City Held Immune For Misidentification Of Fire Victim By Police: Anderson v. City of Gloucester, 75 Mass.App.Ct. 429, rev. den., 455 Mass. 1105 (2009)
In a decision important to members of law enforcement, the Massachusetts Appeals Court recently reversed a denial of defendant’s motion to dismiss plaintiff’s lawsuit for negligence and ordered the Essex Superior Court to enter judgment in favor of the City of Gloucester. Pierce, Davis & Perritano, LLP represented the City. Suit arose from a tragic house fire that occurred at 163 Essex Avenue in Gloucester on December 22, 2003. Four occupants – two men and two women – were in the dwelling at the time of the fire. The men escaped the blaze relatively unharmed. The women were not so lucky. Upon arrival, Gloucester firefighters rescued the two women from the burning building, unconscious and covered in soot, and transported them by ambulance to Addison Gilbert Hospital. Shortly thereafter, doctors pronounced one woman dead; the other remained in serious condition.
Around this time, confusion arose concerning the identities of the two women. In an effort to resolve the confusion, hospital staff solicited the assistance of a Gloucester police officer who had transported one of the male occupants to the hospital in his cruiser. Although contested by the City, plaintiff alleged that the officer, as part of a police investigation into the fire, negligently misidentified the two women by means of hair color alone. The survivor, he said, was Ann Goyette, and the deceased was Susan Anderson. Families of the two female victims were promptly notified. Susan’s former husband communicated the news of the death to their two minor children. Six days later, the misidentification was discovered when medical equipment was removed from the survivor’s face. As it turns outs, it was Susan who survived the blaze and Ann who did not. Susan’s former husband subsequently sued the City for the emotional distress suffered by the children.
The City moved to dismiss plaintiff’s Complaint on immunity grounds, citing Sections 10(b), 10(h), and 10(j) of the Massachusetts Tort Claims Act. The Superior Court (Tuttman, J.) denied defendant’s motion. On an appeal taken under the doctrine of present execution, the Appeals Court (McHugh, J.) reversed in reliance upon Section 10(j), which bars any claim against a public employer based on its failure to prevent the “harmful consequences of a condition or situation . . . not originally caused by the public employer . . ..” M.G.L. c. 258, § 10(j). The sequence of events, explained the Appeals Court, was determinative. The fire, the removal of victims to the hospital, and the subsequent confusion surrounding their identities, all preceded the police officer’s involvement in the alleged “harmful” condition or situation. “All of those conditions, and the uncertainties they produced, were a direct result of the fire, not of action or inaction by city employees.” Thus, the officer’s attempt to identify the victims was an act “intended to ‘diminish the [fire’s] harmful consequences,’ namely the uncertainties about the identity of the victims.” Such uncertainty was a “condition or situation” the City did not create, but which the officer’s act was designed to cure.
The Anderson decision is significant for three reasons. First, the Appeals Court upheld the City’s immunity even though the police officer affirmatively acted. Many courts have suggested that Section 10(j) protection is available exclusively when the public employer is negligent by omission only, i.e., by its failure to act. Second, by focusing on the sequence of events that preceded the police officer’s act (starting with the fire itself), the Court made clear that government involvement in a harmful condition or situation that already exists should not give rise to liability. Third, although it did not rely on Section 10(h) to support its decision, the Court discussed the purposes behind Sections 10(h) and 10(j) in language very protective of law enforcement. Section 10(h) protects municipalities from,inter alia, claims based upon inadequate police protection or the failure to investigate crimes. Citing the SJC’s prior warning in Jean W. v. Commonwealth, 414 Mass. 496, 510 (1993), against excessive municipal exposure, the Appeals Court nonetheless acknowledged:
Among other things, § 10(h) and (j) are based on a legislative recognition that public employees who respond to emergencies are called upon to act swiftly, often without the time for investigation and deliberate reflection available in other circumstances. As a consequence, the opportunity for mistakes is high, and municipal exposure to liability for those mistakes creates both an undesirable disincentive to action and the possibility of enormous claims on the public purse.
On December 3, 2009, the SJC denied plaintiff’s application for further appellate review.