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18-P-645                                                Appeals Court

                 NIQUEL REID    vs.   CITY OF BOSTON.


                             No. 18-P-645.

           Suffolk.      January 11, 2019. - July 12, 2019.

            Present:    Massing, Desmond, & McDonough, JJ.


Massachusetts Tort Claims Act. Municipal Corporations,
     Liability for tort, Governmental immunity. Negligence,
     Police, Municipality, Proximate cause, Governmental
     immunity. Police, Negligence, Municipality's liability.
     Proximate Cause. Search and Seizure, Protective frisk.
     Practice, Civil, Directed verdict, Judgment notwithstanding
     verdict.



     Civil action commenced in the Superior Court Department on
May 31, 2013.

     The case was tried before Edward P. Leibensperger, J., and
a motion for judgment notwithstanding the verdict was considered
by him.


     Nicole M. O'Connor, Senior Assistant Corporation Counsel
(Nieve Anjomi, Assistant Corporation Counsel, also present) for
the defendant.
     Christine R. Fitzgerald for the plaintiff.


    MASSING, J.       This appeal concerns the application of the

Massachusetts Torts Claim Act (MTCA), G. L. c. 258, in the
                                                                    2


context of police activity.     The plaintiff, Niquel Reid, was

conversing calmly on the sidewalk with her sister's boyfriend,

Tyrone Cummings, when three Boston police officers, responding

to a 911 call from the plaintiff's sister, approached.    One of

the officers, without warning Cummings or his fellow officers,

grabbed Cummings from behind, intending to conduct a patfrisk.

Cummings responded by removing a firearm from his waistband and

exchanging gunfire with the officers.    In the end, the officers

fatally shot Cummings, but not before he shot the plaintiff in

the leg.   A jury awarded the plaintiff damages under the MTCA

for the officers' negligence.    The city of Boston1 argues that it

is immune from liability under the MTCA or, in the alternative,

that the officers' conduct was not the proximate cause of the

plaintiff's injuries.   We affirm.

    Background.2   On the morning of June 14, 2011, the plaintiff

received a call from her sister, who said she would be coming to

the plaintiff's nearby home after putting her daughter on a

school bus.   Minutes later, the plaintiff's sister called again.




    1  The individual officers' motion to dismiss was allowed,
and trial proceeded only on the plaintiff's claim against the
city. See G. L. c. 258, § 2 (establishing liability of public
employers, but not public employees, for injury or death caused
by employees acting within scope of their employment).

    2  We recite the facts presented to the jury in the light
most favorable to the plaintiff. See Tosti v. Ayik, 394 Mass.
482, 494 (1985).
                                                                   3


The plaintiff could hear her sister saying to someone, "Why are

you following me . . . stop following me . . . why are your

hands behind your back[?]"   The plaintiff was aware that her

sister and her sister's boyfriend, Cummings, were not getting

along.   Sensing trouble, the plaintiff told her sister that she

would pick her up.

    When the plaintiff arrived at her sister's home, Cummings

was standing in the street in front of his car.   The plaintiff

parked her car and walked over to speak with him.   Cummings

spoke in a normal tone of voice and was not belligerent.   The

plaintiff did not see any weapons on Cummings, and it did not

appear as if he had been in a fight.   While the plaintiff and

Cummings were talking, the plaintiff's sister emerged from her

house with her daughter, put her daughter in the plaintiff's

car, and then got into the car herself.   The plaintiff's sister

did not appear injured or frightened of Cummings.   At no point

during their interaction, which lasted less than five minutes,

did the plaintiff feel afraid of Cummings.

    Unbeknownst to the plaintiff, while she was talking to

Cummings, her sister had called 911.   Boston Police Officers

Shawn Marando and Charbel Kamel, riding in a cruiser driven by

Marando, were dispatched to the scene; Officer Timothy Denio,

working alone, heard the call and decided to assist.   Over the

police radio, the dispatcher described Cummings and relayed the
                                                                   4


substance of the 911 call as, "[M]an threatening to kill . . .

his girlfriend. . . .   But no known weapons, no mention of

weapons."   The dispatcher also sent supplemental text messages

to the mobile data terminals in the officers' cruisers.    These

supplemental messages included a physical description of

Cummings and informed the officers that the caller and her eight

year old daughter were in a car parked outside the residence

where the assault had occurred, that the suspect was standing

outside speaking with the caller's sister, and that there were

"no weapons."   Only Kamel, who was not driving, looked at the

supplemental texts, and he only glanced at the beginning portion

containing the suspect's description and the summary of the

incident.   He considered the status of the situation to be

"unknown weapons," because "the dispatcher does not know what's

going on the scene."

    The officers arrived to find the plaintiff and Cummings on

the sidewalk; they erroneously assumed that the plaintiff was

the 911 caller.   Marando and Kamel approached and stood beside

the plaintiff and Cummings, all within arm's length of one

other, while Denio took up a position behind his fellow

officers.   Cummings and the plaintiff were speaking calmly, and

Cummings's demeanor did not change when the officers approached.

The plaintiff did not appear to be injured.   The officers did

not see any indication of weapons.   Marando asked the plaintiff
                                                                      5


and Cummings if they had anything on them.     The plaintiff

replied, "No," as did Cummings.     Marando asked if either of them

called the police, and both responded that they had not.

Marando then said, "[Y]ou both look all right," and asked if

they were "okay."     The plaintiff said, "I'm okay," and Cummings

said, "I'm good."

       At that moment, Kamel came up behind Cummings, grabbed his

arm, and reached for his waist, intending to conduct a patfrisk.

Kamel did not tell Cummings, or the other officers, what he was

going to do.    Kamel's sudden action caught his partner Marando

by surprise because he was in the middle of "deescalating" the

situation and making sure everyone was calm.      Marando testified

that he would not have made "an aggressive move" such as

initiating a patfrisk in such circumstances.

       Cummings reacted to Kamel's sudden contact by pushing Kamel

away and drawing a firearm from his waistband.     As Cummings

backed away from the officers, he pointed the gun toward Marando

and fired.     Marando and Denio returned fire.   After Marando's

first shot struck Cummings, Cummings started to fall to the

ground, but he continued to discharge his weapon.     The plaintiff

tried to get out of the way, but her path was blocked by a fence

between the sidewalk and a house.    During the shootout, Cummings

shot the plaintiff in her left leg; Marando was also shot in the

leg.    Cummings died from multiple gunshot wounds.
                                                                         6


       The plaintiff sued the city for negligence, and the case

proceeded to trial.       At the close of the plaintiff's case, the

city moved for a directed verdict, which the judge denied.         The

city unsuccessfully renewed its motion at the close of all the

evidence.    By special verdict, the jury concluded that "one or

more police officers [were] negligent with respect to their

actions at the scene . . . prior to shots being fired" and that

"the negligence of the police officer(s) prior to shots being

fired [was] a substantial contributing factor in causing

injuries to [the] plaintiff."      The jury awarded her $253,391.73,

which was reduced by statute to $100,000.       See G. L. c. 258,

§ 2.    After entry of the amended judgment, the city filed a

motion for judgment notwithstanding the verdict (judgment

n.o.v.) or for a new trial, which the judge denied.       The city

appeals from the amended judgment and from the order denying its

motion for judgment n.o.v.

       Discussion.   1.   Standard of review.   When reviewing the

denial of a motion for directed verdict or judgment n.o.v., we

apply the same standard as the trial judge.       See O'Brien v.

Pearson, 449 Mass. 377, 383 (2007).       Our task, "taking into

account all the evidence in its aspect most favorable to the

plaintiff, [is] to determine whether, without weighing the

credibility of the witnesses or otherwise considering the weight

of the evidence, the jury reasonably could return a verdict for
                                                                  7


the plaintiff."   Tosti v. Ayik, 394 Mass. 482, 494 (1985),

quoting Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass. App.

Ct. 252, 254 (1983).   "The court will consider whether 'anywhere

in the evidence, from whatever source derived, any combination

of circumstances could be found from which a reasonable

inference could be drawn' in favor of the non-moving party."

McNamara v. Honeyman, 406 Mass. 43, 46 (1989), quoting Poirier

v. Plymouth, 374 Mass. 206, 212 (1978).

     2.   MTCA immunity.    The city contends that it is immune

from suit under the MTCA's "statutory public duty rule."

Carleton v. Framingham, 418 Mass. 623, 627 (1994).

Specifically, the city relies on G. L. c. 258, § 10 (h), which

bars claims based on the failure to provide police protection,

and G. L. c. 258, § 10 (j), which bars claims based on the

tortious conduct of third parties "not originally caused by the

public employer."   We agree with the trial judge that these

exclusions do not apply.

     a.   Section 10 (h).   The city asserts that because the

plaintiff's theory of liability is based on failure to provide

police protection -- that is, the officers' failure to prevent

Cummings from shooting her -- it is immune under § 10 (h).3


     3 Under G. L. c. 258, § 10 (h), the MTCA does not apply to
"any claim based upon the failure to establish a police
department or a particular police protection service, or if
police protection is provided, for failure to provide adequate
                                                                    8


Specifically, the city invokes the clause of G. L. c. 258,

§ 10 (h), providing immunity from claims based on "failure to

provide adequate police protection."

       Section 10 (h) "immunize[s] a municipality when the

criminal acts of a third person are a cause of the plaintiff's

harm, and the police were negligent in not preventing that

criminal conduct."    Carleton, 418 Mass. at 629.   Thus, a town

could not be held liable for a fatal automobile accident that

occurred after a police officer first failed to prevent a person

the officer knew to be drunk from getting into a car and driving

away, and then abandoned pursuit when the driver did not stop

for the officer's flashing lights.     See id. at 624, 627 n.4,

629.   See also Makynen v. Mustakangas, 39 Mass. App. Ct. 309,

310, 314 (1995) (§ 10 [h] provided immunity where, one-half hour

before intoxicated driver caused head-on collision, police

officer stopped driver, issued warning for speeding, and allowed

driver to drive away).    Nor could a town be held liable for the

shooting of a domestic violence victim based on its police

officers' repeated refusals to arrest the victim's estranged




police protection, prevent the commission of crimes,
investigate, detect or solve crimes, identify or apprehend
criminals or suspects, arrest or detain suspects, or enforce any
law, but not including claims based upon the negligent operation
of motor vehicles, negligent protection, supervision or care of
persons in custody, or as otherwise provided in clause (1) of
subparagraph (j)."
                                                                    9


husband for violating a G. L. c. 209A protective order.     See

Ford v. Grafton, 44 Mass. App. Ct. 715, 716-720, 724 (1998).

    As these cases illustrate, § 10 (h) shields municipalities

from claims where police officers negligently failed to prevent

harm posed by third parties.   Here, the plaintiff's successful

theory of liability was not that the police officers failed to

protect her from a threat, but rather that the officers'

affirmative conduct created a danger that did not previously

exist.   The city contends, however, that because the officers

were responding to a 911 call, they were engaged in providing

police protection, and any claim based on acts the officers

performed negligently in the course of their emergency response

amounts to failure to provide adequate police protection.     See

Anderson v. Gloucester, 75 Mass. App. Ct. 429, 433-434 (2009)

("§ 10 [h] and [j] are based on a legislative recognition that

public employees who respond to emergencies are called upon to

act swiftly, often without the time for investigation and

deliberate reflection available in other circumstances").    The

exclusion applies, so the city argues, even if the officers'

affirmative acts were negligent and contributed to the

plaintiff's injury.

    The exclusion in § 10 (h) for failure to provide adequate

police protection is intended to exclude claims based on the

"failure to investigate, detect crime, apprehend, arrest, and
                                                                    10


enforce the law."   Ford, 44 Mass. App. Ct. at 725.   The

exclusion does not extend to every negligent act that a police

officer commits in the course of providing police protection.

See id., citing Glannon, Liability for "Public Duties" Under the

Tort Claims Act:    The Legislature Reconsiders the Public Duty

Rule, 79 Mass. L. Rev. 17, 19, 24 (1994) (Glannon) (§ 10 [h]

does not exclude claims "based on collateral negligence in the

course of any one of these police functions").

    The language of the MTCA exclusion for failure to provide

fire protection services, codified in neighboring § 10 (g) of

c. 258, bolsters this interpretation of § 10 (h).

Section 10 (g) incorporates language similar to that of

§ 10 (h), but in addition includes express immunity for

negligence in the course of fighting a fire:     it excludes "any

claim based upon the failure to establish a fire department or a

particular fire protection service, or if fire protection

service is provided, for failure to prevent, suppress or contain

a fire, or for any acts or omissions in the suppression or

containment of a fire" (emphasis added).    G. L. c. 258, §

10 (g).   Thus, § 10 (g) applies even if a firefighter's actions

in the course of providing fire protection services add fuel to

the fire, so to speak.   Section 10 (h), by contrast, does not

exclude acts or omissions in the provision of police protection.

Had the Legislature intended to immunize all negligent acts of
                                                                    11


police officers providing police protection, it would have

specifically done so.     See Phillips v. Equity Residential Mgt.,

L.L.C., 478 Mass. 251, 259 (2017), quoting Brady v. Brady, 380

Mass. 480, 484 (1980) ("a statutory expression of one thing is

an implied exclusion of other things omitted from the statute").

We will not read into § 10 (h) words the Legislature used only

in § 10 (g).   See Commonwealth v. Galvin, 388 Mass. 326, 330

(1983).4

     Ariel v. Kingston, 69 Mass. App. Ct. 290 (2007), on which

the city primarily relies, does not govern the present case.

The plaintiff in Ariel was the passenger in a motor vehicle

driven by her daughter.     Id. at 291.    The daughter approached an

intersection where an accident had occurred and two police

officers were directing traffic.     Id.   She had a green light, so

she proceeded through the intersection.      Id. at 291-292.

Simultaneously, another car, which the plaintiff alleged was

waved through a red light by one of the town's officers, entered


     4 The city concedes that § 10 (h) does not immunize "every
act of a police officer in the course of his duties." Relying
on an unpublished decision of the United States District Court
for the District of Massachusetts, however, the city contends
that the only negligent police conduct for which a municipality
may be held liable is conduct that is the "direct and primary
cause" of a plaintiff's harm, not conduct that leads to injury
to a plaintiff by a third party. Nothing in the language of
§ 10 (h) or any published Massachusetts decisions construing it
supports this interpretation. Indeed, § 10 (j) primarily
governs liability under the MTCA for tortious acts of third
parties.
                                                                    12


the intersection and collided with the daughter's car.     Id. at

292.   We held that the town was immune under § 10 (h) because

"police officers' direction of traffic on a public way

constitutes a form of providing police protection to the public

for the risks involved in motor vehicle traffic."    Id. at 293.

       In Ariel, the officers were providing police assistance to

mitigate a dangerous condition.    Id.   In this case, by contrast,

the situation that the officers encountered upon their arrival

was calm, and the plaintiff did not appear to be in immediate

danger.   Cummings was not brandishing a firearm or engaging in

threatening conduct.    The dangerous situation that resulted in

the plaintiff's injury arose only after Kamel grabbed Cummings,

without communicating his plan to the other officers and without

taking steps to impede Cummings's ability to reach for a weapon.

Thus, unlike the cases where § 10 (h) applies, the plaintiff's

claim was based on the officers' affirmative actions that

created a harmful situation that did not previously exist.

       The plaintiff prevailed at trial not by showing that the

police failed to prevent Cummings from committing a crime, and

not by showing that the police failed to provide adequate

protection to the public in an emergency situation, but rather

by showing that the officers' negligent actions in performing

their duties created a harm that did not otherwise exist,

causing her injury.    Section 10 (h) does not bar such a claim.
                                                                   13


     b.   Section 10 (j).   On appeal, the city also argues that

its motions for directed verdict and for judgment n.o.v. should

have been granted because it is immune from liability under

§ 10 (j), which shields public employers from suits arising out

of the violent conduct of third parties.5

     Because the city did not assert § 10 (j) immunity in its

motions for directed verdict, the plaintiff argues in her brief

that the city has waived this defense.    Ordinarily we would

agree -- a defense not asserted in a motion for directed verdict

is waived and cannot be resurrected in a motion for judgment

n.o.v.    See Mass. R. Civ. P. 50 (a), 365 Mass. 814 (1974);

Abramian v. President & Fellows of Harvard College, 432 Mass.

107, 115 (2000); Bonofiglio v. Commercial Union Ins. Co., 411

Mass. 31, 34-35 (1991).     However, a prior decision of this court

held that because G. L. c. 258, § 10, defenses relate to subject

matter jurisdiction, the Commonwealth did not waive its immunity

under G. L. c. 258, § 10 (d), by filing an untimely motion to


     5 Under G. L. c. 258, § 10 (j), the MTCA does not apply to
"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."
Section 10 (j) goes on to enumerate three exceptions to the
exclusion it creates. Pertinent here, "This exclusion shall not
apply to: . . . (2) any claim based upon the intervention of a
public employee which causes injury to the victim or places the
victim in a worse position than he was in before the
intervention."
                                                                      14


dismiss.    See Vining v. Commonwealth, 63 Mass. App. Ct. 690, 696

(2005).    We added, in dicta, that such defenses "may be raised

for the first time on appeal or may even be raised by a court

sua sponte."     Id.   Accordingly, we address the merits.6

    The city "is immune from suit under G. L. c. 258, § 10 (j),

for all harmful consequences arising from its failure to act to

prevent the violent or tortious conduct of a third person,

unless it 'originally caused' the 'condition or situation' that

resulted in the harmful consequence."      Kent v. Commonwealth, 437

Mass. 312, 317 (2002).      "[T]he principal purpose of § 10 (j) is

to preclude liability for failures to prevent or diminish harm,

including harm brought about by the wrongful act of a third

party."    Brum v. Dartmouth, 428 Mass. 684, 696 (1999).

    Section 10 (j) provides immunity when a third party injures

the plaintiff, and the public employer's only fault was its

failure to prevent the situation or harm.      "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."      Cormier v. Lynn, 479 Mass.

35, 40 (2018).     See, e.g., Brum, 428 Mass. at 686-687, 696 (town




    6  The city did not file a reply brief or otherwise respond
to the plaintiff's waiver argument, and neither party cited
Vining, supra, let alone addressed its applicability here. In
these circumstances, we are reluctant to limit the scope of our
prior decision.
                                                                  15


not liable for stabbing of student on high school grounds based

on failure to maintain adequate security measures to protect

student from known threat); Bonnie W. v. Commonwealth, 419 Mass.

122, 126 (1994) (Commonwealth not liable for rape committed by

parolee based on parole officer's failure to supervise parolee);

Stahr v. Lincoln Sudbury Regional High Sch. Dist., 93 Mass. App.

Ct. 243, 247 (2018) (school district not liable for injury to

field hockey player struck by teammate's stick during practice

session based on coaches' lack of supervision and inadequate

instruction).

    But § 10 (j) does not provide immunity where a public

employee's affirmative act "creates the 'condition or situation'

that results in harm inflicted by a third party."   Kent, 437

Mass. at 318, quoting Brum, 428 Mass. at 695.   In other words,

§ 10 (j) does not apply in "situations in which governmental

employees set in motion a chain of events that allow[] violent

people to harm others."   Anderson, 75 Mass. App. Ct. at 436.

See, e.g., Harrison v. Mattapoisett, 78 Mass. App. Ct. 367, 371-

372 (2010) (officers' conduct in commencing high-speed chase

materially contributed to suspect's flight, resulting in

collision with plaintiff's car); Serrell v. Franklin County, 47

Mass. App. Ct. 400, 401, 405 (1999) (correction officers'

tactics in intervening to restrain inmate in visitor's room

caused iron gate to pin down and injure visitor).   See also
                                                                  16


Dudley v. Massachusetts State Police, 91 Mass. App. Ct. 616,

620-621 (2017) (officer created harmful situation when he

released trained police canine to apprehend fleeing suspect and

canine bit plaintiff).7

     We need not decide whether the officers' actions here

"originally caused" the plaintiff's injury –- the question

"described as the 'most difficult issue posed' by the amendments

to the [MTCA]," Kent, 437 Mass. at 318, quoting Glannon, 79

Mass. L. Rev. at 26 –- because the immunity provided by § 10 (j)

does not extend to claims arising from the violent conduct of

third parties that are "based upon the intervention of a public

employee which causes injury to the victim or places the victim


     7 Whether a decision, as opposed to an act, of a public
employer is the original cause depends on how close a connection
it bears to the plaintiff's injury. Compare Devlin v.
Commonwealth, 83 Mass. App. Ct. 530, 530-531, 535 (2013)
("affirmative decision to allow convicted inmates to work in an
area where civilly committed individuals were housed and
treated," materially contributed to situation in which inmate
struck and injured plaintiff); Gennari v. Reading Pub. Sch., 77
Mass. App. Ct. 762, 764-765 (2010) (elementary school
principal's decision to hold recess in concrete courtyard
materially contributed to condition resulting in first grader
being pushed by another student into sharp concrete bench); with
Cormier, 479 Mass. at 41 (requiring students to attend school
and placing them in same class "too remote as a matter of law to
be the original cause" of one student pushing another down
staircase, resulting in permanent paralysis [citation omitted]);
Kent, 437 Mass. at 319 (parole board's decision to release
inmate who shot officer eight years later "too remote" to be
original cause of shooting); Jane J. v. Commonwealth, 91 Mass.
App. Ct. 325, 330-331 (2017) (hospital's decision to allow
committed male and female patients access to shared common room
too remote to be original cause of plaintiff's rape).
                                                                  17


in a worse position than he was in before the intervention."

G. L. c. 258, § 10 (j) (2).8    Officer Kamel's intervention placed

the plaintiff in a worse position than she was in previously.

By approaching Cummings from behind and suddenly seizing him --

without informing his fellow officers, or Cummings, of his

intent -- Kamel escalated what had previously been a calm,

controlled encounter into a shootout.    See Williams v. O'Brien,

78 Mass. App. Ct. 169, 176 (2010) (public employer not immune

from claim based on correction officers' acts of calling

plaintiff "snitch" in front of other inmates and placing him in

cell with hostile inmate, resulting in plaintiff being stabbed

by cellmate; officers' intervention "place[d] the victim in a

worse position than he was in before" [citation omitted]);

Serrell, 47 Mass. App. Ct. at 405 (officers' intervention in

subduing inmate, injuring plaintiff in process, "exacerbated the

situation to her detriment").    The plaintiff's successful theory

of recovery was not that the police failed to prevent Cummings

from shooting her -- it was that Cummings never would have


     8 The Supreme Judicial Court has stated, "In order for a
public employer's affirmative act to be the 'original cause' of
a 'condition or situation' that results in harmful consequences
to another from 'the violent or tortious conduct of a third
person,' we hold that the act must have materially contributed
to creating the specific 'condition or situation' that resulted
in the harm." Kent, 437 Mass. at 319. While it is difficult to
imagine an intervention described in § 10 (j) (2) that does not
materially contribute to creating a harmful situation, we need
not wade into this interpretive quagmire.
                                                                    18


started shooting if the officers had not negligently intervened.

See Stahr, 93 Mass. App. Ct. at 249 (for § 10 [j] [2] to apply,

claim must be based on "an affirmative act on the part of the

intervener" rather than omissions).     For this reason, § 10 (j)

does not preclude liability.

    3.     Proximate cause.   Finally, the city argues that it was

entitled to a directed verdict because Cummings's criminal acts

were a superseding cause that broke the chain of proximate

causation between the officers' "preshooting" conduct and the

plaintiff's injury.

    In addition to proving that a defendant's negligence

actually caused the plaintiff's harm, "the plaintiff must show

that the negligent conduct was a proximate or legal cause of the

injury."   Kent, 437 Mass. at 320.    To establish proximate cause,

the plaintiff must prove that her injury was a reasonably

foreseeable result of the defendant's negligence.     See Jesionek

v. Massachusetts Port Auth., 376 Mass. 101, 105-106 (1978).        The

chain of proximate cause may be broken by intervening acts of a

third party.   See Wallace v. Ludwig, 292 Mass. 251, 255 (1935);

Harrison, 78 Mass. App. Ct. at 373.     However, the intervening

acts of a third party that are a reasonably foreseeable result

of the original negligence will not break the chain of

causation, even if those acts are criminal.     See Jupin v. Kask,

447 Mass. 141, 148 (2006); Mullins v. Pine Manor College, 389
                                                                    19


Mass. 47, 62 (1983).    "It is irrelevant whether [the defendant]

foresaw or should have foreseen the specific danger that

occurred . . . .     It is sufficient that the same general kind of

harm was a foreseeable consequence of the defendant's risk-

creating conduct."     Jupin, supra at 149 n.8.   See Michnik-

Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 12 (1983).

    Causation is generally a factual question for the jury.

See Mullins, 389 Mass. at 58.    "Only when no rational view of

the evidence warrants a finding that the defendant was negligent

may the issue be taken from the jury."     Zezuski v. Jenny Mfg.

Co., 363 Mass. 324, 327 (1973).    "The mere existence of other

possible causes [does] not preclude the jury from finding that

the defendants' negligence was the proximate cause of the

plaintiff's damage."    Id. at 329.

    The plaintiff presented sufficient evidence for the jury to

conclude that Cummings's violent reaction was a reasonably

foreseeable result of the officers' preshooting negligence.       The

city's manual on the use of force recognizes that patfrisks are

dangerous because the subject "may have a dangerous weapon."

The plaintiff's expert, and the officers themselves, testified

that it is reasonably foreseeable that the subject of a patfrisk

will be armed and dangerous.    Kamel agreed that patfrisks are

dangerous because the subject may be expected to possess a

weapon, remove it, and cause an altercation.      Indeed, Kamel
                                                                   20


testified that based on the way Cummings was standing, and the

fact that his carotid artery was "pounding," he was probably

armed.   A rational view of the evidence allowed the jury to find

that Cummings's acts were reasonably foreseeable and, indeed,

actually foreseen.    See Jupin, 447 Mass. at 149.

    We are not persuaded by the city's argument that we will

create a disincentive for police officers to employ patfrisks

and other safety measures unless we hold, as a matter of public

policy, that Cummings's violent response to Kamel's sudden and

unexpected approach broke the chain of causation.

Municipalities will not be liable every time an attempted

patfrisk goes awry.   To prevail, a plaintiff must show that the

officers acted negligently, breached their duty of care, and

actually caused injury -- inherently fact-specific inquiries.

And this case presents unique facts.   The officers failed to

read supplemental text messages informing them of information

crucial to responding appropriately to the scene.    When the

officers arrived, they did not separate the parties, who were

within arm's reach of each other.   Kamel failed to inform the

other officers that he intended to conduct a patfrisk, and then

proceeded to do so without restraining Cummings or taking any

necessary precautions.   Moreover, as the plaintiff's expert in

police practices testified, the officers did not encounter a

dangerous, fast-moving situation.   When confronting a perilous
                                                                   21


and quickly evolving emergency, even officers' hasty actions may

be reasonable in the circumstances, or injury to bystanders

unavoidable.     The jury reasonably concluded that that was not

the case here.

    Conclusion.     The amended judgment and the order denying the

motion for judgment n.o.v. are affirmed.

                                      So ordered.
