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18-P-1353                                               Appeals Court

 MARIANNE BAPTISTE1 & another2 vs. EXECUTIVE OFFICE OF HEALTH
                 AND HUMAN SERVICES & others.3


                            No. 18-P-1353.

         Suffolk.     December 4, 2019. - February 28, 2020.

                 Present:   Meade, Shin, & Singh, JJ.


Constitutional Law. Civil Rights, Supervisory liability,
     Immunity of public official. Massachusetts Tort Claims
     Act. Governmental Immunity. Commonwealth, Claim against,
     Liability for tort. Department of Youth Services.



     Civil action commenced in the Superior Court Department on
April 15, 2016.

     A motion to dismiss was heard by Karen F. Green, J.


     Ira H. Zaleznik for the plaintiffs.


     1 Individually and as legal guardian and next friend of
Gregory Williams, Jr.

     2   Gregory Williams, Sr.

     3 Secretary of the Executive Office of Health and Human
Services; Department of Youth Services; Peter Forbes,
individually and as Commissioner of the Department of Youth
Services; and John Hughes, individually and as regional director
of the Department of Youth Services.
                                                                   2


     Katherine B. Dirks, Assistant Attorney General, for the
defendants.
     Philip T. Tierney, for Douglas K. Chin, was present but did
not argue.


     MEADE, J.   The plaintiffs, Marianne Baptiste and Gregory

Williams, Sr., brought this action to recover damages against

the defendants, the Massachusetts Executive Office of Health and

Human Services (HHS), the Department of Youth Services (DYS),

and certain of their employees4 after a DYS-committed juvenile

injured their son, Gregory Williams, Jr. (Williams),5 while he

was in DYS custody at the Casa Isla Short-Term Treatment and

Revocation Center (Casa Isla).   As pertinent here, the

plaintiffs asserted three claims:   (1) a claim, pursuant to 42

U.S.C. § 1983, against DYS Commissioner Peter Forbes and DYS

Regional Director John Hughes in their individual capacities

(collectively, DYS individual defendants), for failure to

provide adequate medical care in violation of the Eighth and

Fourteenth Amendments to the United States Constitution; (2) a

negligence claim, pursuant to G. L. c. 258, § 2, against HHS,

the Secretary of HHS, and DYS; and (3) a claim pursuant to G. L.


     4 Also named in the complaint are Douglas Chin and
Volunteers of America of Massachusetts, Inc. (VOA), and certain
of its employees. They are not parties to this appeal. See
note 7, infra.

     5 For the sake of clarity, we shall refer to Gregory
Williams, Jr., as "Williams," and to his father as "Gregory
Williams, Sr."
                                                                       3


c. 231, § 85X, against all of the defendants for Baptiste and

Gregory Williams, Sr.'s loss of consortium.      Defendants HHS, the

Secretary of HHS, DYS, DYS's Commissioner, and DYS's Regional

Director (collectively, Commonwealth defendants) brought a

motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365

Mass. 754 (1974).6   A Superior Court judge allowed the motion,

and a separate and final judgment entered for the Commonwealth

defendants pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820

(1974).7   The plaintiffs have appealed.     We affirm.8

     Background.9    1.   The program.   Casa Isla was a program for

juvenile males located in a facility (now closed) on Long Island

in Boston Harbor.    Casa Isla was operated by Volunteers of

America of Massachusetts, Inc. (VOA), a nonprofit entity under

contract with DYS to operate youth residential programs.       VOA

also operated a separate residential drug and alcohol recovery


     6 Although certain unnamed DYS employees were also
identified as defendants in each of the above counts, the motion
to dismiss was not brought on their behalf.

     7 Neither VOA nor Chin was a party to the Commonwealth
defendants' motion to dismiss; VOA and Chin remain defendants in
the plaintiffs' suit.

     8 In the Superior Court, the parties agreed that the loss of
consortium claim is entirely derivative of the § 1983 and
negligence claims; accordingly, we do not discuss it separately.

     9 The facts provided herein are derived from the complaint,
which we treat as true for purposes of this appeal. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Iannacchino v.
Ford Motor Co., 451 Mass. 623, 636 (2008).
                                                                     4


program for juvenile males on Long Island known as "Project

Rebound."    The two programs were housed in separate facilities.

     On May 21, 2012, Williams was adjudged a youthful offender,

and was committed to DYS's custody and care pursuant to G. L.

c. 119, § 58 (c).   On March 25, 2013, following a series of

placements, Williams was transferred to Casa Isla to undergo

approximately three months of treatment.

     2.   The assault.   On the morning of April 19, 2013, Douglas

Chin, a seventeen year old resident of Project Rebound, said he

wanted to get "kicked out" of Project Rebound and that he wanted

to punch someone so he would be returned to Pembroke House.10

Later that day, Chin and Williams participated in a flag

football game between Casa Isla residents and Project Rebound

residents.   Two Casa Isla staff members were supervising the

game, in which approximately twenty residents were

participating.

     During the football game, at approximately 12:00 P.M., Chin

ran toward Williams, who was looking in a different direction,

and repeatedly struck him with a closed fist on the left side of

his throat and jaw.    Prior to the attack, Williams and Chin had




     10 The plaintiffs also allege that Chin said that he was
going to attack the "big one," referring to Williams. However,
the complaint does not allege that these statements were made to
VOA staff, or that VOA knew of the statements at the time of the
attack.
                                                                      5


not exchanged words and did not know one another.     Two Casa Isla

staff members intervened and stopped the attack; the football

game was suspended, and the Casa Isla residents were instructed

to proceed to lunch.

     3.    Symptoms and injury.   At lunch immediately following

the game and on two occasions thereafter, Williams complained of

a headache to Casa Isla staff.11    A VOA staff member gave him

ibuprofen.    No one took Williams to see the nurse on staff or to

the hospital.     Between 3:35 P.M. and 4:00 P.M., Williams took a

shower at the suggestion of VOA staff members, after which he

reported feeling better.     At approximately 5:00 P.M., Williams

told a staff member that, in addition to his headache, he also

was experiencing severe pain on his right side, and asked to see

a nurse.     Residents reported that between 4:15 P.M. and 5:00

P.M., Williams started complaining that he could not feel his

legs.     The VOA staff member noted that Williams was experiencing

facial asymmetry, right side weakness, and trouble speaking.

The staff member contacted Boston Emergency Medical Services

(Boston EMS) around 5:10 or 5:15 P.M.     Boston EMS arrived at

5:40 P.M. and transported Williams to Boston Medical Center.

     Williams suffered a traumatic carotid artery dissection and

occlusion resulting in a middle cerebral artery stroke,


     11The complaint does not allege to whom Williams
complained.
                                                                     6


seizures, and cerebral edema.     As a result, he now has severe

and permanent brain damage.     Williams currently resides in a

residential program and requires twenty-four hour care.

    4.   VOA.   For approximately twenty years, VOA had been a

support contract vendor under agreement with DYS and HHS, which

were responsible for the oversight of VOA.     VOA's contract with

DYS required VOA to comply with all applicable provisions of law

relative to the care of clients and to implement policies and

procedures that are equal to or better than those of DYS.     At

the time of the April 19, 2013 assault, DYS regulations then in

effect included:   a requirement that "[a]ll facility personnel

responsible for the care and custody of clients shall be trained

in emergency first-aid procedures," 109 Code Mass. Regs.

§ 11.26(1) (1993); authorization for the provision of medical

care in medical emergencies, see 109 Code Mass. Regs. § 11.04(3)

(1993) ("When there is a medical emergency, as determined by any

medical provider, no one's consent is required in order to allow

a client to receive necessary medical care"); and a requirement

that each facility administrator "shall develop written plans

and procedures . . . for the secure storage and controlled

administration of all medications and drugs."     109 Code Mass.

Regs. § 11.28(2) (1993).

    In 2002, DYS issued a policy on "Use of Over the Counter

(OTC) Medications" that permits nonmedical staff to administer
                                                                     7


nonprescription medications under specific conditions, such as

when a resident's medical complaint is covered by standing

orders, i.e., a "standard of treatment for each patient for a

given condition [that is] prepared and signed by a qualified

health staff person."

    5.   The audits.    The complaint alleges that the DYS

Commissioner and the Regional Director disregarded VOA's

noncompliance with safety requirements.    In February 2013, DYS

conducted a program compliance review of Casa Isla and

determined that Casa Isla's director and assistant director were

not in compliance with required first-aid training and

certifications.   However, the plaintiffs' complaint does not

allege that Casa Isla's director or assistant director had any

involvement in Williams's care on April 19, 2013.     DYS had also

documented noncompliance with required first-aid training and

certifications in 2010, 2012, and 2013, but the complaint does

not allege that anyone involved in Williams's care on April 19,

2013, lacked first-aid training and certifications.

    A postassault, 2014 audit of Casa Isla conducted by DYS

confirmed that several staffers had failed to attend some

required trainings, and also reported documentation

deficiencies.   Casa Isla's log of trainings and certifications

does not indicate that "OTC Medication Training" or equivalent

training was provided to staff.   However, the complaint does not
                                                                      8


allege that any of the individuals who did not attend the

trainings were involved in Williams's care on April 19, 2013.

    Discussion.    1.   Standard of review.   We review the

allowance of a rule 12 (b) (6) motion to dismiss de novo.      A.L.

Prime Energy Consultant, Inc. v. Massachusetts Bay Transp.

Auth., 479 Mass. 419, 424 (2018).   We accept "the facts alleged

in the complaint as true and draw[] all reasonable inferences in

the plaintiff[s'] favor."    Edwards v. Commonwealth, 477 Mass.

254, 260 (2017).   However, "[w]e do not regard as 'true' legal

conclusions cast in the form of factual allegations."      Id.,

quoting Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 n.6

(2009).   To survive a motion to dismiss, the facts alleged must

"'plausibly suggest[] (not merely [be] consistent with)' an

entitlement to relief."   Iannacchino v. Ford Motor Co., 451

Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 557 (2007).   "The plausibility standard is not akin to

a 'probability requirement,' but it asks for more than a sheer

possibility that a defendant has acted unlawfully" (citation

omitted).   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

    2.    Supervisory liability under § 1983.    a.   Underlying

constitutional violation.    Title 42 U.S.C. § 1983 (2012)

provides in relevant part:

    "Every person who, under color of any statute, ordinance,
    regulation, custom, or usage, of any State . . . subjects,
    or causes to be subjected, any citizen of the United States
                                                                    9


    or other person within the jurisdiction thereof to the
    deprivation of any rights, privileges, or immunities
    secured by the Constitution and laws, shall be liable to
    the party injured in an action at law, suit in equity, or
    other proper proceeding for redress . . . ."

Section 1983 is "not itself a source of substantive rights, but

merely provides a method for vindicating federal rights

elsewhere conferred" (quotation and citation omitted).     Graham

v. Connor, 490 U.S. 386, 393-394 (1989).

    Governmental actors "are responsible only for 'their own

illegal acts'" (emphasis omitted).   Connick v. Thompson, 563

U.S. 51, 60 (2011), quoting Pembaur v. Cincinnati, 475 U.S. 469,

479 (1986).   However, they may be liable under § 1983 if the

governmental actors themselves "subject[]" a person to a

deprivation of rights or "cause[]" a person "to be subjected" to

such deprivation.   See Monell v. Department of Social Servs. of

the City of N.Y., 436 U.S. 658, 692 (1978).   In other words, for

purposes of § 1983, agency officials "may not be held liable for

the unconstitutional conduct of their subordinates under a

theory of respondeat superior."   Iqbal, 556 U.S. at 676.    Of

course, supervisory liability itself is premised on there being

an underlying constitutional violation of the plaintiff's rights

by agency subordinates.   The existence of an Eighth Amendment

violation must be evaluated before determining whether the

agency officials were deliberately indifferent to a plaintiff's

serious medical needs, and whether there is a direct causal link
                                                                  10


between an agency policy or custom and the constitutional

deprivation.   See Zingg v. Groblewski, 907 F.3d 630, 635 (1st

Cir. 2018); Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir. 2008).

See also Rivera v. R.I., 402 F.3d 27, 39 (1st Cir. 2005) (§ 1983

liability for failure to train or for inadequately training

employees premised on underlying constitutional violation of

plaintiff's rights [citation omitted]); Maldonado-Denis v.

Castillo-Rodríguez, 23 F.3d 576, 581-582 (1st Cir. 1994) (to

establish supervisory liability, plaintiff must first show

underlying constitutional violation).

    Here, the plaintiffs claim that the underlying

constitutional violation was that, in violation of the Eighth

Amendment, the VOA staff members provided inadequate medical

care to Williams, who was in DYS custody.   However, the Eighth

Amendment does not protect against merely inadequate medical

care.   Rather, it protects against deliberate indifference to a

serious medical need, constituting an "unnecessary and wanton

infliction of pain" (citation omitted).   Estelle v. Gamble, 429

U.S. 97, 104 (1976).

    Eighth Amendment claims have both an objective component

and a subjective component.   Zingg, 907 F.3d at 635.   Here, the

objective component requires the plaintiffs to prove that

Williams had a medical need "that [had] been diagnosed by a

physician as mandating treatment, or one that [was] so obvious
                                                                     11


that even a lay person would easily recognize the necessity for

a doctor's attention" (citation omitted).     Kosilek v. Spencer,

774 F.3d 63, 82 (1st Cir. 2014).     "The subjective component

requires the plaintiff[s] to show that [VOA employees], in

treating [Williams's] medical needs, possessed a sufficiently

culpable state of mind.     That state of mind is one that amounts

to deliberate indifference to [Williams's] health or safety."

Zingg, supra.     To establish a deliberately indifferent state of

mind, the plaintiffs must "provide evidence that the [VOA

employees] had actual knowledge of impending harm, easily

preventable, . . . and yet failed to take the steps that would

have easily prevented that harm.     Such a showing may be made by

demonstrating that the defendant[s] provided medical care that

was so inadequate as to shock the conscience, . . . or, put

otherwise, that was so clearly inadequate as to amount to a

refusal to provide essential care" (quotations and citations

omitted).   Id.

    However, "an inadvertent failure to provide adequate

medical care cannot be said to constitute an unnecessary and

wanton infliction of pain or to be repugnant to the conscience

of mankind" (quotations omitted).     Estelle, 429 U.S. at 105-106.

That is, an accident or mere negligence that produces pain and

suffering cannot by itself be characterized as a wanton

infliction of unnecessary pain.
                                                                       12


       Here, as alleged, when Williams complained of a headache,

VOA staff gave him ibuprofen but did not refer him to medical

services for assessment.      This does not suffice as an allegation

that VOA had actual knowledge of any easily preventable,

impending harm to Williams, "and yet failed to take the steps

that would have easily prevented that harm."       Zingg, 907 F.3d at

635.    Instead, the plaintiffs' allegations amount to no more

than negligence, which does not rise to the level of a

constitutional violation.      See Estelle, 429 U.S. at 106; Braga

v. Hodgson, 605 F.3d 58, 61 (1st Cir. 2010).

       b.   Deliberate indifference.   Supervisory liability under

§ 1983 is different in kind from vicarious liability.      That is,

"[a]lthough a supervisor need not personally engage in the

subordinate's misconduct in order to be held liable, his own

acts or omissions must work a constitutional violation."         Parker

v. Landry, 935 F.3d 9, 15 (1st Cir. 2019).       See Iqbal, 556 U.S.

at 676.     "Facts showing no more than a supervisor's mere

negligence vis-à-vis his subordinate's misconduct are not enough

to make out a claim of supervisory liability."       Parker, supra.

"At a minimum, the plaintiff must allege facts showing that the

supervisor's conduct sank to the level of deliberate

indifference."    Id.    "A showing of deliberate indifference has

three components:       'the plaintiff must show "(1) that the

officials had knowledge of facts, from which (2) the official[s]
                                                                  13


can draw the inference (3) that a substantial risk of serious

harm exists."'"   Id., quoting Guadalupe-Báez v. Pesquera, 819

F.3d 509, 515 (1st Cir. 2016).   See Board of Comm'rs of Bryan

County, Okla. v. Brown, 520 U.S. 397, 410 (1997) ("'[d]eliberate

indifference' is a stringent standard of fault, requiring proof

that a[n agency employee] disregarded a known or obvious

consequence of his action").

    Even if we were to assume that the action or inaction by

the VOA employees violated the Eighth Amendment, the motion

judge properly found that the plaintiffs failed to allege

sufficient facts to suggest that the DYS individual defendants

were on notice of, and were deliberately indifferent to, the

existence of a substantial risk of serious harm.   As the judge

held, "[t]he plaintiffs allege only that[, as a result of the

2010, 2012, and 2013 audits,] the DYS [individual d]efendants

were aware of VOA[]'s noncompliance with the requirement that

all facility personnel responsible for the care and custody of

youth have emergency first-aid training, as set forth in 109

Code Mass. Regs. § 11.26 . . . ."   However, as the judge held,

knowledge of noncompliance with a single safety regulation "does

not plausibly suggest that the DYS [individual d]efendants were

on notice" of the existence of a substantial risk of serious

harm or that they were deliberately indifferent to such a risk.

See Ramirez-Lluveras v. Rivera-Merced, 759 F.3d 10, 20-22 (1st
                                                                  14


Cir. 2014).    See also Parker, 935 F.3d at 15 ("isolated

instances of a subordinate's constitutional violations . . .

will not clear the causation bar" [quotation and citation

omitted]).

    Furthermore, the plaintiffs do not allege that the DYS

individual defendants had any involvement with VOA or the Casa

Isla program, or more specifically, with medicine administration

policies or staff members' training and certification records.

Although the plaintiffs allege that DYS had identified

deficiencies in VOA's certifications and training, they do not

allege that the DYS individual defendants were aware of this.

The plaintiffs allege that VOA did not adhere to a DYS policy on

the controlled administration of medications, but they do not

allege that the DYS individual defendants were aware of, let

alone encouraged, condoned, or acquiesced to, this alleged

nonadherence.   See Connick, 563 U.S. at 61 (["a supervisor's]

culpability for a deprivation of rights is at its most tenuous

where a claim turns on a failure to train").   See also Oklahoma

City v. Tuttle, 471 U.S. 808, 822 (1985) (alleged policy of

inadequate training "far more nebulous, and a good deal further

removed from the constitutional violation, than was the policy

in Monell").

    Finally, the plaintiffs do not allege that the DYS

individual defendants had notice of any prior failures by VOA
                                                                    15


staff members to monitor residents' injuries or symptoms, which

might have indicated a risk of a violation of Williams's Eighth

Amendment rights.     More directly, the plaintiffs do not allege

that the DYS individual defendants engaged in any "supervisory

encouragement, condonation or acquiescence" that amounted to

deliberate indifference to any VOA conduct.     Pineda, 533 F.3d at

54.   The DYS individual defendants cannot be deliberately

indifferent to an omission or deficiency in a first-aid training

program of which they had no knowledge.

      c.   Affirmative link.   Finally, for a supervisor to be held

liable for a subordinate's constitutional violation, there must

be "an affirmative link" between the subordinate's behavior and

the supervisor's action or inaction "such that the supervisor's

conduct led inexorably to the constitutional violation"

(citation omitted).     Morales v. Chadbourne, 793 F.3d 208, 221

(1st Cir. 2015).    See Guadalupe-Báez, 819 F.3d at 515

(affirmative link requires conduct that can be "characterized as

supervisory encouragement, condonation, or acquiescence or gross

negligence amounting to deliberate indifference" [citation

omitted]).

      Here, the plaintiffs failed to allege any causal

connection, let alone a strong one, between VOA's alleged

noncompliance with the first-aid training requirements of 109

Code Mass. Regs. § 11.26 and Williams's injuries.     As the motion
                                                                   16


judge held, the plaintiffs do "not allege that any facility

personnel who supervised [Williams] on the day of the incident

had not received the required emergency first aid training.

[Rather, they] merely allege generally that the DYS [individual]

defendants were on notice that some VOA[] staff had not received

such training in the past and that the failure of VOA[] staff

members to administer proper emergency first aid treatment on

the day of the incident worsened [Williams's] injuries.     [In

other words,] the plaintiffs have failed to allege any

affirmative link between the DYS [individual d]efendants'

alleged conduct, and the alleged violation of [Williams's]

Eighth Amendment right to adequate medical care."    See

Guadalupe-Báez, 819 F.3d at 515; Maldonado-Denis, 23 F.3d at

582.    The § 1983 count of the complaint against the individual

DYS defendants was properly dismissed.

       3.   Immunity from negligence claim under public duty rule.

The plaintiffs also brought a negligence claim, pursuant to the

Massachusetts Tort Claims Act (act), G. L. c. 258, § 2, against

HHS and DYS.12    This claim is actually against the Commonwealth,

and it too was properly dismissed.




       The plaintiffs also named the Secretary of HHS, in her
       12

official capacity, as a defendant in this count, but concede
that she is immune from liability under c. 258. The complaint
did not name her as a defendant in her individual capacity.
                                                                    17


    The act is a limited waiver of the Commonwealth's sovereign

immunity.    See Cormier v. Lynn, 479 Mass. 35, 39 (2018).   Within

the act are a variety of exclusions from that limited waiver.

One such exclusion can be found in G. L. c. 258, § 10 (j), which

provides the Commonwealth immunity from suit 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."

See Kent v. Commonwealth, 437 Mass. 312, 317 (2002).     Section

10 (j) has been described as a "'statutory public duty rule

providing governmental immunity,' Carleton v. Framingham, 418

Mass. 623, 627 (1994), the purpose of which is to 'provide some

substantial measure of immunity from tort liability to

government employers.'    Brum v. Dartmouth, [428 Mass. 684,] 695

[(1999)]."   Kent, supra at 317-318.   The Supreme Judicial Court

has construed the "original cause" language to mean an

affirmative act (not a failure to act) by a public employer that

"materially contributed to creating the specific 'condition or

situation' that resulted in the harm" inflicted by a third

party.   Cormier, supra at 40, quoting Kent, supra at 319.    In

other words, § 10 (j) provides immunity from tort liability to

public employers "for a public employer's act or failure to act

to prevent harm from the wrongful conduct of a third party
                                                                   18


unless the condition or situation was 'originally caused' by the

public employer."    Cormier, supra, citing Brum, supra at 692,

695.

       Here, as the plaintiffs expressly pleaded, Williams's

condition or situation resulted "from Chin's closed-fist strike

to the left side of Mr. Williams'[s] neck."    The two had never

met, and the attack was unprovoked.   The plaintiffs do not

allege that Commonwealth employees committed any actual

affirmative act that led to Chin's assault on Williams, nor do

they claim that DYS had any interactions with or knowledge of

Chin before the assault.    Rather, the plaintiffs repeatedly

allege conduct that amounts to failure to prevent the injury

caused by a third party and characterize it as an alleged

failure by VOA staff to recognize the severity of Williams's

injury and an alleged failure by DYS to provide more monitoring

and oversight of VOA's program at Casa Isla.13   These



       Examples of allegations in the complaint include the
       13

following: "Williams was neither sent to Boston Medical Center
for a medical assessment, nor provided with any medical
treatment following the attack"; DYS "failed to prepare any
written policy or procedure detailing criteria or assessment
protocols for evaluating whether . . . or not a resident is in
need of a medical assessment by trained medical professionals";
DYS "failed . . . to ensure . . . Williams was provided adequate
protection from harm by fellow involuntarily confined youths and
adequate medical care"; DYS "failed . . . to ensure that VOA[]
complied with all of its legal obligations," including
certification and training requirements; and VOA did not have a
written policy for the administration of over-the-counter
medications.
                                                                    19


allegations, however, are exactly the type of failure to prevent

or diminish the harmful consequences of negligence claims that

are barred by § 10 (j).14    To hold otherwise would be 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.     See Jane J. v. Commonwealth, 91 Mass.

App. Ct. 325, 330 (2017) (hospital's failure to segregate

patients by gender not original cause of female patient's rape

by male patient); Jacome v. Commonwealth, 56 Mass. App. Ct. 486,

490 (2002) (failures to close beach, post warning signs, and

failure of lifeguards to remain on duty during scheduled shift

not original cause of drowning).

     Finally, the plaintiffs claim that two exceptions to

governmental immunity found in G. L. c. 258, § 10 (j) (2), (4),




     14The plaintiffs' reliance on Devlin v. Commonwealth, 83
Mass. App. Ct. 530 (2013), is misplaced. In that case, a
civilly committed patient was assaulted by a criminal convict
working at the facility. We concluded that § 10 (j) did not bar
the claim because an original cause of the assault was the
Commonwealth's "affirmative decision to allow convicted
inmates[, who come from a higher-risk population,] to work in an
area where civilly committed individuals were housed and treated
. . . ." Id. at 535. Here, however, the plaintiffs do not
allege that DYS had notice that Chin came from a higher-risk
population than Williams, or any other basis for asserting that
DYS had notice of the risk of an assault. In fact, as alleged,
Williams, as a youthful offender, was a higher-risk resident
than Chin, who was merely enrolled in a civil drug and alcohol
recovery program.
                                                                   20


defeat HHS and DYS's immunity.     The two provisions are as

follows:

    "(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

    . . .

    "(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."

G. L. c. 258, § 10 (j) (2), (4).    The plaintiffs claim that

VOA's response on April 19, 2013, comes within the purview of

both of the above exceptions, and thus that HHS and DYS are

liable for that response.   We disagree.

    According to the complaint, VOA is an independent

contractor.   The plaintiffs do not claim that VOA employees are

"public employees," as defined by G. L. c. 258, § 1, such that

their actions fall within the exceptions of § 10(j) (2), (4).

Nor does the complaint allege, as the motion judge properly

held, any facts that plausibly suggest that any VOA staff member

was a public employee.   Because, within the meaning of the act,

"an independent contractor is not a public employee," Chiao-Yun

Ku v. Framingham, 62 Mass. App. Ct. 271, 274 (2004); Thornton v.

Commonwealth, 28 Mass. App. Ct. 511, 513 (1990), and because the

complaint does not allege that DYS had "retained control" over

any part of the work covered by VOA's contract, see Chiao-Yun
                                                               21


Ku, supra at 274-275, the exceptions to governmental immunity do

not apply.

                                  Judgment affirmed.
