Alyssa Zereski v. Town of Uxbridge. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-496
ALYSSA ZERESKI 1
vs.
TOWN OF UXBRIDGE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff brought this action after her daughter was
injured at an elementary school owned and operated by the
defendant town. During recess on the playground, the daughter
received permission from one or more supervising schoolteachers
(supervisors) to use the restroom inside the school building.
Afterward, the daughter returned to the playground, where she
was knocked to the ground by an older male student who was
running backwards and/or practicing football. The mother filed
a complaint, asserting that the daughter's injuries were caused
by the defendant's negligent failure to supervise the children,
including the daughter, during recess. On the defendant's
motion for summary judgment, a Superior Court judge ruled that
1 As mother and next friend of Veronica Zereski.
the town was immune from liability under the Massachusetts Tort
Claims Act, G. L. c. 258, § 10 (j). A judgment entered, and
this appeal followed.
Discussion. "The standard of review of a grant of summary
judgment is whether, viewing the evidence in the light most
favorable to the nonmoving party, all material facts have been
established and the moving party is entitled to a judgment as a
matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.
117, 120 (1991).
With certain exceptions not relevant here, G. L. c. 258,
§ 10 (j) immunizes the town, as a public employer, from:
"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."
G. L. c. 258, § 10 (j).
The Supreme Judicial Court has "construed the 'original
cause' language to mean an affirmative act (not a failure to
act) by a public employer that creates the 'condition or
situation' that results in harm inflicted by a third party."
Kent v. Commonwealth, 437 Mass. 312, 318 (2002), quoting Brum v.
Dartmouth, 428 Mass. 684, 695 (1999). "[F]or the 'original
cause' language under § 10 (j) to apply, 'the act must have
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materially contributed to creating the specific "condition or
situation" that resulted in the harm.'" Cormier v. Lynn, 479
Mass. 35, 40 (2018), quoting Kent, supra, at 319. See Brum
supra, at 693 ("[w]hat is needed is an example of a condition
[or situation] leading to a harmful consequence, where that
condition was originally caused by the public employer but not
brought about by the public employer's failure to prevent it").
As Brum makes clear, the negligent failure to prevent harm is
not an affirmative act under the statute. See id. at 695-696.
See also Bonnie W. v. Commonwealth, 419 Mass. 122, 125-127
(1994) (§ 10 [j] barred claim based on parole officer's
"negligent failure" to supervise parolee but permitted claim
that parole officer "negligently recommend[ed]" parolee's
employment).
Here, the plaintiff's complaint fails to allege that an
affirmative act by the supervisors was an original cause of the
daughter's injuries. Viewing the complaint in the light most
favorable to the plaintiff, it alleges that the daughter's
injuries resulted from the supervisors' failure to supervise (1)
the children on the playground, and (2) the daughter upon her
return from the bathroom. What the plaintiff claims was a
"neglect of duty" -- the purported failure to adequately
supervise -- was "a failure to act to prevent or diminish" harm
to the daughter upon her return to the playground. See Brum,
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428 Mass. at 693; Stahr v. Lincoln Sudbury Regional High Sch.
Dist., 93 Mass. App. Ct. 243, 246, 247 (2018) ("amended
complaint makes clear that [the plaintiffs'] claim is . . . that
the coaches' lack of supervision and inadequate instruction
. . . both omissions . . . caused [the plaintiff's] injuries").
Compare Gennari v. Reading Pub. Sch., 77 Mass. App. Ct. 762(2010). In Gennari, the principal's affirmative decision to
hold recess in a concrete courtyard "materially contributed to
creating the specific 'condition or situation' that resulted in
the harm," id. at 765, citing Kent, 437 Mass. at 319, and could
properly be considered an original cause of injury within the
meaning of § 10 (j). Were we to accept that the supervisors'
neglect of a duty or a failure to act "materially contributed"
to the daughter's injuries, "then the opening words of § 10 (j),
immunizing 'act[s] or failure[s] to act to prevent,' . . . would
be virtually read out of the provision." Brum, 428 Mass. at
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692-693. See Cormier, 479 Mass. at 41-42; Stahr 93 Mass. App.
Ct. at 247.
Judgment affirmed.
By the Court (Blake, Walsh, &
Hershfang, JJ. 2),
Clerk
Entered: August 9, 2023.
2 The panelists are listed in order of seniority.
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