ELAINE EYSSI & others [Note 1] vs. CITY OF LAWRENCE.

LIACOS, C.J. On September 21, 1986, Officer Jacob Eyssi of the Lawrence police department was assigned to patrol the southeast sector of the city alone in a police cruiser. At 6:25 A.M., police received a call reporting an incident of domestic violence at 203 Crawford Street. The police dispatcher directed Officer Eyssi to attend to that incident. The dispatcher also directed Officer William Brown, who patrolled a different sector of the city alone in a police cruiser, to back up Eyssi.

Eyassi was the first to arrive at the reported address. While Eyssi was still in his cruiser, a woman (Lopez) ran out of 203 Crawford Street with a baby in her arms. Lopez circled Eyssi's cruiser a number of times, screaming at him to come out of the automobile. As Eyssi did so, a man (Vasquez) came out of 203 Crawford Street and proceeded toward Lopez. Eyssi told Vasquez to "take it easy," at which point Vasquez turned away from Lopez and attacked Eyssi. Vasquez knocked Eyssi down and repeatedly banged his head against the ground.

The beating stopped when a neighbor (Grillo) came out of her apartment screaming for help and yelling at Vasquez to let go. Vasquez let go of Eyssi and began "leaping" toward Grillo. At that time, another neighbor (Roeger) came running up Crawford Street. When he heard Roeger coming, Vasquez told Lopez, "I'm going to come back and finish you," and fled from the scene.

Grillo and Roeger found Eyssi lying on the ground unconscious. They called the police. This call was received at approximately 6:37 A.M., more than ten minutes after Eyssi and Brown were dispatched to 203 Crawford Street. Brown had not yet arrived at the scene. [Note 2] Eyssi was taken to Lawrence General Hospital. He underwent an emergency craniotomy, in the course of which macerated brain tissue was removed. The damaged parts of Eyssi's brain controlled his social

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awareness, his ability to get along with others, his motivation, and his inhibition of inappropriate behavior and speech.

On September 2, 1988, Eyssi, his wife (Elaine), and his two minor children (Stephanie and Sharon), commenced the present action against the city of Lawrence in the Superior Court. The plaintiffs' complaint alleged that Brown negligently failed to "promptly respond as the back-up unit to Jacob Eyssi in violation of . . . the Rules and Regulations of the Lawrence Police Department." The complaint further alleged that the department knew or should have known that Brown would fail to perform his duty in the circumstances. The complaint prayed for damages pursuant to the Massachusetts Tort Claims Act, G. L. c. 258, Section 2 (1992 ed.). Count I requested damages for Eyssi's injuries. Count II requested damages for Elaine's loss of her husband's consortium. Counts III and IV requested damages for Stephanie's and Sharon's loss of their father's consortium. [Note 3]

The case was tried before a jury between May 28 and June 1, 1992. In addition to evidence of the facts set forth above, the plaintiffs introduced evidence indicating that Brown negligently failed to back up Eyssi. When Brown received the dispatch call, he was 2.3 miles from 203 Crawford Street. Police regulations classified the call as an emergency domestic violence call and required an officer in Brown's position immediately to proceed to the scene. There was evidence that a reasonably prudent officer would have driven 2.3 miles in less than four minutes. As to damages, the plaintiffs introduced evidence of Eyssi's reduced capacity to function normally in his family unit.

The jury returned a verdict for the plaintiffs. The jury awarded $225,000 to Elaine, [Note 4] $15,000 to Stephanie, and $10,000 to Sharon. The city moved for entry of judgment notwithstanding the verdict. The city argued that, as matter

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of law, there was insufficient evidence that its negligence was the proximate cause of the damages sustained by the plaintiffs. The city also contended that the spouse or child of an injured governmental employee has no cause of action for loss of consortium under the Massachusetts Tort Claims Act. Finally, the city argued that the exclusivity provision of the Massachusetts Tort Claims Act barred the plaintiffs' cause of action. [Note 5] The judge denied the city's motion. This appeal followed. We transferred the case to this court on our own motion.

1. Spouses' and Children's Right to Recover Damages Against Governmental Employer for Loss of Employee's Consortium.

In order to provide the background necessary to our discussion, we begin with a brief description of two statutory schemes relevant to our analysis, the Massachusetts workers' compensation act, G. L. c. 152 (1992 ed.), and the statutes governing the provision of benefits to injured police officers and fire fighters, G. L. c. 41, Sections 100, 111F (1992 ed.).

The workers' compensation act "is a `humanitarian measure' which the Legislature first enacted in 1911 (St. 1911, c. 751) in response to strong public dissatisfaction with the remedies provided by traditional tort actions." Murphy v. Commissioner of the Dep't of Indus. Accidents, 415 Mass. 218, 222 (1993). Under the act, employees who waive their right to sue in tort may obtain "compensation for loss of wages or earning capacity caused by a work-related injury, regardless of the fault of their employers or the foreseeability of harm." Id., and cases cited. The 1911 version of the act did not encompass governmental employees. See Seibolt v. County of Middlesex, 366 Mass. 411, 414 (1974). "[W]hile a series of amendments has since extended coverage to most governmental employees, the two groups which have never been brought under this umbrella are members of a police or

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fire force." Wormstead v. Town Manager of Saugus, 366 Mass. 659, 664 n.5 (1975). The exclusion of police officers and fire fighters from the scope of the act remains in force today. See G. L. c. 152, Section 69 (1992 ed.).

In 1952, the Legislature provided for leave without loss of pay for police officers and fire fighters injured in the performance of their duty. See G. L. c. 41, Section 111F, inserted by St. 1952, c. 419. See also Wormstead, supra. The Legislature also provided for payment by municipalities of the medical and related expenses of a police officer or a fire fighter injured "while acting in the performance and within the scope of his duty without fault of his own." G. L. c. 41, Section 100. Eyssi has received benefits under these provisions. [Note 6]

The Legislature enacted the Massachusetts Tort Claims Act in 1978, after this court announced its intention to abandon the doctrine of governmental immunity. See Whitney v. Worcester, 373 Mass. 208 (1977). Section 2 of the Act provides that governmental entities shall 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, Section 2 (1992 ed.). This language extends the application of the traditional tort theories of liability to governmental entities. See Dinsky v. Framingham, 386 Mass. 801, 804-805 (1982). See also A.L. v. Commonwealth, 402 Mass. 234, 252 (1988) (O'Connor, J., dissenting); Irwin v. Ware, 392 Mass. 745, 752 (1984); Gallant v. Worcester, 383 Mass. 707, 714 (1981).

The common law of this Commonwealth recognizes the right of a wife or a husband to recover damages for the loss of his or her spouse's consortium. See Diaz v. Eli Lilly & Co., 364 Mass. 153, 167 (1973). A child has a similar common law right to recover for loss of parental consortium if he or she can show sufficient dependence on the parent.

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Ferriter v. Daniel O'Connell's Sons, 381 Mass. 507, 516-517 (1980). [Note 7] In Ferriter, supra at 524-530, we held that such recovery was available against the injured spouse's employer even if the injured spouse received workers' compensation benefits under G. L. c. 152, Section 24. [Note 8] In 1985, as part of a comprehensive revision of the workers' compensation act, the Legislature amended Section 24 to bar loss of consortium claims against an employer unless the employee gave notice at the time of hire that he or she did not waive his common law rights. See St. 1985, c. 572, Section 35.

The city argues that this amendment to the workers' compensation act evinces a legislative intent to abrogate the common law cause of action for loss of consortium where an injured police officer receives benefits under G. L. c. 41, Sections 100 and 111F. The city concedes that these sections contain no language abrogating such cause of action. However, the city argues that Sections 100 and 111F form the functional equivalent to the workers' compensation statute and should be construed to embody the statutory bar to loss of consortium claims which the Legislature included in G. L. c. 152. The city contends that the cases construing language in Section 100 and Section 111F have done so in light of analogous provisions of G. L. c. 152, and that we should do the same here. In support of this argument, the city cites such cases as Blair v. Selectmen of Brookline, 24 Mass. App. Ct. 261, 264 (1987), S.C., 26 Mass. App. Ct. 954 (1988); Allen v. Selectmen of Weymouth, 15 Mass. App. Ct. 1009 (1983); DiGloria v. Chief of Police of Methuen, 8 Mass. App. Ct. 506, 512 (1979).

We are not persuaded by the city's argument. It is well established that "an existing common law remedy is not to

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be taken away by statute unless by direct enactment or necessary implication." Ferriter, supra at 521, citing King v. Viscoloid Co., 219 Mass. 420, 425 (1914). Moreover, "[a] statute is not to be interpreted as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed." Riley v. Davison Constr. Co., 381 Mass. 432, 438 (1980), quoting Pineo v. White, 320 Mass. 487, 491 (1946). The 1985 amendment to the workers' compensation act did not alter these established canons of statutory construction. Accord MacQuarrie v. Balch, 362 Mass. 151, 152 (1972) (Legislature presumed to be aware of prior decisions of this court). Nor does the 1985 amendment state that consortium actions against public employers of police and fire fighters are barred. Had the Legislature intended the provisions of Section 100 or Section 111F to abrogate the common law rights of a police officer's spouse or child, we think it would have done so explicitly. Cf. Riley, supra at 436-438 (legislative abolition of contributory negligence did not repeal by implication related doctrine of assumption of the risk). [Note 9]

Our conclusion does not imply that we disapprove of the cases harmoniously construing analogous provisions of the workers' compensation act and of Sections 100 and 111F. See Boswell v. Zephyr Lines, Inc., 414 Mass. 241, 247 (1993) (when possible, related statutes should be construed harmoniously "so as to give rise to a consistent body of law"). We decline, however, to hold that those statutes are so intricately related as to warrant the wholesale adoption of all amendments to one into the other. As the fact of this case illustrates, police officers (and fire fighters) confront daily risks which most working people ordinarily do not encounter. the Legislature could have concluded that families of those who engage in such comparatively dangerous -- yet socially beneficial--

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lives are entitled to greater protection against sudden loss of consortium, companionship, and society. [Note 10]

Accordingly, we hold that the 1985 amendment to G. L. c. 152 does not abrogate the common law cause of action for loss of consortium of the spouse or child of a police officer. [Note 11]

2. The Exclusivity Provision of the Tort Claims Act.

General Laws c. 258, Section 2, provides that "[f]inal judgment in an action brought against a public employer under this chapter shall constitute a complete bar to any action by a party to such judgment against such public employer or public employee by reason of the same subject matter." We have rejected the argument that this exclusivity provision does not apply where an injured employee has begun collecting benefits before bringing an action under the Tort Claims Act. Monahan v. Methuen, 408 Mass. 381, 386 (1990). In Monahan, we held that an injured police officer or fire fighter who already had recovered -- and who would continue to

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recover benefits -- under G. L. c. 41 had no independent cause of action against the same governmental entity pursuant to the Tort Claims Act.

The city argues that the principles set forth in Monahan govern the present case and preclude the plaintiffs' recovery. The city notes that Jacob Eyssi is presently receiving accidental disability retirement benefits pursuant to G. L. c. 32, Section 7 (1992 ed.). [Note 12] The city concedes that the plaintiffs receive no such benefits but it argues that they may become entitled to some form of compensation under c. 32 in the future. [Note 13] For example, the city claims that Elaine will be entitled to retirement benefits if Eyssi dies as a result of the injuries which he sustained on September 21, 1986. See G. L. c. 32, Section 9 (1992 ed.). The city also argues that, had Eyssi died from such injuries while on accidental disability retirement, Stephanie and Sharon also would have been entitled to benefits provided that Elaine predeceased Eyssi or remarried after his death. G. L. c. 32, Section 9. The availability of such potential benefits, the city contends, brings the present case within the rationale of Monahan.

Because the Tort Claims Act was enacted as a response to our decision in Whitney v. Worcester, supra, we "have previously looked to the Whitney decision in interpreting portions of the Tort Claims Act. See Patrazza v. Commonwealth, 398 Mass. 464, 467 (1986). In Whitney, we suggested that a consideration in determining whether governmental immunity should attach is whether there existed `an alternate remedy available to the injured individual other than an action for damages.' Whitney v. Worcester, supra at 219." Monahan, supra at 387. Such consideration, however, was not the only

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one embraced by Whitney. That case also gave considerable weight to the "public interest in fairness to injured persons," which we said should be balanced with the public interest in "promoting effective government." Whitney, supra at 216.

We conclude that extending the Monahan absolute bar to recovery to the present case would not further the Tort Claims Act's accommodation of these competing interests. Monahan was based on the need to avoid an anomalous rule whereby plaintiffs could elect to obtain damages under c. 41 and proceed later pursuant to the Tort Claims Act. By contrast, the alternate remedies available to the plaintiffs in the present case are prospective and hypothetical. Moreover, because such damages are contingent on Eyssi's death, they do not compensate Eyssi's family for the hardship of witnessing and experiencing the degradation of his mental health. See Diaz v. Eli Lilly & Co., 364 Mass. 153, 160 (1973), quoting Ekalo v. Constructive Serv. Corp. of Am., 46 N.J. 82, 84 (1965) (crux of wife's loss of consortium cause of action is right to receive compensation for "loss of companionship and affection, of sexual enjoyment, and of prospects of motherhood, when her husband has been reduced to a husk of manhood by physical and psychological injury caused by the negligent fault of the defendant, when she has been changed `from a loving wife into a lonely nurse'"). Accordingly, we decline to extend the Monahan rule to the facts of the present case.

"[A] claim for loss of consortium is independent of the damage claim of the injured spouse." Feltch v. General Rental Co., 383 Mass. 603, 607 (1981). The Legislature's intent to confine the applicability of Section 2 to the individual claim of a negligence victim leaves a spouse (or child) free to assert his or her loss of consortium cause of action even if the injured employee has already asserted a claim for damages.

In sum, we hold that the 1985 amendment to G. L. c. 152 does not abrogate the common law rights of the spouses and children of police officers and fire fighters who receive benefits pursuant to G. L. c. 41. We also hold that the exclusivity provision of G. L. c. 258, Section 2, does not bar the assertion of a

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loss of consortium claim by the spouse or the child of such an injured employee.

Judgment affirmed.