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SJC-11533

  ROBERT ROE No. 1 & others1 vs. CHILDREN'S HOSPITAL MEDICAL
                        CENTER & others.2



            Suffolk.     April 8, 2014. - October 1, 2014.

  Present:     Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.


Child Abuse. Negligence, Hospital, Employer, Duty to prevent
     harm. Practice, Civil, Complaint, Amendment of complaint,
     Dismissal.



     Civil action commenced in the Superior Court Department on
March 28, 2011.

    A motion to dismiss was heard by Merita A. Hopkins, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Mark F. Itzkowitz (Carmen L. Durso with him) for the
plaintiffs.
     Gail M. Ryan (John P. Ryan with her) for Children's
Hospital Medical Center.
     The following submitted briefs for amici curiae:
     John J. Barter for Professional Liability Foundation, Ltd.


    1
        Robert Roe Nos. 2-11.
    2
        Michael Moe Nos. 1-10.
                                                                     2


     Darrell L. Heckman, of Ohio, & Ninamary Buba Maginnis, of
Kentucky, for National Center for Victims of Crime.
     J. Michael Conley, Jeffrey S. Beeler, Thomas R. Murphy, &
Kimberly A. Alley for Massachusetts Academy of Trial Attorneys.


    CORDY, J.   This case requires us to decide whether a

Massachusetts hospital employer owes a legally cognizable duty

of care to future patients of a doctor who has left the

hospital's employ and resumed practicing medicine in the employ

of a different hospital in another State.    We conclude that such

a duty is not cognizable in the circumstances presented here,

where the hospital does not have the type of special

relationship either with its former employee, or with any of his

prospective patients, that would create such a duty.

Consequently, we affirm the judgment entered in the Superior

Court dismissing the complaint for failing to state a claim on

which relief may be granted.

    1.    Background.   We recite the relevant facts as drawn from

the plaintiffs' complaint, which we assume to be true for the

purposes of our review.    Nader v. Citron, 372 Mass. 96, 98

(1977).

    The defendant, Children's Hospital Medical Center

(Children's Hospital), is a fully licensed hospital located in

Boston.   In 1966 it hired Melvin Levine as a pediatric

physician.   Levine held that position until leaving Children's
                                                                   3


Hospital's employ in 1985.3   On leaving Children's Hospital,

Levine relocated to North Carolina, where he obtained a license

to practice medicine and became employed as a pediatrician at

the University of North Carolina School of Medicine (UNC).

Twenty-four years later, in 2009, amid allegations that he had

performed medically unnecessary genital examinations on a number

of his patients at UNC, Levine signed a consent order

surrendering his license to practice medicine in North Carolina

and agreeing not to practice medicine in any other jurisdiction.

     In 2011, the plaintiffs, eleven former patients of Levine

at UNC, brought this suit against Children's Hospital in the

Superior Court.   Essentially, they allege that Children's

Hospital failed to properly train, supervise, or discipline

Levine during his employment at Children's Hospital; knew or

should have known that Levine was conducting inappropriate

genital examinations of minors during that employment; and

failed to report Levine's conduct to various licensing

authorities and UNC.   Further, they allege that, as a

consequence of this negligence on the part of Children's




     3
       The reasons for the departure of Melvin Levine from
Children's Hospital and Medical Center (Children's Hospital) are
not in the record, and the plaintiffs have not alleged that
Levine's departure was the product of complaints against him or
that it was anything other than voluntary.
                                                                   4


Hospital, Levine was able to continue his abuse of patients,

including the plaintiffs, during his employment at UNC.4

     More specifically, the plaintiffs allege that, in 1967, the

mother of a minor male patient informed Children's Hospital that

Levine had sexually abused her son during an examination,5 and

that the plaintiffs are "informed and believe" that other

patients may have made similar complaints to Children's Hospital

during the term of Levine's employment.   Further to this

allegation, the complaint identifies litigation initiated in

Massachusetts by former patients treated by Levine when he

worked at Children's Hospital -- litigation brought after Levine

left Children's Hospital's employ.   For example, in 1988, a

patient identified as John Doe No. 6 filed suit against Levine

in the United States District Court for the District of

Massachusetts, alleging that Levine repeatedly performed

medically unnecessary examinations of his genitals between 1978

and 1984; and, in 1993, a former patient identified as John Doe

     4
       The plaintiffs' complaint alleges the following legal
theories: count I alleges that Children's Hospital was
negligent in failing to take any action to prevent Levine from
abusing them; count II alleges a conspiracy between Children's
Hospital and unknown individuals to conceal and prevent the
disclosure of Levine's sexual abuse of his patients; and count
III alleges that Children's Hospital intentionally and
fraudulently concealed and prevented the disclosure of Levine's
sexual abuse of his pediatric patients.
     5
       Children's Hospital denies that any such report was filed,
but for the purposes of our review we take the factual
allegations set forth in the complaint as true.
                                                                   5


No. 7 complained of similar abuse to the Board of Registration

in Medicine (board).6   The complaint also references four

additional suits that were filed in the Superior Court in 2005,

2006, 2008, and 2011, alleging substantially the same type of

conduct by Levine during his employment at Children's Hospital.

     In July, 2011, Children's Hospital moved to dismiss the

plaintiffs' complaint pursuant to Mass. R. Civ. P. 12 (b) (6),

365 Mass. 754 (1974), for failure to state a claim.   Children's

Hospital argued, among other things, that it did not owe any

cognizable duty of care to the plaintiffs, as the alleged abuse

happened after Levine left its employ and during his work for an

unrelated hospital in another State.   In response, the

plaintiffs moved to amend their complaint in August, 2011, to

add a paragraph alleging that Children's Hospital owed them a

duty of care because it had a "special relationship" with

Levine, and it knew or should have known that he posed a

foreseeable risk of harm to future patients.   Children's

Hospital opposed the motion, arguing that the proposed amended

complaint would still not state a claim on which relief could be

granted.

     6
       Children's Hospital was not a party to the Federal lawsuit
brought by John Doe No. 6, and after a jury trial, a directed
verdict was entered in favor of Levine, resulting in the suit's
dismissal. According to Children's Hospital, the complaint
filed by John Doe No. 7 with the Board of Registration in
Medicine (board) was dismissed after an investigation had been
completed by board investigators.
                                                                     6


    In July, 2012, a Superior Court judge, in a detailed

memorandum of decision and order, allowed Children's Hospital's

motion to dismiss and denied the plaintiffs' motion to amend.

She concluded that Children's Hospital did not owe a recognized

duty of care to the plaintiffs -- victims of abuse at a hospital

in North Carolina -- given that the alleged abuse occurred after

Levine left Children's Hospital's employ.    The judge added that

public policy did not dictate the creation of a duty to the

plaintiffs that would expose an employer to liability for future

potential abuse on unknown persons by a former employee anywhere

in the country.   As a result, she denied the motion for leave to

amend, as the proposed amendment would not "cure the defect in

the original complaint:    the lack of a cognizable legal duty to

these particular plaintiffs."    The plaintiffs timely appealed

the judge's decision, and we granted their application for

direct appellate review.

    2.   Discussion.   The only issue on appeal is whether

Children's Hospital owed a duty of reasonable care to the

plaintiffs requiring it to take affirmative action to protect

them from Levine, including informing UNC or other appropriate

authorities of allegations of sexual abuse made against him.

Our review of the judge's decision to dismiss the claim pursuant

to Mass. R. Civ. P. 12 (b) (6) is de novo.    Dartmouth v. Greater

New Bedford Regional Vocational Tech. High Sch. Dist., 461 Mass.
                                                                     7


366, 373 (2012).   On review, "a plaintiff's obligation to

provide the 'grounds' of his 'entitle[ment] to relief' requires

more than labels and conclusions . . . .   Factual allegations

must be enough to raise a right to relief above the speculative

level . . . [based] on the assumption that all the allegations

in the complaint are true (even if doubtful in fact) . . . ."

Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008),

quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-555

(2007).

    "To recover for negligence, a plaintiff must show 'the

existence of an act or omission in violation of a . . . duty

owed to the plaintiff[s] by the defendant."   Cottam v. CVS

Pharmacy, 436 Mass. 316, 320 (2002), quoting Dinsky v.

Framingham, 386 Mass. 801, 804 (1982).   "Whether a defendant

owes a plaintiff a duty of reasonable care is a question of law

that is decided 'by reference to existing social values and

customs and appropriate social policy.'"   Coombes v. Florio, 450

Mass. 182, 187 (2007), quoting Cremins v. Clancy, 415 Mass. 289,

292 (1993).   "If no such duty exists, a claim of negligence

cannot be brought."   Remy v. MacDonald, 440 Mass. 675, 677

(2004).

    As a general rule, all persons have a duty to exercise

reasonable care in their own conduct to avoid harming others

where the risk of harm is foreseeable to the actor.   Id.     That
                                                                     8


duty does not typically extend to controlling the conduct of a

third party -- here, Levine -- unless a "special relationship"

exists between the party posing a risk to others and the party

who can prevent that harm from occurring by taking action.     Lev

v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 242 (2010).

     We have recognized the relationship between an employer and

employee as a type of special relationship "that potentially

would give rise to a duty of care [to third parties] . . . when

'the employment facilitates the employee's causing harm'" to

them (citation omitted).   Lev, 457 Mass. at 243-244.   See

Restatement (Third) of Torts:   Liability for Physical and

Emotional Harm § 41 (2012) ("Duty to Third Parties Based on

Special Relationship with Person Posing Risks").7   In such

circumstances, employers are responsible for exercising

reasonable care to ensure that their employees do not cause

     7
       The Restatement identifies four types of special
relationships giving rise to a duty of reasonable care with
regard to risks posed by a third party that arise within the
scope of the relationship: "(1) a parent with dependent
children; (2) a custodian with those in custody; (3) an employer
with employees when the employment facilitates the employee's
causing harm to third parties; and (4) a mental-health
professional with patients." Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 41(a) (2012).

     "Employment facilitates harm to others when the employment
provides the employee access to physical locations, such as the
place of employment, or to instrumentalities, such as a
concealed weapon that a police officer is required to carry
while off duty, or other means by which to cause harm that would
otherwise not be available to the employee." Id. at § 41
comment e.
                                                                     9


foreseeable harm to a foreseeable class of plaintiffs.       For

example, an employer whose employees have contact with members

of the public in the course of conducting the employer's

business has a duty to exercise reasonable care in selecting and

supervising its employees.    See Coughlin v. Titus & Bean

Graphics, Inc., 54 Mass. App. Ct. 633, 639 (2002).

    While there is little doubt that Children's Hospital had a

duty to supervise and monitor Levine's conduct while he was

employed as a physician there, and owed a duty of reasonable

care to his minor patients to prevent foreseeable harm to them,

that is not this case.   We have never recognized or imposed a

duty on an employer to prevent the future behavior of a former

employee, with respect to unknown customers and clients of

unknown future employers.    While the responsibilities of medical

providers to vulnerable patients might extend beyond those of

other service-providing employers, the geographic and temporal

breadth of the duty the plaintiffs seek to impose reaches too

far, and would potentially expose the employer to liability to

an essentially limitless class of unknown parties for acts

committed long after the employer had any ability to supervise,

monitor, or discipline the former employee's conduct.    We

decline to create such uncertainties for medical providers in
                                                                   10


the Commonwealth by creating such a duty, and are not aware of

any other jurisdiction that has done so.8

     In similar circumstances, the Supreme Court of Wisconsin

declined to find a special relationship giving rise to a duty of

care in Hornback v. Archdiocese of Milwaukee, 313 Wis. 2d 294

(2008).   In that case, the plaintiffs, who grew up in Kentucky,

alleged that their former teacher sexually abused children

between 1964 and 1966 while employed by various schools in

Wisconsin that were operated by the Diocese of Madison

(diocese).    Id. at 302.   The teacher then accepted a position in

another State, Kentucky, where he allegedly abused the plaintiff

students.    Id.   The plaintiffs brought suit against the diocese,

claiming that it knew or should have known of the teacher's

conduct and was negligent in failing to affirmatively warn other

schools or authorities of the teacher's history of sexual abuse.

Id. at 302-303.    The court affirmed the dismissal of the




     8
       Even when we impose new duties based on relationships, we
are careful not to recognize duties that would expose the person
having the relationship to endless liability and litigation from
innumerable people for failing to act in ways that arguably
might have prevented some future harm. Compare Jupin v. Kask,
447 Mass. 141, 152 (2006) (recognition of duty of property owner
to secure gun from person known to have history of violence and
mental instability would not expose property owners to endless
litigation and liability), with Remy v. MacDonald, 440 Mass.
675, 677-678 (2004) (imposing liability on pregnant woman not to
harm fetus negligently would present unlimited number of
circumstances where liability could attach).
                                                                     11


complaint,9 id. at 328, concluding that the diocese did not owe

the plaintiffs a duty of care, reasoning that "[t]here is no

state in which employers are recognized as being negligent for

failing to seek out, find, and warn future employers of sexually

dangerous former employees."    Id. at 319.   The court went on to

state that the "plaintiffs appear to interpret Wisconsin's duty

of ordinary care as creating automatic negligence and liability

for any person even tangentially connected in a causal chain of

injury, with little concern about the relationship among those

sued, or how many years have passed between causal events. . . .

There must be limits.   We draw one here."    Id. at 327-328.

     The plaintiffs here have not alleged that Children's

Hospital affirmatively misrepresented Levine's employment

history in response to reference or professional qualification

inquiries from UNC or any other authority, or that any such

inquiries were even made.10    Rather, the duty the plaintiffs seek



     9
       There were two defendants in the case, the Archdiocese of
Milwaukee (archdiocese) and the Diocese of Madison (diocese).
The trial court dismissed the complaint against both defendants
on statute of limitations grounds, a decision that the Appeals
Court of Wisconsin affirmed. See Hornback v. Archdiocese of
Milwaukee, 313 Wis. 2d 294, 304 (2008). The Supreme Court of
Wisconsin also affirmed the dismissal against the diocese, but
on duty of care grounds. Id. at 319. An equally divided
Supreme Court affirmed the dismissal of the case against the
archdiocese on statute of limitations grounds. Id. at 328.
     10
       We leave open the question what, if any, duty Children's
Hospital might have with respect to inquiries made of it by
                                                                     12


to impose is one that would obligate Children's Hospital to seek

out Levine's future employers in order to warn them of past

allegations of abuse made against him.   It is unclear what level

of knowledge on the part of an employer would trigger such an

obligation.   For example, if Children's Hospital received a

complaint about Levine (or any other doctor), investigated that

complaint, and determined it to be unsupported, would it still

be obliged to seek out potential future employers and disclose

the complaint to them in order to avoid liability?     Such a duty

would place an onerous burden on employers, obligating them to

track former employees and warn their future employers or,

perhaps, even the customers of such future employers.     While the

protection of children from sexual abuse is of great importance,

an employer's duty to prevent such harm cannot extend to a duty

to prevent the actions of a former employee later employed by an

unrelated entity in another State in the decades following his

departure from the employer's employ.

    We have also recognized, on occasion, a "special

relationship" between a defendant and prospective plaintiffs.

See McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 162

(1986) (social host has duty to potential class of victims to

stop serving individual he reasonably should know is



prospective employers in the medical field with regard to abuse
allegations arising out of the work of former employees.
                                                                   13


intoxicated); Adamian v. Three Sons, Inc., 353 Mass. 498, 501

(1968) (tavern owner has same duty).   See also Mullins v. Pine

Manor College, 389 Mass. 47, 51 (1983) (college owed duty of

care to students who were victims of rape where community of

colleges had taken "steps to provide an adequate level of

security on . . . campus").11   We have generally recognized such

relationships only where the defendant could reasonably

anticipate that his or her failure to take prompt action in

circumstances that he or she controlled could result in harm to

a clearly defined class of plaintiffs; for example, a tavern

owner can reasonably be aware that his or her failure to stop

serving an intoxicated person can lead to a predictable injury

to other drivers on the neighboring roads.

     We decline to recognize a special relationship between

Children's Hospital and the plaintiffs.   The potential class of

plaintiffs who could claim a special relationship with

Children's Hospital includes every potential patient in any

State where Levine ever worked after he left its employ --


     11
       As Children's Hospital points out, in Coombes v. Florio,
450 Mass. 182, 190 (2007), we recognized a special relationship
between doctor and patient giving rise to liability. In that
case, the patient injured the plaintiffs after his doctor
neglected to exercise a duty to inform the patient about the
side effects of prescribed medication. Id. at 184-185, 190.
While both Coombes and this case involve medical personnel,
Coombes is inapposite given that the proposed relationship here
arose from conduct occurring between an employer and its
employee, not a doctor and his or her patient.
                                                                     14


essentially, an unlimited and unknowable number of people.     The

plaintiffs had virtually no relationship with or connection to

Children's Hospital.   There are significant gaps both temporally

and geographically between Levine's employment at Children's

Hospital and the alleged abuse at UNC.    See Hornback, 313 Wis.

2d at 318-319.   Indeed, the only connection between the

plaintiffs and Children's Hospital is that their alleged abuser

worked for Children's Hospital twenty-four years before their

abuse was reported.    This is simply insufficient to support the

existence of a special relationship between the parties giving

rise to a duty of care.

    In support of their argument that Children's Hospital owed

them a duty of care, the plaintiffs also argue that (1) the

medical community has imposed a duty on itself to report alleged

abuse in order to protect future patients from predatory

physicians; (2) the general public has demonstrated, through the

enactment of statutes and regulations, that such a duty exists,

establishing a "community consensus"; and (3) public policy is

served by the recognition of such a duty.   While we agree that

there is a well-established community consensus in favor of

protecting children from abuse, we disagree that such concerns

create a duty under the circumstances presented in this case,

but address the plaintiffs' points in turn.
                                                                    15


     First, a community may impose a duty of care on itself.

See Mullins, 389 Mass. at 51.     The plaintiffs contend that the

medical community has imposed on itself the duty to protect

children from being abused.     As evidence, they point to the

creation of the Federation of State Medical Boards (FSMB) and

the National Board of Medical Examiners (NBME),12 which are

organizations whose services are used by medical facilities to

determine the fitness of applicants for licensure.     They also

point to the 1958 version of the American Medical Association's

"Principles of Medical Ethics," which called on physicians to

"safeguard the public" against immoral physicians and "expose,

without hesitation, illegal or unethical conduct of fellow

members of the profession."     Finally, they draw our attention to

a policy statement of the American Academy of Pediatrics (AAP),

which recommends that medical facilities search State registries

and contact former employers to determine whether an employee

has a history of child abuse.     American Academy of Pediatrics,

Policy Statement -- Protecting Children from Sexual Abuse by

Health Care Providers, 128 Pediatrics 407, 411-412 (2011).



     12
       According to the trial judge's memorandum of decision,
the Federation of State Medical Boards represents seventy
medical boards in the United States and maintains a database of
information regarding the licensing and discipline of physicians
to be used by the public. While it collects information from
its member medical boards, it is unclear whether it solicits
direct reports from medical institutions.
                                                                     16


    While we agree that the medical community has taken steps

to protect children from sexual abuse, we are not persuaded that

medical care facilities have undertaken a duty to protect

unknowable future plaintiffs from harm by former employees.      The

FSMB and NBME are licensing databases, and exist to allow

medical institutions and licensing boards to research the

histories of applicants.   Medical facilities are not required to

report alleged abuse to them, and there is no penalty for a

failure to do so.   The mere existence of the boards does not

create a duty of care on Children's Hospital's part to the

plaintiffs.

    Similarly, the AAP's statement merely encourages hospitals

to inquire whether a potential hire presents a risk of child

abuse.   It does not create a legal duty of care.    Lev, 457 Mass.

at 244-245 (employer's internal safety policy does not create

legal duty where none already existed at law).      It also is not

apparent that the statement even applies to these circumstances,

as it does not include a duty to actively report alleged abuse.

While the AAP's statement may be evidence of a consensus with

respect to proper hiring and retention practices, and could

potentially be used to prove UNC's negligence if it failed to

exercise its due diligence in investigating Levine's fitness as

a pediatrician, it does not support the plaintiffs' claim that

the medical community has imposed on itself a duty that would
                                                                  17


require Children's Hospital to report the allegations made

against Levine in the absence of an inquiry by a prospective

employer.

     The same is true of the plaintiffs' contention that the

duty of care proposed has been incorporated into Massachusetts

statutory law, evincing a consensus in the general public in

support of the duty.   The plaintiffs refer us to G. L. c. 119,

§ 51A, which requires physicians -- among other professionals --

to notify the Department of Children and Families (department)

when they have "reasonable cause to believe" that a child has

been abused;13 G. L. c. 111, § 53B, which requires hospitals to

report disciplinary action taken against registered physicians

to the board; and G. L. c. 112, § 5F, which requires health care

providers to report to the board "any person who there is

reasonable basis to believe" has engaged in the improper

practice of medicine.14


     13
       General Laws c. 119, § 51A (a), requires that "[a]
mandated reporter who, in his professional capacity, has
reasonable cause to believe that a child is suffering physical
or emotional injury resulting from: (i) abuse inflicted upon
him which causes harm or substantial risk of harm to the child's
health or welfare, including sexual abuse . . . shall
immediately communicate with the department orally and, within
48 hours, shall file a written report with the department
detailing the suspected abuse or neglect."
     14
       The plaintiffs argue not that Children's Hospital
violated these statutes, but that the statutes are indicative of
the community consensus in favor of imposing their proposed duty
of care.
                                                                   18


    As an initial matter, and as the judge correctly noted, the

mere existence of a statute or regulation does not automatically

give rise to a legal duty for the purpose of a negligence

action.    See Lev, 457 Mass. at 245.   Rather, "[i]t is only where

a duty of care exists that the violation of a statute,

ordinance, regulation, or policy is relevant because it

constitutes some evidence of a defendant's negligence."      Id.

Certainly, all of the referenced statutes are generally intended

to protect children in Massachusetts from abuse, and any

evidence that Children's Hospital violated those statutes

regarding Levine's conduct might be relevant in a tort action by

patients alleged to have been abused by Levine while in

Children's Hospital's employ.    That, however, is because

Children's Hospital already has a legally cognizable duty to

prevent harm to its own minor patients, not because the

existence of the statutes created that duty.

    In any event, the statutes referenced by the plaintiffs do

not support a conclusion that the public has come to the

consensus that Children's Hospital owes a duty of care to the

plaintiffs.    To be certain, they require that Children's

Hospital report abuse to the department and the board in order

to protect children in the care of Massachusetts hospitals and

doctors.   They do not, however, create a duty to protect

potential future plaintiffs in other States, or require
                                                                      19


Children's Hospital affirmatively to alert prospective employers

that Levine had been accused of sexual abuse.      We thus conclude

that the plaintiffs' complaint does not state a claim on which

relief may be granted.15

     3.   Conclusion.   We affirm the denial of the plaintiffs'

motion to amend the complaint and the allowance of Children's

Hospital's motion to dismiss the complaint.

                                     So ordered.




     15
       Because we conclude that the plaintiffs' complaint, even
if amended as proposed, would not state a claim on which relief
may be granted, we affirm the Superior Court's denial of the
plaintiffs' motion to amend. See Vakil v. Vakil, 450 Mass. 411,
417 (2008) (motion to amend should be granted unless there
appears to be good reason for denying motion such as futility of
proposed amendment).
