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A Terrible Set of Facts; An Unfortunate Result


The law is a jealous mistress. I always construed that to mean that law is a very demanding task/vocation. Unfortunately, you could also say that the law can be a cruel mistress.

A recent and tragic case brings home the proposition on just how cruel the law can be, or at least seem to be. A fourth grader in a Lynn public school had been the target of ongoing bullying. One morning, when the class was lining up to enter the school, he was pushed down the stairs. The child suffered a severe spinal injury, resulting in paralysis. His parents brought suit against the attacking child who pushed their son down the stairs and also brought suit against the City of Lynn. Alyssa Cormier, et al v. City of Lynn, et al, 91 Mass. App. Ct. 1101 (2017).

In this blog I will confine myself to a discussion of the claim against the City of Lynn. We’ve talked about the Mass Tort Claims Act, c. 258 of the Mass. General Laws, in past blogs. For centuries the sovereign, the government and its political subdivisions, were exempted from civil liability, from being sued. That changed with c. 258, a Massachusetts statutory law that was passed in 1977. It allowed people to sue the sovereign, the government, or any political subdivision/municipality (i.e. school systems). One of the features of that statute is that it affords a recovery of no more than $100,000, so it can be rather minimal relative to the injuries sustained.

But let’s talk about the theoretical nature of the claim in this case, the claim against the school department. Specifically, what about the claim against the City of Lynn for not ensuring that bullying didn’t occur in and around the 4th grade classroom. Is the City of Lynn liable? Is Lynn civilly responsible for what happened? For this purpose, by the way, the school department is synonymous with the City of Lynn.

What we learn about the law is that yes, we are permitted to sue the sovereign, though only permitted to sue for up to $100,000, but we cannot get a recovery in this instance. The law mandates that public employers such as the City of Lynn are responsible only for affirmative acts that they carry out, not for failure to act or ordinary negligence as we understand that term. They say that there have to be reasonable limits to the government’s liability. Thus, the statute carves out exceptions to the right to sue for certain kinds of claims. Here, because this act was a violent/tortious act of a third person and the school simply failed to stop it from happening, there can be no recovery as a matter of law. What does as a matter of law mean? It means that a jury will not be permitted to decide the case. The Superior Court ruled that way, the Appeals Court affirmed and the Supreme Judicial Court likewise affirmed: as a matter of law there can be no recovery.

The courts decided that this is not the kind of claim that you can successfully make under the statute, c. 258. It is very unfortunate that this result occurred, and very unfortunate that recovery couldn’t be had. The court doesn’t want it to be understood that it doesn’t care about bullying. Indeed, the first part of the decision and the last part of the decision dealt with the evils of bullying. Yes, they appreciated the harmful and terrible nature of bullying. Not a surprise as any reasonable person in authority should agree on that. However, the matter of civil liability presents other considerations. In concluding that there can be no civil liability against the City of Lynn and its school department, the Supreme Judicial Court noted that “public policy demand[s] some reasonable limits to governmental liability in order for taxpayers to avoid a potentially catastrophic financial burden.”

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