School Held Immune for Student-on-Student Injury Suffered in Gym Class

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School Held Immune for Student-on-Student Injury Suffered in Gym Class: Fleurant v. Town of Tewksbury, MICV2009-04423 (Mass. Super. Ct. 2012)

PD&P recently obtained summary judgment in favor of the Town of Tewksbury in an action involving a high school student who was injured while playing handball in gym class. In Fleurant v. Town of Tewksbury, the plaintiff sued the Town for negligence, claiming he fractured his ankle while playing handball when a fellow gym class student tackled him. In his Complaint, the plaintiff faulted the gym teacher for 1) forcing the students to play an “inherently dangerous” game; 2) instructing students to tackle one another on the gymnasium floor; and 3) failing to provide students with protective gear. Originally, the Town moved to dismiss the Complaint on the grounds it was immune under Section 10(j) of the Massachusetts Tort Claims Act (MTCA), which bars claims against public employers for the failure to prevent or diminish the harmful consequences of a condition or situation not originally caused by such employer, including the “violent or tortious conduct of a third party.” In denying the Town’s Rule 12(b)(6) Motion, Superior Court Judge Christine McEvoy specifically relied upon plaintiff’s allegations that the teacher affirmatively participated in creating the harmful environment by specifically instructing students to tackle one another during the game. She held that such allegations, if true, would divest the Town of immunity under Section 10(j), but nonetheless invited the Town to file a Motion for Summary Judgment at the close of discovery if plaintiff’s allegations should prove unfounded.

Judge McEvoy’s invitation proved prophetic. At the close of discovery, not only was there no evidence to support the allegations regarding the teacher’s instructions, but plaintiff’s own sworn deposition testimony directly contradicted the same. Specifically, plaintiff admitted that the game of handball was not (in his estimation) an inherently dangerous one; indeed, it was no more physical than basketball. Further, plaintiff testified that the teacher expressly forbade the students from tackling and engaging in rough play of any kind during gym class. Finally, protective gear would not have prevented plaintiff’s ankle injury. In the face of such testimony, Judge McEvoy allowed the Town’s Motion for Summary Judgment based, again, on Section 10(j) immunity.

The Fleurant decision offers a welcome dose of protection to educators for student-on-student injuries. Since the Supreme Judicial Court decision in Brum v. Town of Dartmouth, 428 Mass. 684 (1999), Section 10(j) has afforded public schools with substantial immunity from suit for the failure to prevent one student from injuring another. More than a decade later, in Gennari v. Reading Public Schools, 77 Mass. App. Ct. 762 (2010), the Appeals Court ruled that Section 10(j) immunity was nonetheless unavailable to a public school for a claim brought against it by a first-grader who was injured during outdoor recess when he fell and struck his face on a concrete bench after being pushed from behind by another student. The Gennari Court reasoned that a jury might fairly view the principal’s “affirmative decision” to conduct recess in the area of the benches was the “original cause” of the student’s injury, thereby divesting the school of Section 10(j) protection. The Gennari decision is in tension with Brum and its progeny, under which courts have routinely held that student assailants the “original cause” of the condition or situation that results in harm to his fellow students.

Published in Developments in Municipal Law Spring 2013 Newsletter.