RICHARD J. MCCARTHY, administrator, [Note 1] vs. CITY OF WALTHAM (and a companion case [Note 2]).

FECTEAU, J. The city of Waltham (city) appeals from a Superior Court judgment awarding the plaintiff $100,000 under the provisions of the Massachusetts Tort Claims Act (MTCA), G. L. c. 258, § 2, and under G. L. c. 229, § 2, [Note 3] for the wrongful death of his son, James McCarthy (James). James had been held in protective custody by city police, and he committed suicide shortly after they released him. During trial, the plaintiff claimed that the police were negligent for failing to call James's family members prior to releasing him. The plaintiff contends that the police made explicit promises to him and to James's aunt, Betty Ann Marino (Marino), that someone from the police department would notify Marino before releasing James so that she could be present to take him into her care. Instead, the police simply released James without making the telephone call. The plaintiff does not contend that the police were negligent in placing James in custody, in failing to adequately protect James while in custody, or in failing to keep him in custody.

On appeal, the city generally contends that it was entitled to sovereign immunity pursuant to G. L. c. 258, § 10, and the judge wrongly denied these protections. The city claims that the trial judge wrongly denied its motions for directed verdict and

Page 556

judgment not withstanding the verdict (JNOV) and that the judge erred in not instructing the jury in accordance with its requested instructions. [Note 4] We reverse.

1. Background. On March 4, 1997, at approximately 3:43 A.M., the plaintiff, a resident of Florida, called the city's 911 system and said that he had just received a disturbing telephone call from his son James, who lived in the city. The plaintiff told the dispatcher that he thought James "might be having an overdose . . . he's sounding real bad . . . saying 'I love you,' and, you know, you can just barely understand him." [Note 5] The dispatcher [Note 6] then radioed that "somebody might be committing suicide" with "some sort of drugs." [Note 7] Officer Palmer responded to the radio alert and drove to James's apartment. He heard James yelling from inside the apartment and asked him to come outside; James complied. Officer Palmer told James his father had called the police. James denied the possibility that he was going to harm himself by taking drugs or by other means. During this conversation, James became increasingly louder and upset and yelled at the officer. Officer Palmer then took James into protective custody as an "incapacitated person" because he smelled of alcohol, seemed intoxicated, and did not respond to the officer's request to calm down. James never told Officer Palmer that he was suicidal at the scene, during their ride to the police station, or during booking. James was booked around 4:00 A.M. He denied any conversation with his father in which he was despondent and denied any attempt at or contemplation of suicide, although he made statements indicating that he was upset. [Note 8] The booking officer did not

Page 557

observe any signs during booking indicative of suicidal thoughts or intentions.

At 4:03 A.M., the plaintiff called the police, inquiring about James. He was told by another dispatcher that James was now at the station. The plaintiff asked the dispatcher to have James call him when they finished with James's booking, which the dispatcher agreed to do. The plaintiff asked what was wrong with James and was told that "he was talking about, uhm, contemplating suicide." [Note 9] James's father was told that James would be kept eight or twelve hours.

At 5:32 A.M., Marino, who resided in Westborough, called the 911 emergency telephone line and asked when James would be released. A police cadet, acting as dispatcher, informed Marino that she did not know when that would be but that James would be able to make a telephone call when released. Marino expressed concern because she did not think that James would make the call, and she wanted to be there when he was released. The conversation continued in this vein, and the dispatcher said, "I could have the person who's -- releases him have them give you a call to tell you that he's going to be released, and then, like, maybe ten minutes before he gets released so that you can be on your way down here." Marino replied, "[I]f an officer could call us and give us, you know, 15, 20 minutes to get there --," to which the dispatcher said, "Yup. No problem." [Note 10] Marino gave her telephone number to the dispatcher, who wrote it on the booking sheet with this notation: "when released call Aunt Bettie Marino, . . . she'll be here to pick him up."

At 7:00 A.M., another cadet dispatcher replaced the cadet who

Page 558

had spoken with James's aunt and father. At 8:15 A.M., Marino called again, asking what time James was going to be released and if James could call her at her work in about fifteen minutes. She was told by the dispatcher that they wanted James to sleep it off, so he was not sure what time James would be released but if she left her number, "when he wakes up, . . . and we're ready to release him, I can have him call you then." She answered, "I hope he will." She reported that she was going to work, but she would leave her telephone for her husband to answer. She also gave her work number in case no one answered her first number. Both numbers were written on a note attached to the booking sheet. The 911 tape also recorded a statement overheard in which she said to her husband that "they're going to call. . . ." She explained at trial that she misunderstood the last words of the dispatcher to mean that "I'll call you." During her testimony, she also described her expectation that the police "weren't going to release him until they called me so [I] could pick him up and take him from them," and that "all I wanted them to do was to keep him safe until we got there," although Marino admitted that she was uncertain that James would have actually accompanied her.

During the five hours James was in custody, he was under video monitoring by the dispatchers. There were no other calls made to or from police before James was released at approximately 9:00 A.M. Videotapes of James at the booking desk at 4:00 and 9:00 A.M. were shown to the jury. Approximately one hour after his release, James's sister, accompanied by her boyfriend, went to James's apartment, where they found him hanging from a pipe. They left to call for help, and upon the arrival of police and paramedics, James was cut down and a pulse was detected. He never regained consciousness and was pronounced dead the next day.

Before trial, the city filed a motion for summary judgment, which was denied. The city contended that it was not negligent in the handling of the custody and release of James and that it was immune from plaintiff's claims pursuant to G. L. c. 258, § 10. In her decision, the motion judge concluded generally that "[t]he current claim does not stem from the fact that the police were negligent in their release of the Decedent, but rather that the police were negligent in failing to carry out their promises

Page 559

to inform the Decedent's family of his release." While the motion judge specifically referenced three of the four immunities the city raised, she denied the city's motion for summary judgment based primarily on § 10(j)(1). [Note 11] See Lawrence v. Cambridge, 422 Mass. 406 , 411-413 (1996).

The city did not appeal from the denial of the motion, and a three-day jury trial began on October 4, 2006. The issues for the jury at trial were (1) whether the police were negligent in the manner of James's release from custody, (2) whether the police made explicit and specific assurances of safety or assistance to one or more of the McCarthy family in regard to the manner of James's release, and (3) whether James's suicide resulted, at least in part, from the family's reliance on such assurances. The jury returned its special verdict in favor of the plaintiff on October 10, 2006, and awarded him $100,000.

2. Discussion. The city's general argument on appeal focuses on what it contends was the trial judge's misapplication of the exception to immunity contained in G. L. c. 258, § 10(j)(1). In pertinent part, the provisions of § 10(j) immunize the city from

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

By virtue of § 10(j)(1), however, that immunity is inapplicable to "any claim based upon explicit and specific assurances of 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."

Page 560

The city contends that the trial judge, like the motion judge, [Note 12] focused solely on the exception contained in § 10(j)(1), in the process failing to give appropriate weight to the immunity contained in § 10(j) itself, and to the other immunities § 10 contains. a. Directed verdict. "The denial of a motion for directed verdict or a motion for judgment notwithstanding the verdict both present questions of law reviewed under the same standard used by the trial judge. Review of these motions requires us to construe the evidence in the light most favorable to the nonmoving party and disregard that favorable to the moving party. In other words, the standard to be employed is whether the evidence, construed against the moving party, justifies a verdict against him. Our duty . . . is to evaluate whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the nonmovant." (Internal quotations and citations omitted.) O'Brien v. Pearson, 449 Mass. 377 , 383 (2007).

The city's motion for a directed verdict should have been allowed because the evidence that the police made "explicit and specific assurances of safety or assistance" to James's family members, when viewed in the light most favorable to the plaintiff, Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6 , 7 n.1 (1983), was insufficient, as matter of law, to overcome the immunity afforded the city under G. L. c. 258, § 10(j). By focusing on the manner in which James was released, the judge elevated the exception to sovereign immunity so that it became, in effect, an independent theory trumping all the immunity provisions of the MTCA under which the city sought protection. [Note 13]

Page 561

In Jacome v. Commonwealth, 56 Mass. App. Ct. 486 , 493 (2002), we stated, "[T]he Commonwealth did not originally cause the condition or situation which brought about the harm, and thus was immune from suit for the loss. Hence claims arising from circumstances intimately related to that condition or situation, and the resulting harm, are also barred. The alternative would be to permit imaginative pleading and fractionalizing of the claims that would undo the immunity that § 10(j) preserves."

"The Massachusetts Tort Claims Act, G. L. c. 258 . . . , allows those with valid claims in tort to recover against governmental entities." Lawrence v. Cambridge, 422 Mass. at 408. [Note 14] General Laws c. 258, § 10(j), "establishes that the Commonwealth shall, with certain exceptions, be immune with respect to '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.' " Jacome v. Commonwealth, supra at 489. The plaintiff does not suggest that the city's actions were an original cause of harm; otherwise, he would not have needed to rely on the exception to immunity that § (10)(j)(1) provides. Furthermore, there can be no serious question that the original cause of harm in James's taking of his own life was his suicidal frame of mind; any other cause for which the city might be perceived as a responsible actor would likely have been too remote or too passive. See Brum v. Dartmouth, 428 Mass. 684 , 695 (1999) (in light of intention of § 10(j) "to provide some substantial measure of immunity from tort liability to government employers . . . we must not adopt an interpretation of the statute that construes the words 'originally caused' so broadly as to encompass the remotest causation and preclude immunity in nearly all circumstances").

"The exception to immunity contained in G. L. c. 258, § 10(j)(1), . . . requires that 'explicit' and 'specific' assurances

Page 562

of safety, beyond general representations, be made by an officer. The phrase 'explicit and specific assurances' requires 'a spoken or written assurance, not one implied from the conduct of the parties or the situation,' and the 'terms of the assurance must be definite, fixed, and free from ambiguity.' " Ariel v. Kingston, 69 Mass. App. Ct. 290 , 293 (2007), quoting from Lawrence v. Cambridge, 422 Mass. at 410. The court in Lawrence also noted the definitions of " '[e]xplicit' . . . as 'characterized by full clear expression: being without vagueness or ambiguity: leaving nothing implied,' and '[s]pecific' . . . as 'characterized by precise formulation or accurate restriction.' " 422 Mass. at 410 n.5, quoting from Webster's Third New Intl. Dictionary 801, 2187 (1993).

There was insufficient evidence that the police made specific and explicit assurances in the series of telephone calls between James's family and the police. Specifically, the record does not show that any 911 dispatcher ever told the plaintiff or James's aunt that the police would not release James until someone got to the station. The plaintiff principally relies on the conversation that occurred at 5:32 A.M., the first time Marino called the police and asked when James would be released. The dispatcher had said, "I could have the person who's -- releases him have them give you a call to tell you that he's going to be released, and then, like, maybe ten minutes before he gets released so that you can be on your way down here." This is the closest to a promise of assurance in any of the family's conversations with the dispatchers, but insufficient in our view, as we conclude, as matter of law, that this does not constitute an assurance or promise of safety or assistance.

Further, at 8:15 A.M., forty-five minutes before James was released, Marino called the police station again and spoke with a different dispatcher who stated, "[W]hen he wakes up, . . . and we're ready to release him, I can have him call you then." Whatever assurances Marino thought the dispatcher gave from the 5:32 A.M. conversation were dissipated by the 8:15 A.M. conversation. Cf. Lawrence v. Cambridge, supra at 412.

This latter statement did not contain a promise to Marino that the police would call her before James was released, and Marino's reply, "I hope he will [call me]," indicates to us that

Page 563

Marino herself did not think the police had promised her they would call before releasing James. "While § 10(j)(1) requires 'that the injury result[] in part from [the promisee's] reliance on [the] assurance,' such reliance cannot supply the terms that cause the assurance to suffer from a lack of specificity at the time it was made." Id. at 411. It is unreasonable to interpret this 8:15 A.M. conversation as an explicit or specific promise or assurance of safety or assistance; additionally, this last conversation at 8:15 A.M. could be interpreted as a withdrawal of previous assurances. "We note also that if the police had withdrawn the promise, no further reliance on it would be warranted and by the terms of the statute the city's exposure to liability would cease." Id. at 412.

Thus, in the light most favorable to the plaintiff, the trial judge erred in denying the city's motions for directed verdict and JNOV, since a jury could not rationally conclude, without engaging in speculation or conjecture, that there was sufficient evidence of explicit and specific assurance of safety or assistance in order to overcome the protection that the immunity of § 10(j) afforded the city "with respect to any claim for a loss not originally caused by the public employer." Jacome v. Commonwealth, 56 Mass. App. Ct. at 489. [Note 15]

b. Other issues. While they do not affect our decision, we briefly address other issues raised by the city that relate to its additional claims of immunity.

i. General Laws c. 258, § 10(a). We find no error in the judge's denial of the city's motion for directed verdict on the ground that immunity under G. L. c. 258, § 10(a), applied to the plaintiff's claim. Section 10(a) provides immunity from "any claim based upon an act or omission of a public employee when such employee is exercising due care in the execution of any statute or any regulation of a public employer . . . ." That the plaintiff's claims were subsumed within the protective custody requirements of G. L. c. 111B, § 8, fifth par. (providing, in relevant part, that "an incapacitated person may be held

Page 564

in protective custody . . . until he is no longer incapacitated or for a period of not longer than twelve hours, whichever is shorter"), was not sufficiently established by the evidence; the immunity of § 10(a) was not so clearly established, as matter of law, that the city's motion for a directed verdict should have been allowed on this basis. However, the relationship of the plaintiff's claim with the city's duty to comply with G. L. c. 111B, § 8, fifth par., and whether this relationship provided immunity under the provisions of § 10(a) was an issue of fact fairly raised by the evidence that the jury should have been allowed to consider. If the jury were to decide that the facts were sufficient to establish this immunity, the remaining question whether there were explicit and specific assurances would no longer have been applicable, as each statutory immunity stands independently and alternatively. See Ariel v. Kingston, 69 Mass. App. Ct. at 293-294 (error for trial judge to conclude that, notwithstanding the availability of immunity under other provisions of § 10, the § 10[j][2] exception arguably applied and so the case could proceed to the jury). By not instructing the jury on § 10(a) immunity, the judge erroneously removed it from the jury's consideration; the facts were not clearly established in the evidence either way, and the jury were entitled to analyze the facts against both theories of the case.

ii. General Laws c. 258, § 10(h). The city also contends that it had immunity under G. L. c. 258, § 10(h), which provides immunity from "any claim based upon the failure . . . to provide adequate police protection, prevent the commission of crimes, investigate, detect or solve crimes, identify or apprehend criminals or suspects, arrest or detain suspects, or enforce any law . . . but not including claims based upon . . . or as otherwise provided in clause (1) of subparagraph (j)." Therefore, as with the immunity provision discussed above, a promise or assurance of safety or assistance can operate as an exception to this immunity. We fail to see how this would apply to the circumstances here. We think the judge correctly declined to direct a verdict in favor of the city on this ground and correctly omitted from his instructions any reference to this immunity provision.

iii. General Laws c. 258, § 10(i). Section 10(i) provides immunity from "an[y] claim based upon the release, parole, furlough or escape of any person, including but not limited to a

Page 565

. . . detainee, . . . patient or client, from the custody of a public employee or employer or their agents, unless gross negligence is shown in allowing such release, parole, furlough or escape" (emphasis added). Although it does not appear that any case has discussed whether this section is applicable to a claim for injuries to the person released from custody, in addition to third parties who are injured by the person released, we conclude that the rulings of the motion and trial judges that excluded application of this form of immunity to the plaintiff's claim were not erroneous. In our view, the intent of the statute is to allow a form of remedy to those injured by the actions of the person released. See Kent v. Commonwealth, 437 Mass. 312 (2002). This intention is inferred from the language emphasized above that creates an exception to immunity when "gross negligence is shown in allowing such release, parole, furlough or escape."

In case no. 08-P-586, the judgment is reversed, the verdict is set aside, and judgment shall enter for the city. In case no. 09-P-525, the appeal is dismissed, not on the merits, but because it is moot.

So ordered.