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13-P-1998                                              Appeals Court

  JANE DOE & another 1      vs.   BOSTON MEDICAL CENTER CORPORATION.


                              No. 13-P-1998.

            Suffolk.       May 6, 2015. - September 9, 2015.

               Present:    Rubin, Brown, & Maldonado, JJ.


Practice, Civil, Summary judgment. Negligence, Hospital, Duty
     to prevent harm, Foreseeability of harm.


     Civil action commenced in the Superior Court Department on
March 2, 2011.

     The case was heard by Heidi E. Brieger, J., on a motion for
summary judgment.


     Matthew W. Perkins for the plaintiffs.
     Joseph A. King (Kevin M. Sullivan with him) for the
defendant.


     BROWN, J.       The plaintiffs, Jane and John Doe, filed an

amended complaint for negligent supervision and loss of

consortium, arising out of an assault on Jane by Boston Medical

Center Corporation (hospital) interpreter Thomas Consoli.       A



     1
         John Doe.     The plaintiffs' names are pseudonyms.
                                                                        2


Superior Court judge entered summary judgment in favor of the

hospital.   The plaintiffs appeal.    We reverse.

     1.   Background.   We summarize the relevant facts from the

record in the light most favorable to the nonmoving party.

See Foster v. Group Health Inc., 444 Mass. 668, 672 (2005).       The

facts as written are undisputed.     In 2004, after obtaining a

Criminal Offender Record Information (CORI) report from the

Criminal History Systems Board, indicating no prior criminal

convictions, the hospital hired Consoli as an interpreter.

Shortly after being hired Consoli was oriented and informed of

the hospital's policies.   One such policy was that as an

interpreter, Consoli was never to touch or be alone with any

patients.   This policy was self-regulated by Consoli, that is,

the only person to insure that Consoli was never alone with a

patient was himself.

     On March 31, 2008, Jane, a Spanish-speaking immigrant from

Guatemala who understands minimal English and has no formal

education, was admitted to the hospital in connection with the

impending labor and delivery of her first child.     She was

directed to a room and changed into a hospital gown.     At or

shortly after 3:05 P.M. Consoli entered Jane's hospital room and

translated between Jane and Jane's doctor and nurse.     After

speaking with Jane, Consoli and the medical team went out of the

room, leaving her door open.   Consoli told the nurse that he was
                                                                      3


going to another assignment in triage, but when she departed, he

remained outside Jane's room.

     Soon after, Consoli reentered Jane's room, alone, and asked

Jane where she felt pain.    He told her that he was examining her

for medical purposes, lifted her gown, and touched her abdomen

and vagina, then left the room.    The nurse returned and found

Consoli outside Jane's room.    She informed him that she would

page interpreter services when the anesthesiologist arrived.

Consoli left the area at about 3:15-3:20 P.M.

     At about 3:20 P.M. that day, the hospital's director of

patient advocacy was notified by another patient's primary care

doctor that his patient had been sexually assaulted in the

hospital that morning at around 9:15 A.M. by an interpreter in

another part of the hospital.    The hospital's department of

public safety was notified immediately and an investigation was

begun.    Later that day, it was discovered that Consoli had been

the patient's interpreter.    The hospital placed Consoli on leave

pending the outcome of the investigation and deactivated his

electronic access to the hospital.    He was subsequently

terminated. 2

     2.    Discussion.   We review the grant of summary judgment de

novo.    Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct.

     2
       Consoli was later convicted of indecent assault and
battery and assault and battery for his actions. See
Commonwealth v. Consoli, 82 Mass. App. Ct. 1109 (2012).
                                                                     4


752, 756 (2010).   The order will be affirmed if, when "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), citing

Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974).    See Mass.R.Civ.P.

56(c), as amended, 436 Mass. 1404 (2002).

     In their complaint, the plaintiffs claimed that the

hospital should be held liable for its negligent supervision of

Consoli.   Ordinarily, "summary judgment is not an appropriate

means to resolve negligence cases, because usually the question

of negligence is one of fact. . . .    However, a judge may decide

the issue as matter of law when no rational view of the evidence

permits a finding of negligence."    Roderick v. Brandy Hill Co.,

36 Mass. App. Ct. 948, 949 (1994).    This is not such a case.

     "To prevail on a claim of negligence, 'a plaintiff must

prove that the defendant owed the plaintiff a duty of reasonable

care, that the defendant breached this duty, that damage

resulted, and that there was a causal relation between the

breach of the duty and the damage.'"    Lev v. Beverly

Enterprises-Massachusetts, Inc., 457 Mass. 234, 239-240 (2010),

quoting from Jupin v. Kask, 447 Mass. 141, 146 (2006).

Hospitals are responsible for "exercising reasonable care to

ensure that their employees do not cause foreseeable harm to a
                                                                    5


foreseeable class of plaintiffs."   Roe No.1 v. Children's Hosp.

Med. Center, 469 Mass. 710, 714 (2014).   Such a duty arises when

the hospital "employment facilitates the employee's causing harm

to third parties."   Lev, 457 Mass. at 244 (citation omitted).

Employment is a special relationship giving rise to a duty of

reasonable care to third parties "when the employment

facilitates the employee's causing harm to third parties";

"[e]mployment facilitates harm to others when the employment

provides the employee access to physical locations . . . or

other means by which to cause harm that would otherwise not be

available to the employee."   Restatement (Third) of Torts:

Liability for Physical and Emotional Harm § 41 & comment e, at

67 (2012).   Consoli's employment facilitated the sexual assault

upon Jane as it gave him the means to access her room alone.

Thus, the hospital had a duty to exercise reasonable care to

protect Jane against foreseeable harm done by its employees.

     The motion judge ruled that "no rational view of the

evidence permits a conclusion that [the hospital] could have

foreseen Consoli's assault on Doe."   This was in error.   The

question should not have been whether Consoli's specific assault

was foreseeable based on his prior conduct, but rather whether

an assault on an unattended, minimally clothed patient was

foreseeable when her room door was unlocked, open, and

unmonitored, and unauthorized hospital employees had access to
                                                                  6


it.   The hospital's policy regarding interpreters being alone

with patients makes it clear that such harm was foreseeable.

Thus, the question whether the hospital met its duty of

reasonable care still remains a genuine issue of material fact

for the jury to decide.   See and compare Mullins v. Pine Manor

College, 389 Mass. 47, 56, 58 (1983).

      Accordingly, we reverse the order allowing the motion for

summary judgment and remand for further proceedings.

                                    Judgment reversed.
