because their
employers were shielded from such lawsuits based upon the
ancient doctrine of sovereign immunity. Morash &
Sons v. Commonwealth, 363 Mass. 612,
618-619 (1973). With the adoption of the Massachusetts Tort
Claims Act in 1978, G. L. c. 258 (act), inserted by St. 1978,
c. 512, § 15, the Legislature abolished much of the
governmental immunity doctrine subject to several exclusions.
See G. L. c. 258, §§ 2, 10(a.)-(j). Recently, in
Cormier v. Lynn, 479 Mass. 35
(2018), the Supreme Judicial Court considered the
applicability of a specific exclusion in the act that bars
"any claim based on an act or failure to act to prevent
or diminish the harmful consequences of a condition or
situation, including the violent or tortious conduct of a
third person, which is not originally caused by the public
employer or any other person acting on behalf of the public
employer." G. L. c. 258, § 10 (j), inserted by St.
1993, c. 495, § 57. In Cormier, the court, in
keeping with prior case law, held that § 10 (j) comes
into play unless the public employer, by some affirmative
act, "originally caused" the condition or situation
that forms the basis for the plaintiff's negligence
claim, 479 Mass. at 40, and determined that a grade school
student who suffered a severe spinal injury as a result of
being pushed down a stairwell at school by a classmate could
not bring suit against the city of Lynn and its school
department, among others. The court concluded that the claims
were barred either because they "originat[ed] from a
failure to act rather than an affirmative act, " or
because any affirmative actions by the defendants were
"'too remote as a matter of law to be the original
cause' of [the student's] injuries . . . and
therefore cannot be said to have 'materially
contributed' to creating the specific condition or
situation resulting in [the] injuries." Id. at
41, citing Brum v. Dartmouth, 428
Mass. 684, 696 (1999), and Kent v.
Commonwealth, 437 Mass. 312, 319 (2002) .
case before us, we must determine whether § 10 (j) is
applicable to negligence claims brought by the plaintiffs
against the defendant, Lincoln Sudbury Regional High School
District (defendant). The plaintiffs' claims arise out of
an injury sustained by Alexandra Stahr, a member of the
defendant's varsity field hockey team, who was struck by
a field hockey stick wielded by another team member during a
practice session. In addition, we also must consider whether
a specific statutory exception to the immunity afforded by
§ 10 (j) permits the plaintiffs' claims to proceed
because they are grounded in "the intervention of a
public employee which causes injury to the victim or places
the victim in a worse position than [s]he was in before the
intervention." G. L. c. 258, § 10 (j) (2) . For the
reasons that follow, we conclude that notwithstanding the
serious injuries suffered by Alexandra,  the plaintiffs'
claims are barred by § 10 (j) and do not come within the
saving provision of § 10 (j) (2) .
their amended complaint, the plaintiffs allege that the
defendant was negligent in (1) failing to properly train and
supervise the athletic coaches and athletes present when
Alexandra was injured; (2) failing to seek adequate medical
assistance at the time of her injuries and, further, failing
to provide adequate postinjury monitoring and planning
related to Alexandra's injuries; and (3) failing to
implement a written academic reentry plan following
Alexandra's injuries. The plaintiffs also assert claims
premised on negligent infliction of emotional distress and
loss of consortium due to the acts and omissions of the
defendant filed a motion to dismiss pursuant to Mass.R.Civ.P.
12(b)(6), 365 Mass. 754 (1974), on the basis that G. L. c.
258, § 10 (j), barred the claims brought against the
defendant, a regional school district. The motion judge
dismissed the complaint in its entirety after finding that G.
L. c. 258, § 10 (j), insulated the defendant from
liability. For the reasons set forth below, we affirm.
September 30, 2012, Alexandra participated in field hockey
practice as a member of the defendant's varsity field
hockey team. On that day, the team participated in a drill
introduced and supervised by an alumna player acting as a
volunteer coach (volunteer coach). The head varsity field
hockey coach (head coach) was also present on the field but
did not actively participate in the supervision of the drill.
Prior to beginning the drill, neither coach gave the players
any instructions or warnings as to techniques that could
endanger other players. The coaches also failed to prohibit
the players from practicing dangerous techniques and did not
inform the players that they would be penalized for utilizing
such techniques. During the drill, Alexandra was struck in
the face by a teammate's field hockey stick after the
teammate chose to pass the ball via a "hard-drive"
as opposed to a "push-pass." The blow knocked out
two of Alexandra's teeth and caused her to lose
volunteer coach did not provide Alexandra with assistance
after she was injured. The head coach left the field to find
first aid supplies and did not immediately assist Alexandra
or assess her injuries. While the head coach was getting
supplies, one of Alexandra's teammates called
Alexandra's father. Upon her return to the field, the
head coach, who had retrieved one of Alexandra's teeth,
put it on ice and directed Alexandra to apply ice and gauze
to her mouth. The head coach did not take any steps to
mitigate the effects of a possible concussion, and the
defendant had not yet implemented a concussion protocol as
required by G. L. c. Ill. § 222, and 105 Code Mass.
Regs. §§ 201.00 et seq. (2011). When Alexandra's
father arrived at the field, the head coach did not explain
to him the circumstances of Alexandra's injury or provide