School Held Immune for Classroom Sexual Assault: Doe v. City of Fitchburg, 76 Mass. App. Ct. 1106 (2010)
On January 7, 2010, the Appeals Court reversed the denial of a Rule 12(b)(6) motion and ordered the Superior Court to enter a judgment of dismissal in favor of the City of Fitchburg and two Fitchburg school officials. Suit arose out of the sexual assault of a disabled wheelchair-bound student of FLLAC Educational Collaborative, a separate legal entity formed by area communities pursuant to G.L. c. 40, § 4E to provide educational services to children of special needs. During the 2003-2004 school year, FLLAC occupied a classroom in Academy Middle School, a public school building in Fitchburg, pursuant to a written lease. On May 17, 2004, a wheelchair repairman gained access to the school, entered the FLLAC classroom and groped the minor plaintiff while purporting to service her wheelchair. The repairman subsequently pleaded guilty to charges of sexual assault and was sentenced to state prison.
The minor and her family brought suit against the city, the Fitchburg School Superintendent and the Principal of Academy Middle School on theories of negligent security and negligent supervision. PD&P represented the Fitchburg defendants. The city moved to dismiss under G.L. c. 258, § 10(j), citing its immunity from claims based on the harmful consequences of a condition or situation it did not originally cause, “including the violent or tortious conduct of a third person” – here, the wheelchair repairman. Simultaneously, the Superintendent and Principal moved to dismiss on the grounds that their personal immunity was guaranteed under G.L. c. 258, § 2. The Superior Court denied defendants’ motion, stating only that plaintiffs’ complaint was “sufficiently pled so as to survive a [Rule] 12(b)(6) motion.” The city and school officials immediately appealed pursuant to the doctrine of present execution. The Fitchburg defendants also moved to stay the Superior Court proceedings pending the outcome of their appeal; this motion was also denied.
In a Rule 1:28 decision, the Appeals Court reversed and ruled in favor of the Fitchburg defendants. Citing Brum v. Town of Dartmouth, 428 Mass. 684 (1999), the Appeals Court stated that “straightforward application” of Section 10(j) prevented plaintiffs’ formation of a recognized cause of action; thus, dismissal of their claims as against the city was required. The repairman’s “predatory molestation” of the minor plaintiff was a violent or tortious act of a third person not originally caused by the city or any city officials or employees. As such, plaintiffs’ allegations fell squarely within the rule of Brum. With respect to the Superintendent and Principal, plaintiffs’ claims confronted the prohibition of the “clear language” in Section 2 which holds that no public employee shall be liable “for any injury . . . caused by his negligent or wrongful act or omission while acting within the scope of his office or employment . . ..” Thus, the Superintendent and Principal, like their employer, were also entitled to dismissal.
The Doe v. Fitchburg decision is neither extraordinary nor unique. Yet it illustrates that, in practice, the doctrine of sovereign immunity does not always shield cities and towns from vexatious litigation. From start to finish, the Fitchburg defendants were active parties in this suit for over two and one-half years. Quite simply, some judges still remain hesitant to dismiss sympathetic cases against municipal defendants, despite the “straightforward” and “clear” language of the Massachusetts Tort Claims Act.