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Stahr v. Lincoln Sudbury Regional High School District

Appeals Court of Massachusetts, Middlesex

May 18, 2018

ALEXANDRA STAHR & others [1]

          Heard: November 9, 2017.

         Civil action commenced in the Superior Court Department on September 18, 2015.

         A motion to dismiss was heard by Kenneth J. Fishman, J., and a motion for reconsideration was considered by him.

          John N. Morrissey for the plaintiffs.

          Christine M. Dowling for the defendant.

          Present: Agnes, Maldonado, & McDonough, JJ.

          AGNES, J.

         The 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) .

         In the 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, [2] the plaintiffs' claims are barred by § 10 (j) and do not come within the saving provision of § 10 (j) (2) .

         In 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.

         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.


         On 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 consciousness.

         The 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).[3] When Alexandra's father arrived at the field, the head coach did not explain to him the circumstances of Alexandra's injury or provide ...

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