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SJC-12323

     ALYSSA CORMIER & another1   vs.   CITY OF LYNN & others.2



         Essex.     November 9, 2017. - February 27, 2018.

         Present:   Gants, C.J., Gaziano, Lowy, & Budd, JJ.


Massachusetts Tort Claims Act. Governmental Immunity.
     Municipal Corporations, Liability for tort, Governmental
     immunity. School and School Committee, Liability for tort.
     Negligence, Governmental immunity.



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

     A motion to dismiss was heard by Robert N. Tochka, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Douglas K. Sheff (Sara W. Khan, Frank J. Federico, Jr., &
Donald R. Grady, Jr., also present) for the plaintiffs.
     James P. Lamanna, Assistant City Solicitor (George S.
Markopoulos, Assistant City Solicitor, also present) for city of
Lynn.

     1
       James Mumbauer, individually and as parent and next friend
to Matthew Mumbauer.
     2
       Nancy Doherty, Debra Ruggiero, Linda J. Morgan, Lynn
Public Schools, North Shore Medical Center (NSMC), and Ethel Wu.
One defendant is a minor and will not be named.
                                                                   2


     Gary Buseck, Patience Crozier, & Joseph N. Schneiderman,
for GLBTQ Legal Advocates & Defenders, amicus curiae, submitted
a brief.


     BUDD, J.   Bullying is a persistent, pernicious problem in

our schools -- it can cause emotional and, at times, physical

harm.    In this case, Matthew Mumbauer suffered both.   Matthew

was a public elementary school student in Lynn when he was

pushed down a stairwell at school by a classmate.    Matthew's

fall led to a spinal injury, resulting in permanent paralysis.

He and his parents, Alyssa Cormier and James Mumbauer

(collectively, plaintiffs), brought claims against a number of

defendants in connection with the incident and Matthew's

subsequent medical care.    A Superior Court judge allowed a

motion to dismiss all claims against the city of Lynn, Lynn

Public Schools (school district), and their public employees

(collectively, public defendants).3   The Appeals Court affirmed

that decision in an unpublished memorandum and order issued

pursuant to its rule 1:28.    Cormier v. Lynn, 91 Mass. App. Ct.

1101 (2017).




     3
       A Superior Court judge dismissed the plaintiffs' complaint
against the defendants Morgan, Wu, and NSMC after the medical
malpractice tribunal found that there was not sufficient
evidence to raise a legitimate question as to liability
appropriate for judicial inquiry. A settlement agreement was
reached with the classmate who pushed Matthew; all claims
against him were dismissed with prejudice.
                                                                    3


     We allowed the plaintiffs' motion for further appellate

review, limited to whether the Massachusetts Tort Claims Act

(act), G. L. c. 258, § 10 (j), bars the plaintiffs from bringing

claims against the public defendants in relation to this

incident.   Thus, the issue that we must decide is not whether

the school was negligent for failing to act reasonably to

prevent the bullying that led to Matthew's injuries; the

complaint alleges that it was, and for purposes of this appeal,

we accept that allegation as true.    Rather, the issue on appeal

is whether, under the act, the public defendants may be held

liable for that negligence.    We conclude that the act protects

them from liability for such negligence.4

     Background.   The facts of this case, drawn from the

complaint, are tragic.   On March 10, 2008, then fourth grade

student Matthew Mumbauer was pushed down a stairwell by a

classmate while attending a public elementary school in Lynn.

The incident occurred while the students were lining up at the

beginning of the school day.

     By late morning and throughout the afternoon, Matthew

complained to teachers and classmates of "tingling and numbness"

in his extremities.   His symptoms were not reported to the

school nurse or any other medical professionals.    By the end of


     4
       We acknowledge the amicus letter submitted by GLBTQ Legal
Advocates & Defenders.
                                                                   4


the school day, Matthew reported feeling like his legs were

"dead weight" and he needed assistance to walk out of the

school.

    In the afternoon, Matthew's parents brought him to North

Shore Medical Center (NSMC), where he was diagnosed with a

sprain in his right foot and given pain medication.   He stayed

home from school the following day.   On March 12, Matthew

returned to NSMC because he was unable to move his hands or

legs.   Matthew was then transferred to Massachusetts General

Hospital in Boston, where he was diagnosed with an injury to his

spinal column and spinal cord, which resulted in the onset of

quadriplegia.   He is permanently paralyzed and confined to a

wheelchair.

    The plaintiffs' complaint alleges that, prior to being

pushed down the stairs in March, 2008, Matthew was subject to

constant bullying at school by a small group of students,

including the classmate who pushed Matthew.   Matthew's mother

had reported acts of harassment levied against him on multiple

occasions during the 2007-2008 school year to school officials.

Matthew had also complained to teachers and administrators at

the school numerous times about bullying and harassment.     The

plaintiffs contend that the school did not enforce its own

antibullying policies.
                                                                     5


     Discussion.    "We review the allowance of a motion to

dismiss de novo."    Curtis v. Herb Chambers I-95, Inc., 458 Mass.

674, 676 (2011).    "For the purposes of that review, we accept as

true the facts alleged in the plaintiffs' complaint[] and any

exhibits attached thereto, drawing all reasonable inferences in

the plaintiffs' favor."    Revere v. Massachusetts Gaming Comm'n,

476 Mass. 591, 595 (2017).

     1.   Sovereign immunity and the act.   For over a century,

"the Commonwealth c[ould] not be impleaded in its own courts,

except by its own consent" at common law.    Troy & Greenfield

R.R. v. Commonwealth, 127 Mass. 43, 46, 50 (1879).5

Municipalities were also largely immune from liability in tort.6

See Bolster v. Lawrence, 225 Mass. 387, 388-390 (1917)

(summarizing circumstances in which municipalities were immune

     5
       After this court's decision in Troy & Greenfield R.R. v.
Commonwealth, 127 Mass. 43 (1879), the Legislature passed St.
1887, c. 246, which authorized the Superior Court to hear
certain claims against the Commonwealth. This court construed
the statute to exclude jurisdiction over tort claims. See
R. Zoppo Co. v. Commonwealth, 353 Mass. 401, 404 (1967); Smith
v. Commonwealth, 347 Mass. 453, 456 (1964); Murdock Parlor Grate
Co. v. Commonwealth, 152 Mass. 28, 30-31 (1890). See also
Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 614-615
(1973) (discussing waiver of sovereign immunity implicit in St.
1887, c. 246, and its successor statute).
     6
       Prior to 1973, a municipality was not liable for tortious
acts in the conduct of its schools. See Desmarais v. Wachusett
Regional Sch. Dist., 360 Mass. 591, 593-594 (1971); Molinari v.
Boston, 333 Mass. 394, 395-396 (1955); Reitano v. Haverhill, 309
Mass. 118, 122 (1941); Warburton v. Quincy, 309 Mass. 111, 117
(1941); Sweeney v. Boston, 309 Mass. 106, 109-110 (1941); Hill
v. Boston, 122 Mass. 344, 380 (1877).
                                                                    6


from liability in tort at common law); Mower v. Leicester, 9

Mass. 247, 249 (1812) (concluding that common law prohibits tort

actions that are not statutorily authorized for "neglect of

duties enjoined on them").   Public employees were always immune

from liability for negligent omissions, or "nonfeasance."     See

Desmarais v. Wachusett Regional Sch. Dist., 360 Mass. 591, 593

(1971); Trum v. Paxton, 329 Mass. 434, 438 (1952).

    In Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 618-

619 (1973), and Whitney v. Worcester, 373 Mass. 208, 210 (1977),

we determined that the underlying basis for common-law sovereign

immunity for both the Commonwealth and municipalities was

"logically indefensible," and stated our intention to abrogate

the doctrine of municipal immunity after the conclusion of the

1978 legislative session (providing the Legislature with an

opportunity to set forth sovereign immunity policy for the

Commonwealth and its political subdivisions through

legislation).   We reasoned that the common-law rules of

sovereign immunity were incompatible with the fundamental

principle in tort "that if there is tortious injury there is

liability."   Morash & Sons, Inc., supra at 621.   At the same

time, we acknowledged that public policy demanded some

reasonable limits to governmental liability in order for

taxpayers to avoid a potentially catastrophic financial burden.

See id. at 623 & n.6.
                                                                   7


     Shortly before the end of the 1978 legislative session, the

Legislature passed G. L. c. 258, the act,7 which allowed for

limited tort liability for the Commonwealth and its political

subdivisions.   See St. 1978, c. 512.   Section 2 of the act

provides that public employers are liable for negligent or

wrongful acts or omissions of public employees acting within

their scope of employment.    See G. L. c. 258, § 2.8

     2.   G. L. c. 258, § 10 (j).   Although the act statutorily

eliminates the immunity that governmental bodies would

ordinarily enjoy under common law, it sets forth several

exceptions to that general waiver of sovereign immunity.     See

G. L. c. 258, § 10 (a)-(j).




     7
       This court and commentators refer to G. L. c. 258 as the
Massachusetts Tort Claims Act (act). See, e.g., Brum v.
Dartmouth, 428 Mass. 684, 686 (1999); Jean W. v. Commonwealth,
414 Mass. 496, 498 (1993); Dinsky v. Framingham, 386 Mass. 801,
802 (1982); Glannon, The Scope of Public Liability Under the
Tort Claims Act: Beyond the Public Duty Rule, 67 Mass. L. Rev.
159, 159 (1982). However, the act's full title is "An Act
establishing a claims and indemnity procedure for the
commonwealth, its municipalities, counties and districts and the
officers and employees thereof." St. 1978, c. 512.
     8
       General Laws c. 258, § 2, provides that governmental units
"shall be liable for injury or loss of property or personal
injury or death . . . in the same manner and to the same extent
as a private individual under like circumstances." The language
is substantially the same as the Federal government's waiver of
sovereign immunity. See 28 U.S.C. § 2674 ("The United States
shall be liable, respecting the provisions of this title
relating to tort claims, in the same manner and to the same
extent as a private individual under like circumstances . . .").
                                                                   8


     Section 10 (j) bars "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."9   G. L. c. 258, § 10 (j).




     9
       The Legislature carved out and permitted plaintiffs to
pursue some claims that would otherwise be covered by G. L.
c. 258, § 10 (j), by exempting certain claims from § 10 (j)'s
exemption from the act's general waiver of sovereign immunity.
Pursuant to G. L. c. 258, § 10 (j) (1)-(4), the exemption shall
not apply to

          "(1) any claim based on explicit and specific
     assurances of safety or assistance, beyond general
     representations that investigation or assistance will be or
     has been undertaken, made to the direct victim or a member
     of his family or household by a public employee, provided
     that the injury resulted in part from reliance on those
     assurances. A permit, certificate or report of findings of
     an investigation or inspection shall not constitute such
     assurances of safety or assistance; and

          "(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; and

          "(3) any claim based on negligent maintenance of
     public property; [and]

          "(4) any claim by or on behalf of a patient for
     negligent medical or other therapeutic treatment received
     by the patient from a public employee."
                                                                     9


     In other words,10 § 10 (j), which "was intended to provide

some substantial measure of immunity from tort liability" to

public employers, eliminates government liability for a public

employer's act or failure to act to prevent harm from the

wrongful conduct of a third party unless the condition or

situation was "originally caused" by the public employer.     Brum

v. Dartmouth, 428 Mass. 684, 692, 695 (1999).

     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.11    Id. at

695-696.   In Brum, a public high school student was stabbed to

death in a classroom during the school day by one of three armed

individuals, after an earlier violent interaction involving the

assailants.   Id. at 686.   School officials had been informed

that the assailants, who had left the school grounds after the

altercation, planned to return and retaliate against certain

students, including the child who was ultimately killed.    Id. at

686-687.   The victim's mother brought suit against the

municipality for its negligent failure to maintain adequate

     10
       "To say that § 10 (j) presents an interpretive quagmire
would be an understatement." Brum, 428 Mass. at 692.
     11
       The question of original causation is separate from the
question of liability. Even when a court concludes that a
public employer has affirmatively acted so as to create original
causation such that it may be sued under the act, a plaintiff
still bears the burden of establishing the elements of whatever
tort claim he or she brings.
                                                                    10


security measures at the school and failure to protect her son

despite being made aware of a known threat.     Id. at 687.   We

concluded that § 10 (j) precluded the municipality's liability

for failure to prevent the killing absent an affirmative act by

a public employee in the operation of its schools.     Id. at 696.

See Bonnie W. v. Commonwealth, 419 Mass. 122, 125-126 (1994)

(concluding that § 10 [j] barred claim based on negligent

failure to supervise parolee but permitted claim based on

negligently recommending his employment).

    Furthermore, for the "original cause" language under

§ 10 (j) to apply, "the act must have materially contributed to

creating the specific 'condition or situation' that resulted in

the harm."   Kent v. Commonwealth, 437 Mass. 312, 319 (2002).      In

Kent, we concluded that § 10 (j) required dismissal of a claim

against the parole board for its negligence in releasing a

convicted murderer who, eight years later, shot a police

officer.   Id. at 313, 319-320.   We concluded that the parole

board's affirmative act did not materially contribute to the

police officer's injuries.    Id. at 319-320.

    3.     Application of § 10 (j) to plaintiffs' tort claims.

The parties disagree as to whether the stated exception in

§ 10 (j) applies to the plaintiffs' claims.     The defendants

argue that the claims are precluded by § 10 (j) because

Matthew's injuries were caused by the "violent or tortious
                                                                   11


conduct of a third person."    The plaintiffs acknowledge that a

third party directly harmed Matthew, but argue that the school

district is not immune from liability because school employees

"originally caused" the dangerous situation that resulted in

Matthew's injuries.    See G. L. c. 258, § 10 (j).   See also Brum,

428 Mass. at 692.     Thus, we must determine whether the

plaintiffs allege that the school district employees took an

affirmative act that materially contributed to creating a

condition or situation that resulted in Matthew's injuries.     See

Kent, 437 Mass. at 319.

    There can be little doubt that some actions by the public

defendants contributed indirectly to Matthew's injuries, for

example, Matthew and his tormentors were required to attend

school and were placed in the same class.     These actions,

however, "are too remote as a matter of law to be the original

cause" of Matthew's injuries under § 10 (j) and therefore cannot

be said to have "materially contributed" to creating the

specific condition or situation resulting in Matthew's injuries.

See Kent, 437 Mass. at 319.

    In their complaint, the plaintiffs make numerous

allegations that the school district and its employees

negligently failed to protect Matthew or negligently failed to
                                                                   12


diminish the harm caused by Matthew's injuries.12   These claims

are barred by § 10 (j) because they originate from a failure to

act rather than an affirmative act.    See Brum, 428 Mass. at 696.

     In their brief, the plaintiffs highlight that the school's

staff had a policy of having students line up in a particular

order outside school each morning before the start of the school

day without guidance or supervision.   This, they argue, was an

affirmative act that resulted in Matthew and his classmate being

in close proximity and created the situation that led to

Matthew's injuries.13   Putting aside the question whether this


     12
       The plaintiffs' allegations include that the public
defendants were negligent for failing to investigate properly
the plaintiffs' prior complaints of bullying and harassment of
Matthew and failing to implement the mandatory policies of the
school committee of Lynn designed to ensure a safe learning
environment. They further allege that the city of Lynn was
negligent in hiring, retaining, and supervising teachers and
liable for failing properly to instruct, train, and supervise
staff regarding the proper methods of implementing school
district antibullying policies.
     13
       The plaintiffs cite Gennari v. Reading Pub. Sch., 77
Mass. App. Ct. 762 (2010), to support their argument. There,
the Appeals Court held that a principal's decision to hold
recess in a concrete courtyard was an "original cause" of the
situation leading to a student's injury when a classmate pushed
the student and he struck his head on concrete. Id. at 765.
The court reasoned that "[r]unning, falling, and pushing are
understood, foreseeable, even inherent parts of . . . recess"
and therefore the causal link between the principal's decision
and the injury was "not so remote as a matter of law" that her
decision was not an "original cause" within the meaning of
§ 10 (j). Id.

     Gennari, which perhaps represents the outer limits of
conduct falling within the scope of what might be considered an
                                                                   13


particular fact was adequately pleaded in the plaintiffs'

complaint,14 this allegation is, at bottom, another claim for

negligence based on an act that fails to prevent or diminish

harm by failing to keep Matthew and his bullies apart.

"[C]onditions that are, in effect, failures to prevent harm,

would undermine [the] principle purpose" of § 10 (j).       Brum, 428

Mass. at 696.    Effectively, the plaintiffs seek to hold the

school liable for not acting in a manner that ensured Matthew's

safety.   Such a claim is precluded under the act.

     Conclusion.     There is no question that bullying is a

serious issue.     The tragedy that occurred in this case

highlights the emotional pain of day-to-day harassment suffered




"original cause" under § 10 (j), is readily distinguishable from
this case. In Gennari, the principal affirmatively chose to
hold recess in a concrete area rather than a safer alternative.
In contrast, as discussed infra, regardless of what the line-up
policy was, the claim here amounts to an alleged failure to act
to keep Matthew safe.
     14
       The complaint does not allege that Matthew had a
particular assigned spot in line. It simply states, "[W]hile
lining up at the beginning of the school day, Matthew Mumbauer
was violently shoved by [a classmate]." However, when Matthew
was deposed he stated that he was "assigned in the back." See
Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 285 n.6 (2007)
("The only facts appropriate for consideration in deciding a
motion to dismiss are . . . those drawn from factual allegations
contained with the complaint or within attached exhibits").
                                                                  14


by those who are bullied, as well as the horrific physical

consequences that can result.15

     In this case it appears, based upon the allegations of the

complaint, that those working at the elementary school could

have and should have done more to protect Matthew.

Nevertheless, the fact remains that the Legislature has imposed

restrictions on the act that exempt school districts from

liability.   See Whitney, 373 Mass. at 210 ("on the subject of

sovereign immunity . . . barring any possible constitutional

infirmities, the Legislature will have the final word").

     The order of the Superior Court judge allowing the motion

to dismiss is affirmed.

                                    So ordered.


     15
       An antibullying statute was enacted in 2010 and amended
in 2014. G. L. c. 71, § 37O, inserted by St. 2010, c. 92, § 5,
and amended through St. 2014, c. 86, §§ 1-4. Although it was
not in effect in the time frame relevant to this case, the
schools of the Commonwealth are now statutorily required to
address bullying. The antibullying statute prohibits bullying
on school grounds and requires school districts to "develop,
adhere to and update a plan to address bullying prevention and
intervention." G. L. c. 71, § 37O (d) (1). The Department of
Elementary and Secondary Education (department) has the power to
"investigate certain alleged incidents of bullying," determine
whether a school district has "properly implemented its
prevention plan," and require the school district to take
actions to address any relevant findings that the department
makes. G. L. c. 71, § 37O (n). It remains to be seen whether
the regulatory mechanisms of the antibullying statute provide
sufficient incentives for schools to develop and adhere to
adequate measures to protect students from these harms. See
G. L. c. 71, § 37O; Brum, 428 Mass. at 709 (Ireland, J.,
concurring).
