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17-P-230                                             Appeals Court

  ALEXANDRA STAHR & others1 vs. LINCOLN SUDBURY REGIONAL HIGH
                        SCHOOL DISTRICT.


                             No. 17-P-230.

           Middlesex.      November 9, 2017. - May 18, 2018.

            Present:    Agnes, Maldonado, & McDonough, JJ.


Practice, Civil, Motion to dismiss. Massachusetts Tort Claims
     Act. Governmental Immunity. School and School Committee,
     Athletic coach, Liability for tort. Negligence, School,
     Governmental immunity. Words, "Intervention."


     Civil action commenced in the Superior Court Department on
September 18, 2015.

     A motion to dismiss was heard by Kenneth J. Fishman, J.,
and a motion for reconsideration was considered by him.


    John N. Morrissey for the plaintiffs.
    Christine M. Dowling for the defendant.


    AGNES, J.     The principle that "if there is tortious injury

there is liability" is one of long standing in Massachusetts

when the parties are private actors.     Historically, however, the


    1    Jennifer Stahr, John Stahr, Stephen Stahr, and David
Stahr.
                                                                      2


principle had no application when the negligent actors were

employees of State or local government, because their employers

were shielded from such lawsuits based upon the ancient doctrine

of sovereign immunity.    Morash & Sons v. Commonwealth, 363 Mass.

612, 618-619 (1973).     With the adoption of the Massachusetts

Tort Claims Act in 1978, G. L. c. 258 (act), inserted by St.

1978, c. 512, § 15, the Legislature abolished much of the

governmental immunity doctrine subject to several exclusions.

See G. L. c. 258, §§ 2, 10(a)-(j).    Recently, in Cormier v.

Lynn, 479 Mass. 35 (2018), the Supreme Judicial Court considered

the applicability of a specific exclusion in the act that 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."        G. L.

c. 258, § 10(j), inserted by St. 1993, c. 495, § 57.     In

Cormier, the court, in keeping with prior case law, held that

§ 10(j) comes into play unless the public employer, by some

affirmative act, "originally caused" the condition or situation

that forms the basis for the plaintiff's negligence claim, 479

Mass. at 40, and determined that a grade school student who

suffered a severe spinal injury as a result of being pushed down

a stairwell at school by a classmate could not bring suit
                                                                   3


against the city of Lynn and its school department, among

others.   The court concluded that the claims were barred either

because they "originat[ed] from a failure to act rather than an

affirmative act," or because any affirmative actions by the

defendants were "'too remote as a matter of law to be the

original cause' of [the student's] injuries . . . and therefore

cannot be said to have 'materially contributed' to creating the

specific condition or situation resulting in [the] injuries."

Id. at 41, citing Brum v. Dartmouth, 428 Mass. 684, 696 (1999),

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

    In the case before us, we must determine whether § 10(j) is

applicable to negligence claims brought by the plaintiffs

against the defendant, Lincoln Sudbury Regional High School

District (defendant).   The plaintiffs' claims arise out of an

injury sustained by Alexandra Stahr, a member of the defendant's

varsity field hockey team, who was struck by a field hockey

stick wielded by another team member during a practice session.

In addition, we also must consider whether a specific statutory

exception to the immunity afforded by § 10(j) permits the

plaintiffs' claims to proceed because they are grounded in "the

intervention of a public employee which causes injury to the

victim or places the victim in a worse position than [s]he was

in before the intervention."   G. L. c. 258, § 10(j)(2).    For the

reasons that follow, we conclude that notwithstanding the
                                                                      4


serious injuries suffered by Alexandra,2 the plaintiffs' claims

are barred by § 10(j) and do not come within the saving

provision of § 10(j)(2).

     In their amended complaint, the plaintiffs allege that the

defendant was negligent in (1) failing to properly train and

supervise the athletic coaches and athletes present when

Alexandra was injured; (2) failing to seek adequate medical

assistance at the time of her injuries and, further, failing to

provide adequate postinjury monitoring and planning related to

Alexandra's injuries; and (3) failing to implement a written

academic reentry plan following Alexandra's injuries.     The

plaintiffs also assert claims premised on negligent infliction

of emotional distress and loss of consortium due to the acts and

omissions of the defendant.

     The defendant filed a motion to dismiss pursuant to

Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), on the basis that

G. L. c. 258, § 10(j), barred the claims brought against the

defendant, a regional school district.    The motion judge

dismissed the complaint in its entirety after finding that G. L.

c. 258, § 10(j), insulated the defendant from liability.        For

the reasons set forth below, we affirm.




     2 Because the plaintiffs share a surname, we refer to
Alexandra by her first name.
                                                                     5


    Background.   On September 30, 2012, Alexandra participated

in field hockey practice as a member of the defendant's varsity

field hockey team.    On that day, the team participated in a

drill introduced and supervised by an alumna player acting as a

volunteer coach (volunteer coach).   The head varsity field

hockey coach (head coach) was also present on the field but did

not actively participate in the supervision of the drill.      Prior

to beginning the drill, neither coach gave the players any

instructions or warnings as to techniques that could endanger

other players.   The coaches also failed to prohibit the players

from practicing dangerous techniques and did not inform the

players that they would be penalized for utilizing such

techniques.   During the drill, Alexandra was struck in the face

by a teammate's field hockey stick after the teammate chose to

pass the ball via a "hard-drive" as opposed to a "push-pass."

The blow knocked out two of Alexandra's teeth and caused her to

lose consciousness.

    The volunteer coach did not provide Alexandra with

assistance after she was injured.    The head coach left the field

to find first aid supplies and did not immediately assist

Alexandra or assess her injuries.    While the head coach was

getting supplies, one of Alexandra's teammates called

Alexandra's father.   Upon her return to the field, the head

coach, who had retrieved one of Alexandra's teeth, put it on ice
                                                                   6


and directed Alexandra to apply ice and gauze to her mouth.      The

head coach did not take any steps to mitigate the effects of a

possible concussion, and the defendant had not yet implemented a

concussion protocol as required by G. L. c. 111, § 222, and 105

Code Mass. Regs. §§ 201.00 et seq. (2011).3   When Alexandra's

father arrived at the field, the head coach did not explain to

him the circumstances of Alexandra's injury or provide advice

about how to treat her injury, including the proper protocol to

follow in the event of a suspected concussion.   Alexandra's

father took her for emergency dental surgery but failed to seek

further emergency medical treatment.

     Alexandra was subsequently diagnosed with a concussion on

October 5, 2012.   The symptoms of her concussion caused her

academic performance to suffer over a prolonged period of time.

The defendant provided her with little academic assistance and

did not implement a written graduated reentry plan,4 which

ultimately led Alexandra to withdraw from Lincoln-Sudbury

Regional High School and transfer to another school.




     3 General Laws c. 111, § 222, establishes a regulatory
framework relating to head injury safety and education.

     4 See 105 Code Mass. Regs. § 201.010(E) (2011) ("Each
student who is removed from practice or competition and
subsequently diagnosed with a concussion shall have a written
graduated reentry plan for return to full academic and
extracurricular athletic activities").
                                                                     7


     Discussion.    "We review the allowance of a motion to

dismiss de novo . . . accept[ing] as true the allegations in the

complaint and draw[ing] every reasonable inference in favor of

the plaintiff."    Curtis v. Herb Chambers I-95, Inc., 458 Mass.

674, 676 (2011).

     1.   General Laws c. 258, § 10(j).   In this case, we must

once again wade into the "interpretive quagmire" that is G. L.

c. 258, § 10(j).    See Brum, 428 Mass. at 692; Cormier, 479 Mass.

at 40 n.10.   Section 10(j) confers significant protection from

tort liability to public employers by barring "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."5   G. L. c. 258, § 10(j).     See

Cormier, supra at 39-40.

     a.   "Original cause" of Alexandra's injuries.   The

plaintiffs first argue that the head coach's decision to allow

an "untrained volunteer coach to introduce and supervise [a]

novel close quarters drill" constituted an affirmative act that

was the "original cause" of Alexandra's injuries.




     5 It is undisputed that the defendant is a public employer.
See G. L. c. 258, § 1.
                                                                   8


     "To have 'originally caused' a condition or situation for

the purposes of § 10(j), the public employer must have taken an

affirmative action," and the employer's act "must have

materially contributed to creating the specific 'condition or

situation' that resulted in the harm."    Cormier, 479 Mass. at

40, quoting from Brum, 428 Mass. at 695-696, and Kent, 437 Mass.

at 319.

     While the plaintiffs argue that the affirmative act of

allowing an untrained volunteer coach to supervise a novel drill

was the "original cause" of Alexandra's injuries,6 their amended

complaint makes clear that their claim is rather that the

coaches' lack of supervision and inadequate instruction prior to

allowing the players to engage in the drill -- both omissions --

caused Alexandra's injuries.   The plaintiffs' claim in this

respect amounts to an attempt to hold the defendant liable for

failing to ensure Alexandra's safety during field hockey

practice.   As the Supreme Judicial Court stated in Cormier, 479

Mass. at 42, "Such a claim is precluded under the act."     The

plaintiffs' claim must fail, as it is premised on the

defendant's failure to act.    See id. at 41-42 (students

     6 Even if we consider this theory of liability, the act of
allowing an untrained volunteer coach to direct and supervise
the drill in which Alexandra was injured would not qualify as
the "original cause" of the harm complained of because it is too
attenuated from the events that were the direct cause of that
harm. See Brum, 428 Mass. at 695; Jacome v. Commonwealth, 56
Mass. App. Ct. 486, 489 (2002).
                                                                   9


instructed to line up before school without adequate supervision

or guidance from defendant constituted failure to prevent harm

in form of spinal injury to student who was pushed down

stairwell, as opposed to affirmative act under § 10[j]).7

     b.   Aftermath of the injury.   The plaintiffs next argue

that § 10(j) does not bar so much of their claims as are based

on the independent negligent acts of the defendant that occurred

after Alexandra was initially injured.

     i.   Independent acts of negligence.   Alexandra's injuries

were caused by the negligent act of a third person -- here, her

teammate –- and, as discussed supra, the defendant was not the

"original cause" of Alexandra's injuries.    The plaintiffs

nevertheless maintain that the defendant is liable by arguing

     7 For the same reason that Gennari v. Reading Pub. Schs., 77
Mass. App. Ct. 762 (2010), was distinguishable in Cormier, 479
Mass. at 42 n.13, it is also distinguishable from the facts
presented in the case before us. In Gennari, an elementary
school principal directed first graders to participate in recess
in a concrete courtyard containing numerous "bench-walls" with
sharp edges. During recess, the plaintiff was pushed by a
classmate and struck his face on the corner of one of the
concrete bench-walls located in the courtyard. 77 Mass. App.
Ct. at 763-764. The plaintiff subsequently filed suit against
the school district. This court held that § 10(j) did not bar
the plaintiff's claims against the school district on the basis
that the principal's decision to hold recess in a concrete
courtyard populated with bench-walls was an affirmative act
constituting an "original cause" of the situation that led to
the plaintiff's injury. Id. at 765. Here, as in Cormier, the
original cause of Alexandra's injury was an omission -- the
coaches' failure to properly instruct and supervise the athletes
participating in the drill, and thereby ensure Alexandra's
safety. See Cormier, supra at 42 n.13.
                                                                  10


that the defendant's failure to implement and adhere to proper

concussion protocols pursuant to G. L. c. 111, § 222, and 105

Code Mass. Regs. §§ 201.00 et seq., constituted independent acts

of negligence that exacerbated the harm initially caused by

Alexandra's teammate.8   However, § 10(j), by its plain language,

precludes liability in such circumstances, as the exclusion is

triggered by conduct amounting to a "failure to act to . . .

diminish the harmful consequences of . . . the . . . tortious

conduct of a third person, which is not originally caused by the

public employer."   See Anderson v. Gloucester, 75 Mass. App. Ct.

429, 434-435 (2009) (holding that § 10[j] barred plaintiffs'

negligent misidentification claim because police officer's

misidentification of fire victim, while affirmative act intended

to diminish ultimate harm suffered, was not original cause of

harmful consequences suffered by plaintiffs, which stemmed from

fire that city did not cause).

     8 General Laws c. 111, § 222(f), inserted by St. 2010,
c. 166, § 1, provides:

     "Nothing in this section shall be construed to waive
     liability or immunity of a school district or its officers
     or employees. This section shall not create any liability
     for a course of legal action against a school district, its
     officers or employees."

While the plaintiffs admit that the statute itself does not
create a cause of action against the defendant, they argue that
they may nonetheless bring a cause of action by showing that the
defendant breached a duty owed to Alexandra by failing to comply
with the statutory mandates of G. L. c. 111, § 222, and the
applicable regulations.
                                                                    11


    ii.   Negligent intervention under § 10(j)(2).   The

plaintiffs further argue that the motion judge erred in

dismissing their amended complaint because the defendant's

negligent intervention falls within the exception to § 10(j)

immunity set forth in § 10(j)(2).   Section 10(j)(2) provides

that § 10(j) immunity shall not apply to "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 [s]he was

in before the intervention."   The term "intervention" is not

defined in G. L. c. 258, §§ 1 or 10.    When a statutory term is

not specifically defined, we give it the "usual and accepted

meaning, as long as [that] meaning[ is] consistent with the

statutory purpose."   Commonwealth v. Zone Book, Inc., 372 Mass.

366, 369 (1977).   See Commonwealth v. Gove, 366 Mass. 351, 354-

355 (1974).   Typically, the usual and accepted meaning of a

statutory term can be derived from a source such as a

dictionary.   Zone Book, Inc., supra.   The term "intervention" is

commonly understood to mean "the act or fact of intervening."

Webster's Third New International Dictionary 1183 (1993).      In

this sense, "intervention" refers to an affirmative act on the

part of the intervener.   This is how the term has been

understood and applied in our appellate decisions.   Compare

Jones v. Maloney, 74 Mass. App. Ct. 745, 750 (2009) ("The

assistant principal's failure to take various actions, including
                                                                   12


contacting the [plaintiff's] mother, . . . cannot be considered

acts of intervention under § 10[j][2]"), with Serrell v.

Franklin County, 47 Mass. App. Ct. 400, 405 (1999) (§ 10[j][2]

exception applicable where affirmative act of pushing iron gate

against plaintiff to subdue inmate exacerbated situation to

plaintiff's detriment).

    Here, the intervening "acts" alleged to fall within the

scope of § 10(j)(2) are, rather, plainly omissions.    These

include the head coach's failure both to explain to Alexandra's

father the circumstances of Alexandra's injury and to provide

advice about how to treat her injury, and the defendant's

failure to implement the proper concussion protocols under G. L.

c. 111, § 222, and 105 Code Mass. Regs. §§ 201.00 et seq.      Thus,

the plaintiffs' arguments as to the applicability of

§ 10(j)(2)'s exception to the exclusion from liability set forth

in § 10(j) must also fail.   As we have noted on other occasions

and in other contexts involving the scope of statutory remedies,

the exception set forth in § 10(j)(2) reflects a policy

judgment.   "If it is unwise, it is not for us to say so; the

remedy lies with the Legislature."   Murphy v. Police Commr. of

Boston, 369 Mass. 469, 471 (1976).   See Commonwealth v. Vickey,

381 Mass. 762, 767 (1980) ("[W]hen the statute appears not to

provide for an eventuality, there is no justification for

judicial legislation").
                                                                   13


    2.    Other claims.   The plaintiffs' other claims, all of

which stem from the injuries sustained by Alexandra during field

hockey practice, also were properly dismissed by the motion

judge.    See Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 493

(2002).

                                     Judgment affirmed.
