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16-P-2                                                  Appeals Court

         RICHARD DUDLEY, JR.    vs.   MASSACHUSETTS STATE POLICE.


                                No. 16-P-2.

            Bristol.       December 1, 2016. - June 1, 2017.

              Present:    Cypher, Maldonado, & Blake, JJ. 1


Massachusetts Tort Claims Act. Governmental
     Immunity. Dog. Police, Negligence. Negligence,
     Governmental immunity, Police. Practice, Civil, Summary
     judgment.



     Civil action commenced in the Superior Court Department on
February 1, 2013.

     The case was heard by William F. Sullivan, J., on a motion
for summary judgment.


     Jason R. Markle for the plaintiff.
     Andrew W. Koster, Assistant Attorney General, for the
defendant.


     MALDONADO, J.       The plaintiff, Richard Dudley, Jr.,

commenced this negligence action, pursuant to the Massachusetts

     1
       Justice Cypher participated in the deliberation of this
case while an Associate Justice of this court, prior to her
appointment as an Associate Justice of the Supreme Judicial
Court.
                                                                    2


Tort Claims Act (Act), G. L. c. 258, seeking damages from the

defendant, Massachusetts State Police (State police), for

injuries he suffered as a result of being attacked, in a public

parking lot, by a trained police dog.   Moments before the attack

occurred, State Trooper Edward T. Blackwell, an experienced

police canine handler, had been in pursuit of a criminal suspect

who fled, on foot, taking a circuitous route through that

parking lot.

     Dudley sued the State police, a public employer and agent

of the Commonwealth, 2 alleging that Trooper Blackwell's conduct,

in releasing the police dog to apprehend a suspect in a public

space, where the presence of others would be expected, created a

foreseeable and substantial risk of harm to an innocent

bystander.

     The State police answered the complaint, engaged in

discovery, and then filed a motion for summary judgment, based

on the ground of sovereign immunity under G. L. c. 258.

Following a hearing, a judge of the Superior Court allowed the

State police's motion, ruling that Dudley's negligence claim was

barred by the immunity provisions of the Act, §§ 10(b) and (j).

Dudley appeals from the separate and final judgment.   See

Mass.R.Civ.P.54(b), 365 Mass. 820 (1974).   We reverse.

     2
       His claims against the criminal suspect (William P.
Monopoli) and an automobile insurer are not at issue in this
appeal.
                                                                      3


     1.    Background.   The chase.   In the early afternoon of May

6, 2011, William P. Monopoli led several State police troopers

on a high-speed motor vehicle chase, which began in Boston and

ended in West Bridgewater.

     While speeding down the highway, Monopoli abruptly pulled

his truck off the road onto an exit ramp.     At the top of the

ramp, Monopoli lost control of his truck, crossed the roadway's

double yellow lines, and crashed into a guardrail or curb.       He

then exited his truck and quickly fled on foot, jumping over a

fence into a park and ride commuter lot.     Trooper Blackwell, who

was following the suspect in a State police cruiser, pulled

behind Monopoli's truck.

     The bite.    Trooper Blackwell stepped outside of the

cruiser, with his trained patrol dog, Jager, 3 on a leash.

Trooper Blackwell yelled to Monopoli and ordered him to give

himself up, adding that, if he did not do so, the dog would be

sent after him.    Monopoli did not stop.   He scaled over the

fence into the commuter parking lot, out of the Trooper's

immediate vision.    Trooper Blackwell, knowing the lot was more

than half full, commanded Jager to apprehend and he let go of

the dog's leash, releasing him toward the parking lot.     Jager

hopped the fence, but in the midst of the parked cars, he, as

did Blackwell, lost sight of Monopoli.

     3
         A German shepherd weighing about eighty-two pounds.
                                                                      4


     Meanwhile, Dudley, while on his way home from work, was

dropping his coworker, Shiller, off at the commuter parking lot,

heard the crash of a car.     The two men exited Dudley's truck.

Dudley observed Monopoli as he zig-zagged through the parking

lot toward a structure situated outside the lot.     At about this

same time, Trooper Blackwell came onto the scene.     Pointing

towards where Monopoli had fled, the two men yelled, "He went

that way."   Jager's attention focused on Dudley and Schiller.

Trooper Blackwell, who had also lost sight of Jager, had now

regained sight of him.     Jager was about fifteen feet from Dudley

when he jumped up and bit Dudley in the stomach.     Meanwhile,

Trooper Blackwell yelled for Dudley to get inside the truck and

lock the doors.     Dudley tried to dive in the interior

compartment of his truck headfirst.     He made it halfway in but

Jager clenched onto Dudley's leg and dragged him out of the

vehicle.   Trooper Blackwell commanded Jager to "release," and

Jager complied. 4   Trooper Blackwell then took hold of Jager's

leash and continued his pursuit of Monopoli.     Other officers had

arrived by then, and within a short time, they apprehended

Monopoli outside the periphery of the parking lot.     Trooper

Blackwell returned to Dudley, who was taken to a local hospital


     4
       The use of force by the State police is governed by
written policies and procedures. A trooper and his State police
dog operate as a team and, when given the order to apprehend a
suspect, the dog will "bite and hold" the suspect.
                                                                      5


by ambulance, where he was treated for his wounds.    Dudley was

discharged the same day.

     2.   Discussion.    "In reviewing a grant of summary judgment,

'we assess the record de novo and take the facts, together with

all reasonable inferences to be drawn from them, in the light

most favorable to the nonmoving party.'"     Pugsley v. Police

Dept. of Boston, 472 Mass. 367, 370-371 (2015), quoting

from Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 318

(2014).   Here,   we review the judge's grant of immunity under

the Act, G. L. c. 258.

     The Act provide[s] "a comprehensive and uniform regime of

tort liability" for public employers."    Morrissey v. New England

Deaconess Assoc. -- Abundant Life Communities, Inc., 458 Mass.

580, 588 (2010).    See Greenwood v. Easton, 444 Mass. 467, 469-

471 (2005).   As is pertinent in this case, the Act exempts a

public employer from liability for "any claim based upon the

exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a public employer

or public employee, acting within the scope of his office of

employment, whether or not the discretion involved is abused."

G. L. c. 258, § 10(b).    The parties agree that the State police

is a public employer entitled to the protections of the

discretionary function exemption in § 10(b), which, if

applicable in this case, would immunize it from liability.
                                                                     6


     In deciding whether § 10(b)'s discretionary function

exemption precludes a plaintiff's tort claim, we first look to

"whether the governmental actor had any discretion . . . to do

or not to do what the plaintiff claims caused [the]

harm."   Greenwood, supra at 469, quoting from Harry Stoller &

Co. v. Lowell, 412 Mass. 139, 141 (1992).

     "[I]f the governmental actor had no discretion because a

course of action was prescribed by a statute, regulation, or

established agency practice, [§ 10(b)'s] discretionary function

exception to government liability has no role to play in . . .

the case."   Ibid.   Here, Dudley cannot reasonably contest the

State police's assertion that the use of the trained police

canine, Jager, was not prescribed by a statute, regulation, or

established agency practice.   The State police's contention, at

least with respect to the first prong of the Greenwood/Harry

Stoller test, is aided by our opinion in Audette

v. Commonwealth, 63 Mass. App. Ct. 727 (2005), which held that

State police canine handlers did have "discretion" as to the

course of conduct to follow in the police canine's training and

use in police operational activities.    Id. at 731.   As was true

with a similar State police general order in Audette, the State

police's general order for canine units (effective November 5,

2008) gives discretion to its canine handlers for determining

"whether a situation justifies canine use and the appropriate
                                                                    7


tactical measures that should be taken."    We turn, then, to the

second (and final) step in deciding whether § 10(b)'s

discretionary function exemption applies.   In this step we must

determine "whether the discretion that the [governmental] actor

had is that kind of discretion for which § 10(b) provides

immunity from liability."   Greenwood, supra at 470, quoting

from Harry Stoller, supra at 141.   The essential measure, under

governing case precedent, is whether the governmental actor's

conduct, i.e., Trooper Blackwell's act of releasing Jager to

apprehend the suspect in a moderate to heavily occupied commuter

parking lot, involved discretionary activity of the "planning or

policy-making type" that is immunized under § 10(b), as opposed

to particular conduct that involves the "implementation" of

government policy, for which there is no immunity.    Ibid.

     In our view, particularly at the summary judgment stage, we

cannot say Trooper Blackwell's injury producing conduct of

commanding and releasing Jager to apprehend a criminal suspect

involved the use of planning or policy making discretion.

Rather, it was conduct that carried out or implemented the State

police's general policy for police canine use in the field.

Where, as here, the allegedly tortious conduct of the

governmental actor concerns the "carrying out of previously

established policies or plans, such acts should be governed by

the established standards of tort liability applicable to
                                                                       8


private individuals or entities."    Greenwood, supra at 471,

quoting from Whitney v. Worcester, 373 Mass. 208, 218-219

(1977).

       We reject the State police's contention that Audette

controls the result in this case.    In Audette, unlike the

situation presented here, a trained State police canine was off

leash during a motor vehicle search for contraband when he

attacked the victim when the police handler neither ordered an

attack nor an apprehension.    See Audette, supra at 729.     In our

view, that is significantly different from the situation here,

where a trained, experienced police canine handler ordered a

police dog to apprehend another individual, that is to bite and

hold a person, in a moderate to heavily occupied public parking

lot.    It is immaterial that Jager had never attacked anyone

without a command from his handler because, here, Jager was

commanded to attack.    He was ordered to apprehend, and that

order contemplated Jager's hunting down, biting, and holding an

individual, which is precisely what Jager did to Dudley.

       The State police is not assisted by the governmental

immunity provision set forth in § 10(j) either, because § 10(j)

does not preclude suit where the governmental actor is an

"original cause" in creating the harmful condition that resulted

in injury to the plaintiff.    Kent v. Commonwealth, 437 Mass.

312, 318 (2002).    See Serrell vs. Franklin County, 47 Mass. App.
                                                                    9


Ct. 400, 405-406 (1999), where § 10(j) did not bar recovery for

the affirmative actions of correction officers, who, while

intervening in a fight, struck and injured the plaintiff.     The

same is true here.   Trooper Blackwell, while trying to capture a

fleeing suspect, ordered and released Jager, in a moderate to

heavily occupied parking lot, to attack a suspect and, in doing

so, the Trooper created the harmful condition that resulted in

Dudley's injury.   Accord Gennari v. Reading Pub. Sch., 77 Mass.

App. Ct. 762, 764 (2010) (§ 10[j] did not provide immunity where

school principal ordered recess in a concrete playground and,

therefore, created the situation in which a child would be

pushed and fall onto the concrete while playing tag).   The

judgment is vacated, and the case is remanded to the Superior

Court for trial consistent with this opinion.

                                    So ordered.
