January 11, 2019
N.E.3d 869] CIVIL ACTION commenced in the Superior Court
Department on May 31, 2013. The case was tried before Edward
P. Leibensperger, J., and a motion for judgment
notwithstanding the verdict was considered by him.
M. O’Connor, Senior Assistant Corporation Counsel (Nieve
Anjomi, Assistant Corporation Counsel, also present) for the
R. Fitzgerald, Boston, for the plaintiff.
Massing, Desmond, & McDonough, JJ.
N.E.3d 870] This appeal concerns the application of the
Massachusetts Torts Claim Act (MTCA), G. L. c. 258, in the
context of police activity. The plaintiff, Niquel Reid, was
conversing calmly on the sidewalk with her sister’s
boyfriend, Tyrone Cummings, when three Boston police
officers, responding to a 911 call from the plaintiff’s
sister, approached. One of the officers, without warning
Cummings or his fellow officers, grabbed Cummings from
behind, intending to conduct a patfrisk. Cummings responded
by removing a firearm from his waistband and exchanging
gunfire with the officers. In the end, the officers fatally
shot Cummings, but not before he shot the plaintiff in the
leg. A jury awarded the plaintiff damages under the MTCA for
the officers’ negligence. The city of Boston argues that
it is immune from liability under the MTCA or, in the
alternative, that the officers’ conduct was not the proximate
cause of the plaintiff’s injuries. We affirm.
morning of June 14, 2011, the plaintiff received a call from
her sister, who said she would be coming to the plaintiff’s
nearby home after putting her daughter on a school bus.
Minutes later, the plaintiff’s sister called again. The
plaintiff could hear her sister saying to someone, "Why
are you following me ... stop following me ... why are your
hands behind your back[?]" The plaintiff was aware that
her sister and her sister’s boyfriend, Cummings, were not
getting along. Sensing trouble, the plaintiff told her sister
that she would pick her up.
the plaintiff arrived at her sister’s home, Cummings was
standing in the street in front of his car. The plaintiff
parked her car and walked over to speak with him. Cummings
spoke in a normal tone of voice and was not belligerent. The
plaintiff did not see any weapons on Cummings, and it did not
appear as if he had been in a fight. While the plaintiff and
Cummings were talking, the plaintiff’s sister emerged from
her house with her daughter, put her daughter in the
plaintiff’s car, and then got into the car herself. The
plaintiff’s sister did not appear injured [129 N.E.3d 871] or
frightened of Cummings. At no point during their interaction,
which lasted less than five minutes, did the plaintiff feel
afraid of Cummings.
Unbeknownst to the plaintiff, while she was talking to
Cummings, her sister had called 911. Boston Police Officers
Shawn Marando and Charbel Kamel, riding in a cruiser driven
by Marando, were dispatched to the scene; Officer Timothy
Denio, working alone, heard the call and decided to assist.
Over the police radio, the dispatcher described Cummings and
relayed the substance of the 911 call as, "[M]an
threatening to kill ... his girlfriend.... But no known
weapons, no mention of weapons." The dispatcher also
sent supplemental text messages to the mobile data terminals
in the officers’ cruisers. These supplemental messages
included a physical description of Cummings and informed the
officers that the caller and her eight year old daughter were
in a car parked outside the residence where the assault had
occurred, that the suspect was standing outside speaking with
the caller’s sister, and that there were "no
weapons." Only Kamel, who was not driving, looked at the
supplemental texts, and he only glanced at the beginning
portion containing the suspect’s description and the summary
of the incident. He considered the status of the situation to
be "unknown weapons," because "the dispatcher
does not know what’s going on the scene."
officers arrived to find the plaintiff and Cummings on the
sidewalk; they erroneously assumed that the plaintiff was the
911 caller. Marando and Kamel approached and stood beside the
plaintiff and Cummings, all within arm’s length of one other,
while Denio took up a position behind his fellow officers.
Cummings and the plaintiff were speaking calmly, and
Cummings’s demeanor did not change when the officers
approached. The plaintiff did not appear to be injured. The
officers did not see any indication of weapons. Marando asked
the plaintiff and Cummings if they had anything on them. The
plaintiff replied, "No," as did Cummings. Marando
asked if either of them called the police, and both responded
that they had not. Marando then said, "[Y]ou both look
all right," and asked if they were "okay." The
plaintiff said, "I’m okay," and Cummings said,
that moment, Kamel came up behind Cummings, grabbed his arm,
and reached for his waist, intending to conduct a patfrisk.
Kamel did not tell Cummings, or the other officers, what he
was going to do. Kamel’s sudden action caught his partner
Marando by surprise because he was in the middle of
"deescalating" the situation and making sure
everyone was calm. Marando testified that he would not have
made "an aggressive move" such as initiating a
patfrisk in such circumstances.
Cummings reacted to Kamel’s sudden contact by pushing Kamel
away and drawing a firearm from his waistband. As Cummings
backed away from the officers, he pointed the gun toward
Marando and fired. Marando and Denio returned fire. After
Marando’s first shot struck Cummings, Cummings started to
fall to the ground, but he continued to discharge his weapon.
The plaintiff tried to get out of the way, but her path was
blocked by a fence between the sidewalk and a house. During
the shootout, Cummings shot the plaintiff in her left leg;
Marando was also shot in the leg. Cummings died from multiple
plaintiff sued the city for negligence, and the case
proceeded to trial. At the close of the plaintiff’s case, the
city moved for a directed verdict, which the judge denied.
The city unsuccessfully renewed its motion at the close of
all the evidence. By special verdict, the jury concluded [129
N.E.3d 872] that "one or more police officers [were]
negligent with respect to their actions at the scene ...
prior to shots being fired" and that "the
negligence of the police officer(s) prior to shots being
fired [was] a substantial contributing factor in causing
injuries to [the] plaintiff." The jury awarded her
$253,391.73, which was reduced by statute to $100,000. See G.
L. c. 258, � 2. After entry of the amended judgment, the city
filed a motion for judgment ...