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15-P-340                                                Appeals Court

                       JANE J.1   vs.   COMMONWEALTH.


                              No. 15-P-340.

           Suffolk.       April 26, 2016. - April 12, 2017.

Present:   Kafker, C.J., Cypher, Rubin, Maldonado, & Massing, JJ.2


Practice, Civil, Summary judgment. Massachusetts Tort Claims
     Act. Governmental Immunity. Commonwealth, Claim against,
     Liability for tort. Negligence, Hospital, Proximate cause,
     Governmental immunity. Proximate Cause.


     Civil action commenced in the Superior Court Department on
December 5, 2011.



    1
        A pseudonym.
    2
       This case was initially heard by a panel comprised of
Justices Rubin, Maldonado, and Massing. After circulation of a
majority and dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Chief Justice
Kafker and Justice Cypher. Following the expansion of the
panel, the court ordered a rehearing of the case before the
expanded panel. See Sciaba Constr. Corp. v. Boston, 35 Mass.
App. Ct. 181, 181 n.2 (1993).

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


     The case was heard by Elizabeth M. Fahey, J., on a motion
for summary judgment.


     John E. Zuccaro, III, for the plaintiff.
     Anne M. McLaughlin, Assistant Attorney General, for the
Commonwealth.


     MALDONADO, J.    The plaintiff filed a complaint against the

Commonwealth under the Massachusetts Tort Claims Act, G. L.

c. 258 (MTCA), alleging that, while she was committed to a

locked unit of Tewksbury State Hospital, a similarly committed

male patient raped her while she was watching television in a

recreation room that is shared by both the male and female

patients of that unit.    The only issue before us is whether the

hospital's failure to segregate by gender its patients' use of a

common recreation room constitutes an "original cause" of the

rape.    See G. L. c. 258, § 10(j).3   Concluding that it does not,

we affirm the summary judgment entered in favor of the

Commonwealth.




     3
       General Laws c. 258, § 10(j), inserted by St. 1993,
c. 495, § 57, immunizes public employers from suit under the
MTCA for

     "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."
                                                                    3


     Background.4   Tewksbury State Hospital evaluates and treats

patients with varying degrees of mental illness.    The hospital's

Hathorne Unit is a locked unit that houses, on separate

corridors, both male and female patients.5   Male patients are not

permitted access onto the female corridor, and female patients

are not permitted access onto the male corridor, except that

patients of both genders enjoy nearly free access to a common

recreation room.    The recreation room contains a ping-pong

table, some other games, and a television set; it also leads to

a common sunroom which offers a second television set for

patient viewing.    The common rooms are not staffed or equipped

with video surveillance, but hospital staff conduct safety

checks in the rooms every thirty minutes.



     4
       We take the facts from the statement of material facts
submitted in connection with the Commonwealth's summary judgment
motion. We view any factual disputes in the light most
favorable to the plaintiff as the nonmoving party. See Milliken
& Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6 (2008);
Harrison v. Mattapoisett, 78 Mass. App. Ct. 367, 370 (2010).
Thus, we credit the plaintiff's evidence that she was raped.
     5
       The summary judgment record is silent regarding what types
of patients are assigned to the Hathorne Unit, how placement
decisions are made, who makes them, or who, other than the
plaintiff and her assailant, was housed there. The record does
include evidence that when a patient is admitted to the
hospital, the Department of Mental Health's division of forensic
mental health services conducts a check of the patient's
criminal background and queries the Sex Offender Registry Board
to determine whether the patient is a registered sex offender or
has a history of sexual offenses.
                                                                     4


     In March, 2009, a District Court judge committed the

plaintiff, who had been charged with an assault and battery, to

the hospital for a competency evaluation under G. L. c. 123,

§ 15(b).6   She was assigned to the Hathorne Unit.   The plaintiff

alleges that about three weeks into her commitment, she was

watching television in the sunroom when a male patient entered

the sunroom and forcibly raped her.7

     Like the plaintiff, the male patient was also hospitalized

on a court-ordered mental health evaluation in connection with

an open criminal charge.8   While the male patient had a criminal

history that included convictions for assaultive behavior, a

Department of Mental Health background check revealed that he

was not a registered sex offender and, further, that his

criminal history "did not suggest that he posed any risk of




     6
       Under G. L. c. 123, § 15(b), as amended through St. 2000,
c. 357, a judge in a criminal case may order a defendant to be
"hospitalized at a facility or, if such person is a male and
appears to require strict security, at the Bridgewater state
hospital . . . to determine whether mental illness or mental
defect have so affected a person that he is not competent to
stand trial or not criminally responsible for the crime or
crimes with which he has been charged."
     7
       The rape resulted in a pregnancy, which subsequently
resulted in a miscarriage.
     8
       There is no evidence that either the plaintiff or the male
patient was held on bail.
                                                                     5


committing a sexual assault or other violent sex offending

behavior."9

     In December, 2011, the plaintiff filed this tort action

alleging that the Commonwealth's negligence caused the sexual

assault, the unwanted pregnancy, and the subsequent miscarriage.

The Commonwealth moved for summary judgment on the ground that

it was immune from suit under § 10(j) of the MTCA.    A judge of

the Superior Court allowed the motion and entered summary

judgment for the Commonwealth.   This appeal followed.

     Discussion.   Summary judgment is appropriate where "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).    "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), S.C., 473 Mass. 672 (2016).    Here,

where the Commonwealth is immune from suit for "any claim based

on an act or failure to act to prevent or diminish the harmful


     9
       The plaintiff does not argue that the hospital was
negligent in its assessment of the male patient's risk of
violence.
                                                                    6


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," the defendant bore the burden of

demonstrating the absence of a triable issue regarding whether

the plaintiff's rape and resulting pregnancy were "originally

caused by the public employer" (emphasis supplied).    G. L.

c. 258, § 10(j).    Alternatively, it bore the burden of showing

that proof that the public employer "committed an affirmative

act that was the original cause of the injury" would not be

forthcoming.   Audette v. Commonwealth, 63 Mass. App. Ct. 727,

732 (2005).    See Kourouvacilis v. General Motors Corp., 410

Mass. 706, 714 (1991) ("[A] party who moves for summary judgment

has the burden of initially showing that there is an absence of

evidence to support the case of the nonmoving party shouldering

the burden of proof at trial").

    In this context, "originally caused" means an affirmative

act that creates the circumstance which results in the harm

inflicted by the third party.    See Brum v. Dartmouth, 428 Mass.

684, 693 (1999); Kent v. Commonwealth, 437 Mass. 312, 318

(2002); Gennari v. Reading Pub. Schs., 77 Mass. App. Ct. 762,

764 (2010).    The requirement of an "affirmative act" is strict;

it is also quite distinct from a failure to prevent the harm.

See Kent v. Commonwealth, supra (where the court reiterated that
                                                                       7


the "original cause" language had been construed "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").    See also Brum v. Dartmouth, 428

Mass. at 696 ("[T]o interpret . . . the subordinate clause

referring to 'originally caused' conditions, to include

conditions that are, in effect, failures to prevent harm, would

undermine that principal purpose [of § 10(j)]").     The facts of

these two cases, and several others, demonstrate the significant

difference between the failure to act and an "original cause."

       In Brum, a school principal was told that three men were

coming to attack three particular students, but neither he nor

any other school official instituted any precautionary measures

to protect the students or to prevent the attackers' entry onto

the school premises.    Id. at 686-687.   The assailants arrived at

the school visibly armed, proceeded to a second-floor classroom

unimpeded by school officials, and fatally stabbed one of the

identified students; his mother brought suit.     Id. at 687.     In

that case, the Supreme Judicial Court held that the principal's

failure to institute any safety precautions on behalf of the

student was a failure to prevent the harm and not an affirmative

act and, consequently, that it was not an original cause of the

condition or situation that lead to the student's death.        Id. at

696.   This distinction between a failure to act and an original
                                                                   8


cause was further explored by this court in Jacome v.

Commonwealth, 56 Mass. App. Ct. 486, 489-490 (2002).

    In Jacome, a teenager drowned at a public beach when

lifeguards left their posts early.    Id. at 488.   Despite the

dangerous bathing conditions, the beach remained open and no

warning signs had been posted.    The court held that, under

§ 10(j), the Commonwealth's negligent failure to prevent the

harm did not constitute an original cause of the swimmer's

drowning.   The court noted specifically that, "[h]ad the public

employees acted differently, e.g., had the beach been closed,

had conspicuous warning signs been posted, had lifeguards

remained on duty until 6:00 P.M., it is possible that the

tragedy might have been averted.    But the very statement of

these possibilities demonstrates why th[e] claim is barred by

§ 10(j).    They are all examples of ways in which the public

employees might have prevented the harm to [the deceased teenage

swimmer], and consequently they fall within the immunity from

suit in such circumstances that the Legislature has preserved."

Id. at 490.

    Similarly, in Pallazola v. Foxborough, 418 Mass. 639, 639-

640 (1994), a man was seriously injured on a public way when he

was struck by a goal post that had become electrified when fans

attending a sporting event removed the post and caused it to

come into contact with a high-voltage overhead electric power
                                                                      9


line.     Although the plaintiff recovered a jury award against the

town based upon the town's failure to provide sufficient police

protection and prevent the unlawful removal of the goal post

from the stadium, the court held that § 10(j) barred the

plaintiff's recovery and reversed the judgment.      Id. at 641-642.

In Serrell v. Franklin County, 47 Mass. App. Ct. 400 (1999), the

plaintiff, a visitor at a house of correction, was inadvertently

injured after correctional officers intervened in a fight

between an inmate and another visitor.      Id. at 400-401.   We held

that, "[t]o the extent that [the plaintiff] seeks to hold the

county liable for the correctional officers' failure to prevent

the violent outburst of [an] inmate . . . , Brum makes clear

that she may not do so."10    Id. at 403.

     Here, the plaintiff alleges that by allowing access to the

recreation room to both males and females, the hospital is an

original cause of her rape, pregnancy, and miscarriage.       While

we agree with the dissent that "[t]he Commonwealth bears a


     10
       In Serrell, 47 Mass. App. Ct. at 401-403, 405, we also
concluded that § 10(b) and (j) precluded recovery under several
of the plaintiff's theories, including the Commonwealth's
"failure to provide a safe area in which to visit an inmate;
. . . failure properly to train, instruct and supervise
correctional officers; [and] the correctional officers' failure
to monitor the inmates in the visiting area and thereby control
and ameliorate an increasingly volatile situation," but that
§ 10(j) did not bar recovery based on a theory of negligent
intervention, where the officers' own actions inadvertently
caused harm to the plaintiff.
                                                                   10


special responsibility for the safety and general well-being of

those who have been involuntarily committed to State psychiatric

facilities," post at   , we do not think it a fair inference

that by merely allowing both men and women access to a common

recreation room, the hospital was an original cause of the

plaintiff's rape and, therefore, of the injuries, including the

plaintiff's pregnancy and miscarriage, which flowed therefrom.

See, e.g., Kent v. Commonwealth, 437 Mass. at 319-320 (where the

Commonwealth did not create the condition that resulted in the

victim's shooting by a parolee, § 10[j] barred suit).    Indeed,

the Supreme Judicial Court has refused to "adopt an

interpretation of [§ 10(j)] that construes the words 'originally

caused' so broadly as to encompass the remotest causation and

preclude immunity in nearly all circumstances."    Brum, 428 Mass.

at 695.

    In Kent v. Commonwealth, 437 Mass. at 313, the Supreme

Judicial Court addressed an analogous situation.   There, a

police officer was shot and seriously wounded by a convicted

murderer who had been paroled years earlier.   The officer argued

that the parole board's decision to parole his assailant was an

original cause of his injury.   Id. at 318.   The court disagreed.

It reasoned that while "[t]here can be little doubt that the

[earlier] parole decision contributed in some measure to [the

shooter's] freedom [years later], at least in the sense that the
                                                                  11


parole board released him from State confinement when he might

otherwise still be serving his life sentence," that act did not

"materially contribute[]" to creating the specific condition or

situation that resulted in harm.   Id. at 318, 319.   The same is

true here.

    There can be no question that not every man is a rapist or

at risk of a sexual offense, and it is undisputed that the

hospital checks its patients' criminal and sexual offending

history before admitting them, and that it did so in this case.

The hospital made a reasoned decision, which is not at issue

here, that the male patient posed no risk of sexual assault.

The male perpetrator also did not "appear[] to require strict

security," as indicated by his not having been committed to the

Bridgewater State Hospital pursuant to G. L. c. 123, § 15(b),

and the hospital here had no role in committing him to its care.

See, e.g., Brum v. Dartmouth, 428 Mass. at 689 (because the

decision to release a prisoner on bail rests with the court, the

prosecutor's recommendation for release was too remote to serve

as a source of liability for the prisoner's attack on another).

Furthermore, hospital staff performed safety checks in the room

every thirty minutes, and nothing in the summary judgment record

supports an inference that the recreation room itself made the
                                                                  12


occurrence of a rape more foreseeable.11   Contrast Gennari v.

Reading Pub. Schs., 77 Mass. App. Ct. at 764-765 (that children

would run and push each other during a mandated recess session

was sufficiently foreseeable to overcome § 10[j] immunity, where

school principal chose an unsafe play area).    Under these

circumstances, the plaintiff's claim "can be characterized only

as failure to prevent the assailant from being in a position to

attack the plaintiff," which is insufficient to overcome the

immunity that § 10(j) provides.    Brum v. Dartmouth, supra at

695.

       We have no doubt that "[h]ad the public employees acted

differently" in this case by more closely monitoring the

recreation and sunroom "it is possible the tragedy might have

been averted.   But the very statement of these possibilities

demonstrates why this claim is barred by § 10(j)."    Jacome v.

Commonwealth, 56 Mass. App. Ct. at 490.    See Bonnie W. v.

Commonwealth, 419 Mass. 122, 123, 126 (1994) (the Commonwealth

was not liable for a woman's rape on the basis of a parole




       11
       On this record, there can be no reasonable depiction of
the sunroom as a secluded area. The sunroom was adjacent to the
recreation room. It was open to all patients and monitored by
staff every one-half hour. We also reject any inference that
the rape occurred because the plaintiff was in a locked hospital
unit wearing only a hospital gown, post at   .
                                                                    13


officer's failure to supervise a sexual predator parolee).12

"[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,

supra at 696.    Accordingly, we do not agree with the dissent

that the hospital's decision to not segregate by gender its

patients' use of the recreation room caused the plaintiff to be

raped by another individual.    Nor do we agree that the decision

we reach today runs afoul of our reasoning and decision in

Devlin v. Commonwealth, 83 Mass. App. Ct. 530 (2013).

       In Devlin, we concluded that a treatment center's decision

to employ its prison population to work in a treatment facility

in which it housed its civilly committed population was an

"original cause" of the violent attack sustained by the

treatment center's patient.    In that case, the treatment center

voluntarily elected to employ convicted inmates serving criminal

sentences to work at the location in which it housed its civilly

committed population -- a choice that was explicitly forbidden

by statute.    Id. at 533-534, citing G. L. c. 123, § 35, fourth

par.    Here, the hospital made no analogous decision.   Unlike the


       12
       By contrast, in Bonnie W., unlike the situation here, the
Commonwealth was liable for recommending a sexual offender for
work in a setting that gave him access to the victim's house
key. 419 Mass. at 126. Here, the hospital did not provide a
known sexual predator with access to the plaintiff.
                                                                  14


management choice made in Devlin to comingle a dangerous prison

population with a civilly-committed vulnerable population, the

hospital here did not comingle two distinctly different

committed populations.13   For all these reasons, therefore, we



     13
       In our view, the legislation referenced by the dissent,
which requires segregation of male and female detainees, has no
bearing on our case. First, the dissent has put forth no
evidence that the policy decisions that led to these statutes
concerned a fear that the mere comingling of genders would
result in an increase in the number of rapes at these
institutions. Second, it is noteworthy that each of these
statutes pertains to the segregation by gender of potentially
dangerous detainees -- either because these individuals are
imprisoned convicts, potentially dangerous substance abusers,
persons held on bail, or persons awaiting arraignment whose
potential for dangerousness has not yet been determined. See,
e.g., G. L. c. 127, § 22 ("Male and female prisoners shall not
be put or kept in the same room in a jail or house of
correction" [emphasis added]). See also G. L. c. 123, § 35
(establishing separate commitment facilities for males and
females found to be dangerous due to substance abuse disorders);
G. L. c. 125, § 16, third par., inserted by St. 1989, c. 664,
§ 1 ("The department [of correction] shall maintain at the
Massachusetts Correctional Institution, Framingham, a separate
awaiting trial unit for females" on bail); G. L. c. 127, § 20
(establishing separate reception centers for male and female
"prisoners" [emphasis added]); G. L. c. 127, § 21 (permitting
classification of prisoners by gender "to promote their . . .
safe custody . . . and to secure the separation of male and
female prisoners" [emphasis added]); G. L. c. 147, § 20 (if a
female is arrested and detained at a police station, commanding
officer must summon matron attached to station or, if no matron
is so attached, remove the female prisoner to the nearest
station with a matron).

     The record in this case does not support an inference that
the mental health patients committed to the hospital for
evaluation and placed on the Hathorne unit posed the same risks
of dangerousness as those underlying the enactment of the
statutes referenced by the dissent. There is no evidence that
the plaintiff's assailant was being imprisoned to serve a
                                                                  15


conclude summary judgment properly entered for the Commonwealth

here.

                                        Judgment affirmed.




sentence, was being held on bail, or was potentially sexually
dangerous.
    MASSING, J. (dissenting, with whom Rubin, J., joins).      In

general, the Commonwealth is not liable under the Massachusetts

Tort Claims Act (MTCA) for torts committed by third parties,

even third parties under the supervision of public employers or

their employees.   Thus, the Commonwealth cannot be sued for the

violent acts of persons at liberty on parole, even though

parolees are under the supervision of public employees and their

conditional liberty is the result of the decision of public

employees.   See Kent v. Commonwealth, 437 Mass. 312, 319 (2002).

Nor is the Commonwealth generally liable for failing to prevent

violent acts committed by one inmate against another in a

prison, house of correction, or jail.   Contrast Devlin v.

Commonwealth, 83 Mass. App. Ct. 530, 535 (2013) (no exemption

from liability where convicted inmates were allowed to work in

area of State hospital where civilly committed persons were

housed and treated).   A narrow exception exists, however, when

an act or decision of a public employer "materially contributed

to creating the specific 'condition or situation' that resulted

in the harm."   Kent, supra at 319, quoting from G. L. c. 258,

§ 10(j).   In my view, the Tewksbury State Hospital's decision to

house both male and female committed patients in the same locked

unit, and to allow the patients unsupervised access to the

common room, is such an act.   Accordingly, I respectfully

dissent.
                                                                        2


       By its terms, § 10(j) exempts the Commonwealth from

liability for "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," unless it is "originally caused by the public employer

or any other person acting on behalf of the public employer."

G. L. c. 258, § 10(j), inserted by St. 1993, c. 495, § 57.          I

recognize that this provision does not permit us to recast every

"failure to . . . prevent" the "conduct of a third person" into

an affirmative act of the public employer that "originally

caused" the "condition or situation" leading to the plaintiff's

injury, lest the exception swallow the rule.     See Brum v.

Dartmouth, 428 Mass. 684, 693 (1999).     "What is needed is an

example of a condition 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."    Ibid.   This case presents such an example.

       I do not contend that the hospital was the sole cause of

the plaintiff's alleged rape, or that it can be liable solely

for failure to prevent the plaintiff's injury.        Rather, the

hospital affirmatively acted to house in the same locked unit

both men and women who were committed for competency evaluations

in connection with criminal charges, and to permit them to have

unsupervised contact in a secluded common room.        This decision
                                                                      3


was an "original cause" of the plaintiff's rape, pregnancy, and

miscarriage.   The hospital "materially contributed to creating,"

and did not merely fail to prevent, the condition that resulted

in the plaintiff's being attacked in the common room by an

involuntarily committed male patient.

    Devlin v. Commonwealth, 83 Mass. App. Ct. 530 (2013),

governs the case before us.   In Devlin, the plaintiff had been

civilly committed under G. L. c. 123, § 35, to the Massachusetts

addiction center at the Southeastern Correctional Center in

Bridgewater to be treated for alcoholism.     Id. at 530-531.   A

criminal convict who was permitted to work in the facility as a

"trustee" attacked the plaintiff, resulting in the loss of sight

in his left eye.    Id. at 531-532.   We held that the

Commonwealth's "affirmative decision to allow convicted inmates

to work in an area where civilly committed individuals were

housed and treated" was an "original cause" of the injury.      Id.

at 535.

    Likewise, this court held under § 10(j) that a school

principal's decision to require first graders to take recess in

an enclosed, concrete courtyard materially contributed to the

severe injury that resulted when one pupil pushed over another

in the courtyard.    Gennari v. Reading Pub. Schs., 77 Mass. App.

Ct. 762, 764-765 (2010).   See Bonnie W. v. Commonwealth, 419

Mass. 122, 123-126 (1994) (Commonwealth not exempt from
                                                                   4


liability for parole officer's recommendation that convicted

rapist be hired by trailer park operator in maintenance position

that gave him access to the keys of plaintiff's mobile home,

which parolee then used to gain access to plaintiff's trailer

and sexually assault her);1 Kent, 437 Mass. at 319 n.9

(discussing Bonnie W. and other cases predating § 10[j]

illustrating factual scenarios that could come within the

concept of "original cause").

       The common thread in these cases is that an affirmative

decision by a public employer, not just a failure to act, played

a significant role in placing a vulnerable plaintiff in harm's

way.       Here, as in Devlin and Gennari, the hospital made an

affirmative decision to place the female plaintiff and her male

assailant in a confined space -- a locked hospital unit -- for

criminal competency evaluation, and to give both men and women

committed for evaluation access to an isolated, unmonitored

common room.      While the majority may be correct that the

hospital had no choice whom it accepted for evaluation, the

hospital did make an affirmative decision to house involuntarily

committed men and women together in a locked unit and to permit




       1
       By contrast, the Commonwealth was not liable for the
sexual assault based solely on the same parole officer's failure
to supervise the parolee. Bonnie W., 419 Mass. at 126.
                                                                   5


common access to the sunroom.2   Its decision materially

contributed to the situation that resulted in the plaintiff's

being in that room, wearing a hospital gown because her only

clothes were in the wash, when a male patient raped her.    "The

Commonwealth's decision was not so remote from the injury that

it can be considered not to have been an original cause."

Devlin, 83 Mass. App. Ct. at 535.

     The Commonwealth bears a special responsibility for the

safety and general well-being of those who have been

involuntarily committed to State psychiatric facilities.    See


     2
       Although the hospital's decision did not violate any law
or regulation, the statutes governing the detention of females
generally call for them to be housed in separate facilities from
similarly situated males. See, e.g., G. L. c. 127, § 22 ("Male
and female prisoners shall not be put or kept in the same room
in a jail or house of correction"). See also G. L. c. 123, § 35
(establishing separate commitment facilities for males and
females found to be dangerous due to substance abuse disorders);
G. L. c. 125, § 16, third par., inserted by St. 1989, c. 664,
§ 1 ("The department [of correction] shall maintain at the
Massachusetts Correctional Institution, Framingham, a separate
awaiting trial unit for females"); G. L. c. 127, § 20
(establishing separate reception centers for male and female
prisoners); G. L. c. 127, § 21 (allowing for classification of
prisoners by gender "to promote their . . . safe custody . . .
and to secure the separation of male and female prisoners");
G. L. c. 127, § 83A (establishing, for male prisoners, camps for
employment "in reforestation, maintenance and development of
state forests"); G. L. c. 147, § 20 (if a female is arrested and
detained at a police station, commanding officer must summon
matron attached to station or, if no matron is so attached,
remove the female prisoner to the nearest station with a
matron). While these laws may or may not have been enacted to
prevent institutional rapes, they certainly reflect a concern
that the comingling of genders in locked facilities
affirmatively creates health and safety risks.
                                                                     6


Brum, 428 Mass. at 699-700, citing DeShaney v. Winnebago County

Dept. of Social Servs., 489 U.S. 189, 199-200 (1989).     But even

without any special responsibility, the Department of Mental

Health employees "owed [the plaintiff] a duty of care, not

because they were employed to protect persons such as [the

plaintiff] and failed to do so, but because, by taking action

that exposed [the plaintiff] to risk, they were bound, as any

other person would be, to act reasonably."   Onofrio v.

Department of Mental Health, 408 Mass. 605, 610 (1990).     Under

these circumstances, I would conclude as a matter of law that

the Commonwealth is not immune from the plaintiff's claim of

negligence on the basis of § 10(j).

    Accordingly, summary judgment should not have been allowed,

and the plaintiff's MTCA claim should proceed to trial.    At

trial, the plaintiff would have the burden to prove that a rape

occurred, see ante at note 4, that the hospital or its employees

were negligent, and that their negligence was a proximate cause

of her injury.   See Harrison v. Mattapoisett, 78 Mass. App. Ct.

367, 372-373 (2010), quoting from Jupin v. Kask, 447 Mass. 141,

146 (2006) ("To prevail on a negligence claim, a plaintiff must

prove that the defendant owed the plaintiff a duty of reasonable

care, that the defendant breached this duty, that damages
                                                                 7


resulted, and that there was a causal relation between the

breach of the duty and the damage").3




     3
       The majority observes that the plaintiff does not argue
that the hospital was negligent in assessing her alleged
assailant's risk of violence. See ante at note 9. This
question is not germane to the applicability of § 10(j).
Rather, questions such as whether the hospital reasonably
concluded that this particular male patient posed no risk of
sexual assault, or whether the hospital adequately supervised
the common room, go to the ultimate issue of whether the
hospital was negligent.
