ALYSSA CORMIER & another [Note 1] vs. CITY OF LYNN & others. [Note 2]

BUDD, J. Bullying is a persistent, pernicious problem in our schools -- it can cause emotional and, at times, physical harm. In this case, Matthew Mumbauer suffered both. Matthew was a public elementary school student in Lynn when he was pushed down a stairwell at school by a classmate. Matthew's fall led to a spinal injury, resulting in permanent paralysis. He and his parents, Alyssa Cormier and James Mumbauer (collectively, plaintiffs), brought claims against a number of defendants in connection with the incident and Matthew's subsequent medical care. A Superior Court judge allowed a motion to dismiss all claims against the city of Lynn, Lynn Public Schools (school district), and their public employees (collectively, public defendants). [Note 3] The Appeals Court affirmed that decision in an unpublished memorandum and order issued pursuant to its rule 1:28. Cormier v. Lynn, 91 Mass. App. Ct. 1101 (2017).

We allowed the plaintiffs' motion for further appellate review, limited to whether the Massachusetts Tort Claims Act (act), G. L. c. 258, § 10 (j), bars the plaintiffs from bringing claims against the public defendants in relation to this incident. Thus, the issue that we must decide is not whether the school was negligent for failing to act reasonably to prevent the bullying that led to Matthew's injuries; the complaint alleges that it was, and for purposes of this appeal, we accept that allegation as true. Rather, the issue on appeal is whether, under the act, the public defendants may be held liable for that negligence. We conclude that the act protects them from liability for such negligence. [Note 4]

Background. The facts of this case, drawn from the complaint, are tragic. On March 10, 2008, then fourth grade student Matthew Mumbauer was pushed down a stairwell by a classmate while attending a public elementary school in Lynn. The incident occurred while the students were lining up at the beginning of the school day.

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By late morning and throughout the afternoon, Matthew complained to teachers and classmates of "tingling and numbness" in his extremities. His symptoms were not reported to the school nurse or any other medical professionals. By the end of the school day, Matthew reported feeling like his legs were "dead weight" and he needed assistance to walk out of the school.

In the afternoon, Matthew's parents brought him to North Shore Medical Center (NSMC), where he was diagnosed with a sprain in his right foot and given pain medication. He stayed home from school the following day. On March 12, Matthew returned to NSMC because he was unable to move his hands or legs. Matthew was then transferred to Massachusetts General Hospital in Boston, where he was diagnosed with an injury to his spinal column and spinal cord, which resulted in the onset of quadriplegia. He is permanently paralyzed and confined to a wheelchair.

The plaintiffs' complaint alleges that, prior to being pushed down the stairs in March, 2008, Matthew was subject to constant bullying at school by a small group of students, including the classmate who pushed Matthew. Matthew's mother had reported acts of harassment levied against him on multiple occasions during the 2007-2008 school year to school officials. Matthew had also complained to teachers and administrators at the school numerous times about bullying and harassment. The plaintiffs contend that the school did not enforce its own antibullying policies.

Discussion. "We review the allowance of a motion to dismiss de novo." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "For the purposes of that review, we accept as true the facts alleged in the plaintiffs' complaint[] and any exhibits attached thereto, drawing all reasonable inferences in the plaintiffs' favor." Revere v. Massachusetts Gaming Comm'n, 476 Mass. 591, 595 (2017).

1. Sovereign immunity and the act. For over a century, "the Commonwealth c[ould] not be impleaded in its own courts, except by its own consent" at common law. Troy & Greenfield R.R. v. Commonwealth, 127 Mass. 43, 46, 50 (1879). [Note 5] Municipalities

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were also largely immune from liability in tort. [Note 6] See Bolster v. Lawrence, 225 Mass. 387, 388-390 (1917) (summarizing circumstances in which municipalities were immune from liability in tort at common law); Mower v. Leicester, 9 Mass. 247, 249 (1812) (concluding that common law prohibits tort actions that are not statutorily authorized for "neglect of duties enjoined on them"). Public employees were always immune from liability for negligent omissions, or "nonfeasance." See Desmarais v. Wachusett Regional Sch. Dist., 360 Mass. 591, 593 (1971); Trum v. Paxton, 329 Mass. 434, 438 (1952).

In Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 618-619 (1973), and Whitney v. Worcester, 373 Mass. 208, 210 (1977), we determined that the underlying basis for common-law sovereign immunity for both the Commonwealth and municipalities was "logically indefensible," and stated our intention to abrogate the doctrine of municipal immunity after the conclusion of the 1978 legislative session (providing the Legislature with an opportunity to set forth sovereign immunity policy for the Commonwealth and its political subdivisions through legislation). We reasoned that the common-law rules of sovereign immunity were incompatible with the fundamental principle in tort "that if there is tortious injury there is liability." Morash & Sons, Inc., supra at 621. At the same time, we acknowledged that public policy demanded some reasonable limits to governmental liability in order for taxpayers to avoid a potentially catastrophic financial burden. See id. at 623 & n.6.

Shortly before the end of the 1978 legislative session, the Legislature passed G. L. c. 258, the act, [Note 7] which allowed for limited tort liability for the Commonwealth and its political

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subdivisions. See St. 1978, c. 512. Section 2 of the act provides that public employers are liable for negligent or wrongful acts or omissions of public employees acting within their scope of employment. See G. L. c. 258, § 2. [Note 8]

2. G. L. c. 258, § 10 (j). Although the act statutorily eliminates the immunity that governmental bodies would ordinarily enjoy under common law, it sets forth several exceptions to that general waiver of sovereign immunity. See G. L. c. 258, § 10 (a)-(j).

Section 10 (j) bars "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." [Note 9] G. L. c. 258, § 10 (j).

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In other words, [Note 10] § 10 (j), which "was intended to provide some substantial measure of immunity from tort liability" to public employers, eliminates government liability for a public employer's act or failure to act to prevent harm from the wrongful conduct of a third party unless the condition or situation was "originally caused" by the public employer. Brum v. Dartmouth, 428 Mass. 684, 692, 695 (1999).

To have "originally caused" a condition or situation for the purposes of § 10 (j), the public employer must have taken an affirmative action; a failure to act will not suffice. [Note 11] Id. at 695-696. In Brum, a public high school student was stabbed to death in a classroom during the school day by one of three armed individuals, after an earlier violent interaction involving the assailants. Id. at 686. School officials had been informed that the assailants, who had left the school grounds after the altercation, planned to return and retaliate against certain students, including the child who was ultimately killed. Id. at 686-687. The victim's mother brought suit against the municipality for its negligent failure to maintain adequate security measures at the school and failure to protect her son despite being made aware of a known threat. Id. at 687. We concluded that § 10 (j) precluded the municipality's liability for failure to prevent the killing absent an affirmative act by a public employee in the operation of its schools. Id. at 696. See Bonnie W. v. Commonwealth, 419 Mass. 122, 125-126 (1994) (concluding that § 10 [j] barred claim based on negligent failure to supervise parolee but permitted claim based on negligently recommending his employment).

Furthermore, for the "original cause" language under § 10 (j) to apply, "the act must have materially contributed to creating the specific 'condition or situation' that resulted in the harm." Kent v. Commonwealth, 437 Mass. 312, 319 (2002). In Kent, we concluded that § 10 (j) required dismissal of a claim against the parole board for its negligence in releasing a convicted murderer who, eight years later, shot a police officer. Id. at 313, 319-320. We concluded that the parole board's affirmative act did not materially contribute to the police officer's injuries. Id. at 319-

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320.

3. Application of § 10 (j) to plaintiffs' tort claims. The parties disagree as to whether the stated exception in § 10 (j) applies to the plaintiffs' claims. The defendants argue that the claims are precluded by § 10 (j) because Matthew's injuries were caused by the "violent or tortious conduct of a third person." The plaintiffs acknowledge that a third party directly harmed Matthew, but argue that the school district is not immune from liability because school employees "originally caused" the dangerous situation that resulted in Matthew's injuries. See G. L. c. 258, § 10 (j). See also Brum, 428 Mass. at 692. Thus, we must determine whether the plaintiffs allege that the school district employees took an affirmative act that materially contributed to creating a condition or situation that resulted in Matthew's injuries. See Kent, 437 Mass. at 319.

There can be little doubt that some actions by the public defendants contributed indirectly to Matthew's injuries, for example, Matthew and his tormentors were required to attend school and were placed in the same class. These actions, however, "are too remote as a matter of law to be the original cause" of Matthew's injuries under § 10 (j) and therefore cannot be said to have "materially contributed" to creating the specific condition or situation resulting in Matthew's injuries. See Kent, 437 Mass. at 319.

In their complaint, the plaintiffs make numerous allegations that the school district and its employees negligently failed to protect Matthew or negligently failed to diminish the harm caused by Matthew's injuries. [Note 12] These claims are barred by § 10 (j) because they originate from a failure to act rather than an affirmative act. See Brum, 428 Mass. at 696.

In their brief, the plaintiffs highlight that the school's staff had a policy of having students line up in a particular order outside school each morning before the start of the school day without guidance or supervision. This, they argue, was an affirmative act that resulted in Matthew and his classmate being in close proximity

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and created the situation that led to Matthew's injuries. [Note 13] Putting aside the question whether this particular fact was adequately pleaded in the plaintiffs' complaint, [Note 14] this allegation is, at bottom, another claim for negligence based on an act that fails to prevent or diminish harm by failing to keep Matthew and his bullies apart. "[C]onditions that are, in effect, failures to prevent harm, would undermine [the] principle purpose" of § 10 (j). Brum, 428 Mass. at 696. Effectively, the plaintiffs seek to hold the school liable for not acting in a manner that ensured Matthew's safety. Such a claim is precluded under the act.

Conclusion. There is no question that bullying is a serious issue. The tragedy that occurred in this case highlights the emotional pain of day-to-day harassment suffered by those who are bullied, as well as the horrific physical consequences that can result. [Note 15]

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In this case it appears, based upon the allegations of the complaint, that those working at the elementary school could have and should have done more to protect Matthew. Nevertheless, the fact remains that the Legislature has imposed restrictions on the act that exempt school districts from liability. See Whitney, 373 Mass. at 210 ("on the subject of sovereign immunity . . . barring any possible constitutional infirmities, the Legislature will have the final word").

The order of the Superior Court judge allowing the motion to dismiss is affirmed.

So ordered.