
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1962                                     DEBRA HORTA,                                Plaintiff, Appellant,                                          v.                             CHARLES B. SULLIVAN, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Sheila M.  Tierney with whom Tierney  Law Office was  on brief for            __________________           ___________________        appellant.            Linda M. Walsh with whom Kroll & Tract  was on brief for appellees            ______________           _____________        Charles B. Sullivan,  Paul G.  Sadeck, Edward  Mello and  the Town  of        Freetown.            James  F. Gettens with whom  Healy & Rocheleau,  P.C. was on brief            _________________            ________________________        for  appellees Jeffrey  Mennino,  James K.  Bowles,  and the  Town  of        Lakeville.                                  ____________________                                  September 29, 1994                                 ____________________                      CAMPBELL, Senior  Circuit  Judge.   In our  earlier                                ______________________            disposition  of  this  appeal1,  we disposed  of  all  claims            except appellant's claim against  the town of Lakeville under            the  Massachusetts Tort  Claims Act,  Mass. Gen.  L. ch.  258            (Count  IV).   We  retained appellate  jurisdiction over  the            latter  claim  against Lakeville  pending  an  answer to  the            following question, which  we certified to the  Massachusetts            Supreme Judicial Court pursuant to its Rule 1:03:                 Do the discretionary decisions of a police  officer                 to begin  and continue the high-speed  pursuit of a                 vehicle then  being operated  in  violation of  law                 involve  policymaking or  planning for  purposes of                 immunity under Massachusetts General Law ch. 258,                   10(b)?                      The  Massachusetts  court  has  now  answered  that            question  in the negative.  Horta v. Sullivan, 418 Mass. 615,                                        _____    ________            615 (1994).  Accordingly, Mennino's actions were not entitled            to immunity under   10(b),  and the district court's granting            of summary judgment  on Count  IV in favor  of Lakeville  was            improper.2   Horta v. Sullivan, 4 F.3d 2, 24 (1st Cir. 1993).                         _____    ________                                            ____________________            1.   Horta v. Sullivan, 4 F.3d 2 (1st Cir. 1993).                          ________            2.  Although  for other  reasons we  earlier vacated  summary            judgment  on appellants'  claim  against Freetown  under  the            Massachusetts Tort  Claims  Act, Horta,  4  F.3d at  25,  the                                             _____            answer  of the  Massachusetts Supreme  Judicial Court  to our            certified question  appears germane to that claim as well, as            we  thought might be the  case.  Id.   Since that claim is no                                             ___            longer before us, however, we do not address it at this time,            but  leave to the parties  and the district  court any action            that may be appropriate in light of the Massachusetts court's            opinion.                                         -2-            We therefore vacate summary judgment on this claim and remand            to the district court for further proceedings consistent with            our  opinion  herein and  the  opinion  of the  Massachusetts            Supreme Judicial Court.  We note that while our certification            was  pending  before  the   Massachusetts  high  court,   the            Massachusetts  state  legislature  amended the  Massachusetts            Tort Claims Act.   See  Act approved January  14, 1994,  1993                               ___            Mass.  Legis. Serv. ch. 495,     57, 144  (H.B. 5620) (West).            The  Supreme  Judicial  Court  did  not  rule  on  how  these            amendments might affect Horta's  claim, if at all,  since the            issue was not before it.   See Horta, 418 Mass. at  622 n.14.                                       ___ _____            We similarly do not reach this issue, but anticipate that the            district court, if  called on to do so by one  or more of the            parties, will rule on the  materiality of these amendments to            the pending  claim and will  factor the  amendments into  its            final outcome if and to the extent appropriate.                      Count IV is vacated and remanded.                      ________________________________                                         -3-
