EARL O'NEILL, administrator, vs. PETER MENCHER & another. [Note 1]

DREBEN, J. On August 5, 1977, [Note 2] a seventeen year old psychiatric patient, while unsupervised in a shower at Metropolitan

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State Hospital, hanged himself with a bed sheet. He died the next day. Earl O'Neill, the decedent's father and the administrator of his estate, brought this action in negligence against two staff psychiatrists and their unit supervisor [Note 3] seeking damages for conscious pain and suffering by the decedent and also for his wrongful death. See G. L. c. 229, Section 2.

After a trial, a jury upon special questions found all three physicians negligent but that only the negligence of one of them, Dr. Peter Mencher, was causally related to the decedent's death. The jury awarded the plaintiff sums totaling $550,000 for wrongful death [Note 4] (see G. L. c. 229, Sections 1 & 2) and $50,000 for pain and suffering.

The defendant Mencher appeals, claiming that his motions for a directed verdict and for judgment notwithstanding the verdict should have been allowed, [Note 5] primarily on the ground that, as a public official, he is not liable for the actions which were found negligent by the jury. Whether his motions were rightly denied depends on whether the psychiatrists were considered to be public officers under the law in effect prior to the Massachusetts Tort Claims Act, G. L. c. 258, Sections 1 et seq., as appearing in St. 1978, c. 512, Section 15. [Note 6] Such officers were

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subject to a limited degree of liability for negligence. See generally Whitney v. Worcester, 373 Mass. 208, 220-221 (1977).

1. The defendants as public officers. The most comprehensive discussion of prior law appears in Whitney, which explains one of the main premises underlying governmental immunity for acts of public officials. "[S]uch activities which often involve a high degree of discretion and judgment, should be insulated from a form of review which might impede governmental operations by subjecting governmental decision making to after-the-fact judicial tort analysis." Id. at 217. To achieve this purpose, not only the sovereign, but public officers too, are shielded from liability for their discretionary acts. Unlike the sovereign, however, public officers are subjected to liability "when they have engaged in overt and actively tortious conduct in ministerial matters." Id. at 220.

The scope of discretionary activities for which there was no liability for negligence swept broadly, [Note 7] and the term public officer covered a wide range of persons. [Note 8] Thus, the common law did not restrict "public officer" to officers of high rank. See Gildea v. Ellershaw, 363 Mass. 800, 817 (1973). Rather, in order to aid in the effective functioning of government, matters committed to the control or supervision of lesser officials were also protected against damage suits. Ibid. Municipal school committee members, municipal superintendents of streets, municipal tree wardens, and members of local boards of health were all classified as public officials. Whitney, 373 Mass. at 214 n.7. School teachers, too, were considered to

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fall in this category. Thus, in Whitney, a classroom teacher, as well as school committee members and an assistant principal, were said to "function as public officers." Id. at 222. See also Fulgoni v. Johnston, 302 Mass. 421, 423 (1939); Desmarais v. Wachusett Regional Sch. Dist., 360 Mass. 591, 593 (1971), cert. denied, 414 U.S. 859 (1973).

On the basis of these decisions, we conclude that the staff psychiatrists in the present case and their unit supervisor were public officers. If the purpose of immunity was to ensure "diligent and creative performance of public duties," Whitney, supra at 221, we would be hard put to distinguish between the range of discretion accorded a staff psychiatrist in a State hospital and a teacher in a public school, so as to immunize the teacher but not the psychiatrist.

We are also persuaded that the case of Beaumont v. Segal, 362 Mass. 30, 33 (1972), supports this conclusion. In referring to personnel at Westborough State Hospital, the court said: "The superintendent and the two staff psychiatrists are public officers (see Attorney Gen. v. Tillinghast, 203 Mass. 539, 543-545 [1907]) as shown by their description in the opening. . . ." Although the reference to the plaintiff's "opening" renders the decision somewhat ambiguous, the report of the trial judge in Beaumont contained in the record of that case confirms our reading. [Note 9] See Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 2 Mass. App. Ct. 868, 868-869 (1974) (court may take judicial notice of the record of a case).

2. Liability of public officers at common law for negligence. The defendants as public officers are governed by the rules of

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personal liability of public officers alluded to earlier and set forth in Whitney, 373 Mass. at 220. For nonministerial acts, a public officer "is not liable for negligence or other error in the making of that decision" if made in good faith. In ministerial matters, public officers are liable only for misfeasance, and not for nonfeasance, that is, they are only liable for "overt and actively tortious conduct." Id. at 220.

In considering the count claiming conscious pain and suffering, we need not be concerned whether the actions of the doctors were ministerial or discretionary. Under either classification the psychiatrists would be immune from liability. The theory of negligence on which the plaintiff proceeded was that the defendants "inadequately and improperly supervised the decedent during his admission at Metropolitan State Hospital although [they] knew of the decedent's suicidal tendencies" and that they also "inadequately and improperly instructed staff members at [the hospital] in the care and supervision of the decedent . . . ." In sum, they were charged with failing to recognize, in setting a plan of treatment for the decedent, that he was suicidal. This failure, even if ministerial, would not be considered misfeasance under Massachusetts decisions but only nonfeasance. Allowing the decedent to take a shower without supervision is analogous to the teacher's order to the student "to proceed to recess" in Whitney, 373 Mass. at 223, [Note 10] and to the teacher's order to perform chemical experiments without wearing safety glasses in Desmarais v. Wachusett Regional Sch. Dist., 360 Mass. at 593. These actions were held to be mere nonfeasance and not misfeasance.

The unit supervisor, Dr. Annis, would not be liable for an additional reason -- the doctrine of respondeat superior is

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inapplicable to public officers. Trum v. Paxton, 329 Mass. 434, 438 (1952). Alves v. Hayes, 381 Mass. 57, 58 (1980). See also Whitney, 373 Mass. at 214 & n.7, and cases cited. In summary, on the common law counts for conscious suffering, each of the defendants was entitled to a directed verdict.

3. Liability of public officers for wrongful death under G. L. c. 229, Section 2. The counts for wrongful death, the plaintiff claims, stand on a different footing. The action is governed by statute, not common law, and the statute imposes liability on a person who "by his negligence causes the death of a person . . . ." G. L. c. 229, Section 2, as appearing in St. 1973, c. 699, Section 1. Moreover, he urges, the court in Somers v. Osterheld, 335 Mass. 24, 26 (1956), specifically rejected application of the misfeasance/nonfeasance distinction for ministerial actions under the wrongful death statute. In such cases, "the measure of liability is ordinary negligence irrespective of the test of common law liability." Ibid.

Despite the language in Somers, we think the reasoning applicable to the common law count also precludes recovery for the wrongful death claim. We reach this result for a number of reasons.

(a) Discretionary action. First, we note that the demurrers of one of the defendants in Somers were sustained on the ground that his acts were discretionary and not ministerial. Id. at 27. [Note 11] It thus appears that the Somers court construed the wrongful death act which was then in force as abolishing the misfeasance/nonfeasance distinction but not the other common law rule that public officers are not liable for negligence in matters involving discretion.

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The allegedly negligent acts of the defendants in this case are almost indentical to the acts held to be discretionary in Somers. There it was claimed that Osterheld, the superintendent of the hospital, had "treated" the patient, that the patient was put "in a building without restraint and was allowed access to a recreation area which was unenclosed," that he showed a "tendency to climb fire escapes and structures and to separate himself from his fellow patients, a tendency which was made known to this defendant," that the patient was allowed to return to this area "where no restraint was placed upon him or upon others, and he was permitted to come and go and run about without surveillance and without the presence of attendants," and because of this "poorly conceived" method of training and handling, the patient "disappeared and was lost and unaccounted for and died . . . ." Id. at 26-27. The substance of the count, the court explained, was that the defendant in the exercise of discretion "established a method or policy . . . which accorded [the patient] a greater freedom of movement and action than he should have had and as a result led to his disappearance and death. For this there would be no liability to the plaintiff." Id. at 27.

While such actions probably would not be now deemed "a discretionary function" under G. L. c. 258, Section 10(b) (as appearing in St. 1978, c. 512, Section 15), see Kelley v. Rossi, 395 Mass. 659, 665 n.6 (1985), the field of discretionary action was wider under prior law. See n.7 and related text, supra. It is true that in Somers the superintendent of the hospital, and not a staff psychiatrist, was the defendant. The alleged negligence, however, was, as indicated earlier, strikingly similar to the claim made here. The setting of an improper plan, rather than actions while in the defendant's "personal charge," was the basis of the claim in Somers, 335 Mass. at 27-28.

It should also be noted that the Somers court sustained a demurrer filed by an additional defendant who was only an agent of the superintendent and not a public officer in her own right. She was held not liable, the court saying that the allegations as to her were "substantial repetitions" of the claims against the superintendent. The court held that no cause of action based on negligence was alleged. Id. at 28.

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(b) Evolution of wrongful death action since the time of Somers. Although Somers is precedent for considering the psychiatrists' actions discretionary and hence not actionable if taken in good faith, we do not base our decision on that characterization alone. Even if the actions of the physicians were to be considered ministerial, we do not think the Somers dictum which eliminates the nonfeasance/misfeasance distinction for ministerial matters in wrongful death actions has continued validity. Changes in the wrongful death statute, the evolution of the right to recover for wrongful death into one at common law, as well as the absence of any subsequent authority supporting the Somers suggestion, lead us to this result.

The rule which subjected public officers to liability for engaging in "overt and actively tortious conduct in ministerial matters effectively place[d] a ceiling on their personal exposure in the performance of vital governmental functions." Whitney, 373 Mass. at 220-221. The wrongful death statute in force at the time of Somers had a similar effect. That statute, G. L. c. 229, Section 2C, as amended by St. 1951, c. 250, was punitive, with damages to be determined by the "degree of . . . culpability" of the wrongdoer, and also provided a maximum liability of $20,000. Now (and at the time of the incident) the statute (G. L. c. 229, Section 2) is compensatory [Note 12] and has no ceiling [Note 13] on the amount which may be recovered.

Equally, and perhaps more important, the basis of liability for wrongful death has changed since Somers. Then the right to recover for wrongful death was deemed to be solely a creature of statute. In Gaudette v. Webb, 362 Mass. 60, 71 (1972), however, the Supreme Judicial Court explained that the law had evolved so that "it may now be held that the right to recovery for wrongful death is of common law origin" and

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that "wrongful death statutes will no longer be regarded as `creating the right' to recovery for wrongful death."

This fundamental change in outlook as to the nature of the cause of action for death, coupled with the significant changes in the statute itself, leads us to conclude that the weight of the Somers dictum is not sufficient to deny public officers in wrongful death actions the protections accorded them under common law. We are also influenced by the fact that no case has been cited to us -- and we have found none -- subsequent to Somers which applies the distinctions there suggested. [Note 14] We hold, therefore, that the defendants as public officers were not liable for their actions under the law in force on August 5, 1977.

The judgment against the defendant Mencher is reversed and a new judgment is to enter in his favor. A directed verdict in favor of the defendant Annis should have been entered. The judgment in his favor is affirmed. The order denying the motion for a new trial with regard to the defendant Annis is affirmed.

So ordered.