ELAINE BRUM [Note 1] vs. TOWN OF DARTMOUTH & others. [Note 2]

LAURENCE, J. Jason Robinson, a minor attending Dartmouth High School, was stabbed to death by an intruder while he sat in his social studies class. His mother, Elaine Brum, commenced this action against the town of Dartmouth and school and other municipal officials seeking damages for the violation of Robinson's Federal and State civil rights, for Robinson's wrongful death, and on account of the town's negligent failure to provide security at the high school.

The defendants filed a motion to dismiss, pursuant to Mass. R.Civ.P. 12(b), 365 Mass. 754 (1974), or in the alternative for summary judgment, pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). A judge of the Superior Court treated the defendants' motion as one to dismiss and allowed it on the basis of the allegations of the complaint. We reverse that judgment insofar as it dismissed the negligence claims against the town but otherwise affirm the judgment.

1. Pertinent facts. [Note 3] The complaint alleges that on April 12, 1993, shortly before the beginning of classes at Dartmouth High School at 8:00 A.M., two groups of youths, including several high school students, were involved in a violent altercation on the school premises. Tensions between the two groups had escalated during the prior week and had erupted in a physical confrontation on the previous evening. School officials detained Shawn Pina and another student for their role in the altercation at school on April 12th. Pina's adversaries, Nigel Thomas, Carter Reed, and Gator Collet, at least one of whom was not enrolled in the high school, had immediately fled from the scene. Robinson, a friend of Pina (whose role in the school melee was unclear), had gone to class after the incident.

Pina warned Principal Donald King that Thomas, Reed and Collet had threatened to return to the high school to retaliate

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against him and his friends, including Robinson. Shortly after 8:00 A.M., King and other school officials witnessed the trio enter the front door of the high school. They were openly brandishing weapons, including two knives, a billy club, a baseball bat and a length of pipe. The school officials did nothing to confront or obstruct the three youths, who proceeded unimpeded to a second-floor classroom. Collet, Reed, and possibly Thomas entered the classroom believing that Pina would be found inside. When they failed to find Pina, they instead attacked and stabbed Robinson, who died in the classroom.

The complaint also alleged that, despite the statutory mandate of G. L. c. 71, s. 37H, requiring every school district to adopt and publish policies, including standards and procedures to assure school building security and the safety of students, the defendants had neither adopted nor published any such security and safety policies. They had in fact done nothing to implement any security or safeguards at Dartmouth High School beyond hanging a "No Trespassing" sign near the front door containing a notice that visitors should go to the school office. In particular, the front door was at all relevant times unlocked and unsecured. Only after the murder of Robinson did the defendants acknowledge the need for the creation, implementation and enforcement of security policies, procedures, and safeguards, and take concrete steps to establish security measures at the high school.

2. Negligence under G. L c. 258. The plaintiff's negligence claims, brought pursuant to the wrongful death statute, G. L. c. 229, s. 2, [Note 4] and the Massachusetts Tort Claims Act (Act), G. L. c. 258, were based on two theories: (1) the responsible municipal and school officials had negligently failed to institute any security measures to protect the high school students; and (2) the principal had negligently failed to respond to the foreseeable (and explicitly forewarned) threat of harm presented by the youths who murdered Robinson. The judge concluded that on the facts alleged the town was immune from liability under the Act. He ruled that the adoption of security measures was a discretionary function within s. 10(b) (see note 7, infra), and

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that the school officials' failure to act fell within the "public duty" rule of s. 10(i) (see note 9, infra, and related text). [Note 5] We conclude, to the contrary, that the plaintiffs negligence claims are not foreclosed by either statutory provision.

(a) Standard for rule 12(b)(6) motion. While the judge referred to the proper standard applicable to motions to dismiss, he did not apply it in the exceedingly liberal manner mandated in our cases. We elaborate the standard because of its overriding relevance:

"Under Mass.R.Civ.P. 12(b)(6), 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim.' Nader v. Citron, 372 Mass. 96 , 98 (1977) . . . . . Furthermore, the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiffs favor, are to be taken as true.' Ibid. . . . '[A] complaint is sufficient against a motion to dismiss if it appears that the plaintiff may be entitled to any form of relief, even though the particular relief he has demanded and the theory on which he seems to rely may not be appropriate.' Nader v. Citron, 372 Mass. at 104.

New England Insulation Co. v. General Dynamics Corp., 26 Mass. App. Ct. 28 , 29-30 (1988).

These generous and indulgent criteria have reduced a plaintiff's obstacle in surmounting a rule 12(b)(6) motion to dismiss for failure to state a claim to a minimal hurdle. Bell v.

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Mazza, 394 Mass. 171 , 183, 184 (1985). Connerty v. Metropolitan Dist. Commn., 398 Mass. 140 , 143 (1986). Disend v. Meadowbrook Sch., 33 Mass. App. Ct. 674 , 676 (1992). All that a plaintiff need do to resist such a motion is present a complaint that does no more than "sketch[] the bare silhouette of a cause of action." Coolidge Bank & Trust Co. v. First Ipswich Co., 9 Mass. App. Ct. 369 , 371 (1980). The plaintiff is to be given the benefit of any doubt, Kipp v. Kuecker, 7 Mass. App. Ct. 206 , 210 (1979), and must prevail over the motion unless it appears with certainty that he is entitled to no relief under any combination of facts that could be proved in support of his claims. Flattery v. Gregory, 397 Mass. 143 , 145-146 (1986). Spinner v. Nutt, 417 Mass. 549 , 550 (1994). Bahceli v. Bahceli, 10 Mass. App. Ct. 446 , 451 (1980).

In passing on a rule 12(b)(6) motion, the court is not to consider the unlikelihood of the plaintiff's ability to produce evidence to support otherwise legally sufficient complaint allegations, Mmoe v. Commonwealth, 393 Mass. 617 , 619-620 (1985); Goldman v. Belden, 754 F.2d 1059, 1066, 1067 (2d Cir. 1985), however improbable appear the facts alleged, Jenkins v. Jenkins, 15 Mass. App. Ct. 934 (1983); Reardon v. Commissioner of Correction, 20 Mass. App. Ct. 946 , 947 (1985), and "notwithstanding expressions of denial and incredulousness as to ultimate proof by the defendants." Eyal v. The Helen Bdcst. Corp., 411 Mass. 426 , 431 (1991). That the plaintiff alleges claims arising out of arguably discretionary actions by governmental defendants, or claims that otherwise appear to have little chance of success in light of the defenses under the Act, does not preclude successful resistance to a motion to dismiss. See Harry Stoller & Co. v. Lowell, 412 Mass. 139 , 142-143 (1992); Jean W. v. Commonwealth, 414 Mass. 496 , 513 (1993).

The plaintiffs claims here founded on the Act satisfy these extremely lenient standards and should have been ruled sufficient to resist the preliminary (and premature, see Kirkland Constr Co. v. James, 39 Mass. App. Ct. 559 , 564-565 [1995] [Brown, J. concurring [Note 6]]) challenge of undeveloped defenses based upon sections 10(b) and 10(j) of the Act.

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(b) Section 10(b). The Act provides that a public employer can be liable for damages "caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances . . ." G. L. c. 258, s. 2. Public employers are not, however, liable for claims that result from the performance of discretionary functions. G. L. c. 258, s. 10(b). [Note 7] The first step in determining whether a claim is foreclosed by the discretionary function exception in s. 10(b) is to decide "whether the [government] actor had any discretion to do or not to do what the plaintiff claims caused him harm." Harry Stoller & Co. v. Lowell, 412 Mass. at 141. If the actor "had no discretion because a course of conduct was prescribed by a statute, regulation, or established agency practice, a discretionary function exception to governmental liability has no role to play in deciding the case." Ibid. The second step is to determine whether the discretionary conduct involves policy making or planning, the only type of discretion immunized by s. 10(b). Ibid. We think the judge erred in reading the complaint as attacking "the nature and extent of school building and security" and the school committee's "failure to adopt appropriate or adequate policies" and "thus too readily conclud[ed] that the [defendant] satisfied the first part of the Stoller test." Coughlin v. Department of Correction, 43 Mass. App. Ct. 809 , 815 (1997).

The plaintiff contends that her claims, founded on the lack of security measures at the high school, are not barred by the discretionary function exception, because those responsible for the high school were required by statute to adopt safety policies

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for the school. General Laws c. 71, s. 37H, provides, in relevant part: "The superintendent of every school district shall publish the district's policies pertaining to the conduct of teachers and students. . . . Each school district's policies pertaining to the conduct of students shall include the following: . . . standards and procedures to assure school building security and safety of students and school personnel." (Emphasis added).

The language regarding the adoption of "standards and procedures to assure school building security and safety of students and school personnel" by a school district is mandatory. The plaintiff's fundamental allegation is that the defendants had neither adopted nor implemented any security policy, procedures or safeguards for the high school. Taking this allegation as true and with all inferences in favor of the plaintiff, under the first part of the test enunciated in Harry Stoller & Co. v. Lowell, 412 Mass. at 141, the plaintiff's claim is not foreclosed by the discretionary function exception. See Alake v. Boston, 40 Mass. App. Ct. 610 , 612 (1996) (violation of specific governmental policy negates the s. 10[b] exception). Cf. Cady v. Plymouth-Carver Regional Sch. Dist., 17 Mass. App. Ct. 211 , 216-217 (1983) ("We can imagine circumstances in which ignoring obviously dangerous proclivities of a student might be negligent [and not immune under s. 10(b)] because the standards are clear. Permitting a student who has attacked another with a knife ostentatiously to continue to carry one is an example"). [Note 8]

(c) Section 10(j). Subsection (j) of section 10 of the Act provides immunity from "any claim based on an act or failure

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to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer." [Note 9] Although no case has yet definitively interpreted the meaning of the words "not originally caused by," [Note 10] we are able to apply them here in accordance with their plain meaning. Lawrence v. Cambridge, 422 Mass. 406 , 410 (1996). That meaning appears particularly clear against the background not only of the unstinting standards of rule 12(b)(6), but also of (a) the policy that the Act is to be construed liberally for the accomplishment of its remedial purpose, to provide an effective remedy for persons injured as a result of the negligence of governmental entities in the Commonwealth, see Irwin v. Ware, 392 Mass. 745 , 769 (1984); Alake v. Boston, 40 Mass. App. Ct. at 613; (b) judicial recognition that deficient school security can be a causative factor when students at the school are subjected to physical attack by outsiders who invade the school, see Mullins v. Pine Manor College, 389 Mass. 47 , 58-59, 62-63 (1983); (c) the municipal obligation to provide for and enforce the school attendance of all resident children, see G. L. c. 76, s. 1; Board of Education v. School Comm. of Quincy, 415 Mass. 240 , 244-245 (1993); and (d) the duty of those responsible for public schools to provide children not only with an adequate public education but also with a safe and secure environment in which they can learn. See G. L. c. 71, s. 37H; Doe v. Superintendent of Schs. of Worcester, 421 Mass. 117 , 131 (1995); Alter v. Newton, 35 Mass. App. Ct. 142 , 145 (1993).

In light of those guiding principles, we view the complaint as plainly overcoming the immunity of s. 10(j), by alleging facts establishing a claim based upon the defendant public employees' failure to act to prevent or diminish the harmful consequences of a condition or situation which was originally caused by them. Their alleged mismanagement of the high school security system

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by failing to adopt or implement any security measures created, i.e., originally caused, a condition or situation of total insecurity against interlopers at the school, the foreseeable harmful consequences of which - namely, the invasion and fatal attack on Robinson by the returning trio of violent students - the principal and other school officials wholly failed to prevent or diminish.

In other words, the defendant public employees here have been alleged not merely to have failed to prevent or mitigate a privately caused harmful situation, but rather to have done something more; namely, to have themselves been involved in creating the initial injury-causing condition of physical insecurity. Moreover, by subsequently failing, upon the violent youths' return and entry into the school, to implement any interventionist security measures to deter the known and imminent threat, the school officials exacerbated the hazardous condition they had created (and continued to maintain), thereby materially contributing to the circumstances that directly led to the tortious injury. Those scenarios constitute risk-creating conduct on the part of public employees that is sufficient to overcome the bar of s. 10(j) at the motion to dismiss stage. Cf. Cyran v. Ware, 413 Mass. 452 , 467-468 (1992) (O'Connor, J. concurring); Glannon, Liability for "Public Duties" Under the Tort Claims Act: The Legislature Reconsiders the Public Duty Rule, 79 Mass. L. Rev. 17, 26-27 (1994). [Note 11], [Note 12]

3. Civil rights claims. The judge correctly ruled that the

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complaint failed to allege, however liberally construed, the requisite threats, intimidation or coercion required to give rise to a claim under G. L. c. 12, s.s. 11H and 11I. See Freeman v. Planning Bd. of W. Boylston, 419 Mass. 548 , 564 (1995). His dismissal of the plaintiffs claims under 42 U.S.C. s. 1983 was also proper under applicable Federal precedent, because (a) Robinson was murdered by private persons not acting under color of State law, DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 195-196 (1989); (b) the municipal and school officials had no constitutional obligation to protect Robinson, id. at 196-202; see Estate of Gilmore v. Buckley, 787 F.2d 714, 719 (1st Cir. 1986); (c) there is a lack of relevant Federal authority supporting (and uniform decisions rejecting) the plaintiffs argument that the DeShaney rationale does not apply to students in school "custody," see Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 202 (5th Cir. 1994); Arroyo v. Pla, 748 F. Supp. 56, 59-61 (D.P.R. 1990) (involving a

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claim by a parent whose son was shot to death by another student during class); and (d) the defendants would be entitled to qualified immunity from s. 1983 liability in light of the existing state of the law as it applied to school situations, since it did not clearly establish a student's constitutional right to be free from attack by private parties during the school day. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Breault v. Chairman of the Bd. of Fire Commrs. of Springfield, 401 Mass. 26 , 31-32 (1987).

4. Conclusion. We reverse so much of the judgment as dismissed the plaintiff's claims under G. L. c. 229, s. 2, and c. 258, s. 2, and affirm the judgment in all other respects. We remand the case to the Superior Court for further proceedings consistent with this opinion.

So ordered.

KASS, J. (dissenting). When the court in Jean W. v. Commonwealth, 414 Mass. 496 , 499 (1993), announced that it would abolish the public duty rule, it coupled its announcement with an invitation to the Legislature "to consider whether it wishes to respond to this anticipated change by passing additional limitations on liability." Ibid. The Legislature responded with St. 1993, c. 495, s. 57.

That amendment [Note Dissent-1] added, among other limitations of governmental tort liability, a new subparagraph (i) to G. L. c. 258, s. 10, which exempted governmental units from liability for

"any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer."

By clause 1 to subparagraph (j), the liability exclusion was not to apply to

"any claim based upon explicit and specific assurances of

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safety or assistance . . . made to the direct victim or a member of his family or household by a public employee, provided that the injury resulted in part from reliance on those assurances."

To what degree the public ought to compensate persons for damages inflicted by third parties (the murder in this case) or other extraneous causes (as the fire in Cyran v. Ware, 413 Mass. 452 [1992]) that competent public action might have prevented is a policy question about which there can be intelligent differences of opinion, as the four separate opinions in Jean W. v. Commonwealth richly illustrate. Within only constitutional limits, it is the task of the Legislature to resolve such public policy questions and, in this instance, it seems to me that the Legislature has done so unmistakably. No school official stabbed Robinson to death. It requires convoluted reasoning to say, as does the majority, that the school authorities originally caused the violent act of Collet, Reed and, possibly, Thomas. The school authorities might have prevented the killing but failing to prevent, under the statute, is in the excluded category. The majority's outflanking of the statutory exclusion returns the courts to making the sort of indefensible distinctions that Jean W. V. Commonwealth, 414 Mass. at 499, lamented and that gave rise to the 1993 amendments in the first place.

There is nothing obscure about the manner in which s. 10(j) is written. The majority opinion is a regrettable exercise in judicial nullification of a legislative act. If one were to look for assurance that the Legislature intended to exclude just the sort of action brought here, it is instructive to examine a draft amendment first proposed by the Attorney General in the wake of the Jean W. opinion. The Attorney General's draft s. 10(i) read:

"any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation not originally caused by the public employee or any other person acting on behalf of the public employer."

The reader will observe that the Legislature took the trouble to add the phrase "the violent or tortious conduct of a third person," precisely the case we have here. See Glannon, Liability for "Public Duties" Under the Tort Claims Act: The Legislature Reconsiders the Public Duty Rule, 79 Mass. L. Rev. 17 32 (1994).

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There is no claim based upon "explicit and specific assurances of safety or assistance" to the victim. A further category of exclusion from the s. 10(j) limitation of liability is that which appears in clause (3), "any claim based on negligent maintenance of public property," but this refers to keeping property in good repair, not the installation of security systems and procedures. See Glannon, supra at 28.

I would affirm the judgment of dismissal based on G. L. 258, s. 10(i).