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Merit Construction Alliance v. City of Quincy

U.S. District Court Decision, 2012

The U.S. District Court (Zobel, J.) recently found that the City of Quincy’s residency requirement for public construction projects runs afoul of the U.S. Constitution’s Privileges and Immunities Clause.  The case arose when Merit and several of its members challenged Quincy’s new Responsible Employer Ordinance.   The plaintiffs moved for a preliminary injunction.  The central issue in this decision dealt with the residency requirement.  The new ordinance required that residents of Quincy must constitute 33% of the work force on public construction projects.  The plaintiffs challenged the residency requirement as a violation of the privileges and immunities clause. 

To establish a violation of the clause, the plaintiff must show an act or ordinance violates a protected privilege.  The burden then shifts to the government agency promulgating the rule to establish that it has a “substantial reason” for the difference in treatment and that the difference in treatment has a substantial relationship to those objectives.  Merit v. Quincy, Civ. Action No. 12-10458-RWZ (citing Toomer v. Witsell, 334 U.S. 385, 396 (1948)).  Quincy’s proffered reason for the difference was that Quincy residents expressed desire to see more of its benefits go to the city’s own blue collar workers.  The court found the justification unpersuasive.  “The effect of the privileges and immunities clause cannot be avoided ‘solely under the guise of avoiding economic losses to residents.’” Merit citing Silver v. Garcia, 592 F.Supp. 495, 499 (D.P.R. 1984).  The court also noted there was no evidence in the record regarding any findings by Quincy  that non-residents were the reason behind the unemployment of some Quincy residents. 

The case is a good example that local ordinances have a better chance of surviving judicial challenge when the municipality conducts fact finding on the issues, holds hearings on those findings, and then includes in the ordinance a detailed list of those findings to support the ordinance.        

Board of Health of Sturbridge v. Board of Health of Southbridge, SJC-10852

In a case involving site modifications to a local landfill, the SJC recently found that a citizens group challenging the decision by the Southbridge Board of Health lacked standing because the group failed to show or even allege that they have suffered substantial, particularized, injuries due to the Board’s decision.  In doing so, the SJC reaffirmed the long line of a cases construing the standing requirements in land use cases. 

The essential facts of the case are as follows.  In  2008, the Southbridge Recycling and Disposal Park filed an application for a minor modification of its existing site assignment pursuant to G.L. c. 111, Section 150A.  The modifications included an increase in the volume of waste accepted by the landfill and the option of receiving waste regardless of its geographic origin.  In the Spring of that year, the Southbridge Board of Health held eleven public hearings on the subject.  During the hearings, the hearing officer allowed ten citizens groups (collectively "citizens group") to appear as parties in accordance with the applicable regulations, 310 CMR 16.20 (9), (10)(e).  The citizens group, consisting of residents of Southbridge, Sturbridge and Charlton, were represented by counsel at the local hearings.  The Board of Health issued a decision allowing the site modifications, with 58 conditions attached. 

The citizens group filed a complaint for judicial review of the decision in Superior Court.  Ultimately, the Superior Court ruled that the plaintiffs’ complaint lacked merit and affirmed the Board of Health’s decision.  After the plaintiffs appealed, the case was transferred to the SJC on its own motion.  

On the issue of standing, the Court noted that each citizen had indicated that he/she “lived in the vicinity” of the landfill and that they would be “substantially and specifically affected” by the landfill expansion due to: 1) increase in “foul smelling gases; 2) increase in truck traffic; 3) cause “inevitable” drinking water contamination and 4) lower local property values.  The court found that these statements, standing alone, were insufficient to demonstrate standing.  Apparently, there was no testimony or other documentation submitted at the hearings related to the plaintiffs’ alleged injuries. 

Under Section 150A, any “person aggrieved” by a local board’s siting decision may appeal the decision pursuant to G.L. c. 30A Section 14.  Prior decisions of the court have held that a person aggrieved must show that “substantial rights have been prejudiced.”  The plaintiffs argued they were full parties during the local board’s hearing and should be accorded similar status in the litigation.  The SJC, however, noted the Board of Health’s hearings did not constitute an adjudicatory proceeding.  The regulations did not require the Board to make a determination of whether or not the complaining residents were injured prior to granting them party status during those administrative hearings.  Accordingly, the fact that the citizens groups were “parties” at the local level is not dispositive on the standing issue in Superior Court.  “Rather, it is necessary to determine whether any of the plaintiff citizen groups, or, more particularly any individual members of the citizen groups, have shown or even alleged prejudice to their own substantial rights.” 

The Court concluded that the administrative record did not contain sufficient in evidence to support a finding that the plaintiffs “will suffer prejudice to their individual rights.”  "While the plaintiffs made general assertions of a speculative collective injury as part of the proceedings before the Board of Health, such alleged injury(ies) could not be distinguished from the general concerns of the community."  In the absence of more detailed evidence in the record, the plaintiffs could not establish that they were “persons aggrieved” within the meaning of the statute, and thus lacked standing to challenge the Board’s decision. (Before concluding, the SJC briefly considered the merits of the appeal and affirmed the board’s decision on that basis as well.)

Spenlinhauer v. Town of Barnstable, Massachusetts Appeals Court
In a decision from August 2011, the Appeals Court invalidated a Barnstable parking ordinance because the ordinance qualified as a zoning regulation and was not a matter over which the town could exercise its valid police powers.  Because the ordinance was not  adopted pursuant to the zoning process under G.L. c. 40A, the court invalidated the ordinance and vacated the fine imposed upon the plaintiff.      
Here are the facts.  In 2006, after several public hearings, the Town of Barnstable adopted a “Comprehensive Occupancy” ordinance.  In pertinent part, the ordinance limited the number of vehicles that a single family dwelling could have parked on the property overnight.  Under the ordinance, the plaintiff was allowed three vehicles in his driveway.  In June of 2007, the town received a complaint that the plaintiff had six vehicles on his property outside overnight. The town’s director of public health issued a cease and desist order and a fine of $100.  The plaintiff eventually brought this action alleging that the ordinance was not valid.   The Superior Court granted summary judgment to the town.
Among other arguments, the town argued the ordinance was related to public heath based upon increased occupancy in single family residences.  However, the Appeals Court noted that there was no sufficient public health rationale evidenced in the record. 
Analysis:  The Appeals Court noted there was a fine line between general ordinances that a town may promulgate pursuant to its police powers and zoning regulations.  The court reviewed an SJC decision to assist with its analysis.  In Rayco Inv. Corp. v. Raynham, 368 Mass. 385 (1975), the court reviewed an ordinance relating to the number of trailer park licenses in the town.  Working with an incomplete record, the SJC noted the ordinance would be invalid if it was not adopted pursuant to the zoning regulation process via 40A.  The court came to that conclusion because the town had previously regulated trailer parks through zoning regulations and not general ordinances.
Returning to Barnstable, the Appeals Court noted a similar history in regards to the town’s parking regulations.  The court found the town had “historically regulated off-street parking through its zoning bylaws, not its general ordinances or bylaws.”  Also, as noted above, the court found no evidence in the record to support any public health rationale for the ordinance.  Accordingly, because the town did not enact the ordinance as a zoning regulation, the ordinance was invalid.  The court also vacated the fine imposed against the plaintiff. 
The decision provides a lesson regarding the judiciary’s stance on ordinances and general bylaws covering a subject matter that was previously regulated through a zoning measure(s).  In addition, when promulgating health based ordinances, towns should endeavor to rely upon solid, “hard data” based evidence in support of the ordinance that will stand up to judicial review.     

Grenier v. Board of Selectmen of Shrewsbury, Massachusetts Appeals Court
In a recent decision, the Appeals Court reversed a Superior Court decision that upheld a town’s denial of a permit to the plaintiff to sell used cars in Shrewsbury.  The court held that the town’s policy capping the number of used car dealerships at twenty (and allowing board discretion for applications beyond that figure) conflicted with a governing state statute that demanded a case by case review of each application.  In addition, the court invalidated the policy because it had no definable standards that would allow for a “fair and even-handed review of the applications.”  The decision reaffirms the core principle that municipal bylaws, guidelines and policies must be drafted with definable standards that will ensure that any municipal action taken consistent with such standards will be upheld by a reviewing court.  
The facts:  Shrewsbury adopted the policy at issue in 1999.  Known as Policy Number 9, it limited the number of used car dealerships in the town to twenty.  More importantly however, Policy Number 9 also granted the board unlimited discretion to grant licenses beyond that number.  The plaintiff applied for a license in 2007.  He sought to buy and sell used vehicles through auction sites over the internet.  The plaintiff would store three to five vehicles for sale in a garage owned by his father’s construction business.  That business was located in an industrial zoning district.  The police department, the treasurer’s office and the fire department approved of the site.  According to the decision, the board apparently denied the license on the grounds that the town would not benefit from the granting of the license.  The board, again according to the opinion, made its decision “without adequate findings and consideration of the particular facts underlying the application.” The Superior Court denied the plaintiff’s application for declaratory relief on the grounds the board’s decision was reasonable.   
In Massachusetts, G.L. c. 140 Section 59 deals with used car dealerships and specifically obligates town licensing boards to “determine the facts and to pass upon the application in each instance.”  Accordingly, the town’s use of the cap and simply denying such permits based on the cap conflicted with the statute’s mandate of a case by case review.  In addition, this individual case review must be based on definable standards.   The court found there were no definable standards set out in Policy Number 9 for review of the applications.  The court noted a licensing scheme cannot give a local board unfettered authority.  “The integrity of a licensing scheme depends upon standards that ensure fair and even handed review of application by the board, and a framework for judicial review of whether a particular decision is arbitrary or capricious, or based upon an error of law.”   The court found the board’s use of the policy was arbitrary and capricious and its decision denying the request was not based upon substantial evidence.  The court noted the plan was approved by several town departments and that none of the cars would be outside.   Reversing the Superior Court’s decision, the court declared the plaintiff was entitled to the used car dealership license.    

Suffolk Construction Company, Inc. v. Illinois Union Insurance Company, No. 10-P-1336

In a case of first impression, the Appeals Court has ruled that before a general contractor may demand a defense and indemnification as an additional insured, there must be an executed contract with the insured subcontractor that requires the subcontractor to name the general contractor as an additional insured.  The case arose from a personal injury matter involving an employee of a subcontractor.

The contractual setup (which takes longer to describe than the legal analysis) was as follows:  Suffolk, the general contractor for the Liberty Place project in Boston, had a subcontract with S & F Concrete.  The subcontract obligated S & F to require that its subcontractors have general liability insurance and name Suffolk as an additional insured.  S & F in turn subcontracted with Hallamore Corp. for the use of two cranes at the site.  The subcontract between S & F and Hallamore made no reference to additional insureds. 

Prior to the accident giving rise to this dispute, Hallamore’s insurance agent, ABC Ins. Group, forwarded a certificate of insurance that described Suffolk and S & F as additional insureds, but then had limiting language stating that the certificate did not amend the coverage afforded to Hallamore by its insurer, Illinois Union.  Significantly, Hallamore’s insurance policy issued by Illinois Union had a space for additional insureds to be named.  The space was blank.  The policy then stated, “As required by contract, provided the contract is executed prior to loss.”

In 2004, an employee of Hallamore, Edward McLaughlin, fell from a platform and suffered serious injuries.  He brought suit against Suffolk and S & F for negligently maintaining the worksite.  That suit settled.  Suffolk and S & F then brought this action to force Illinois Union to defend and indemnify them pursuant to their alleged status as additional insureds.  Specifically, the plaintiffs contended an oral agreement existed between them and Hallamore to have them named as additional insureds.  Their evidence consisted of correspondence from S & F to Hallamore requesting that they be named as additional insureds, the existence of a written purchase order between S & F and Hallamore and the ABC certificate of insurance.  The Superior Court found that no oral agreement existed and dismissed the plaintiffs’ complaint.

On appeal, S & F and Suffolk argue that the language in Illinois Union’s policy, “provided that the contract is executed prior to loss,” applies to oral agreements as well as to signed, written agreements.  The Appeals Court disagreed.  The Court concluded that the term “executed” means “signed.” The court also noted that most other jurisdictions have reached the same conclusion.  Lastly, the court cited as secondary support construction law treatises that stated additional insured provisions should be in writing.  Accordingly, because Hallamore and S & F did not execute a signed, written agreement that required Hallamore to name Suffolk and S & F as additional insured, Illinois Union was not required to defend or indemnify Suffolk and S & F against McLaughlin’s personal injury claims.

RYO Cigar Association, Inc. v. Boston Public Health Commission

Massachusetts Appeals Court

July 26, 2011

In a significant decision supporting the broad authority of all local boards of health in Massachusetts, the Appeals Court has held the Boston Public Health Commission has the authority to ban the sale of cigar wraps, a tobacco product, throughout the City of Boston.  The court found that the ban is rationally related to the legitimate purpose of protecting the public generally, and young people specifically, from the harmful effects of tobacco products.  (Along with Nakisha Skinner, our general counsel, I represented the Commission at the trial level and on appeal.)   

Factual background:  The Commission enacted the regulation on December 11, 2008, which became effective sixty days later.  The Commission issued the ban on the sale of cigar wraps after several board meetings and two public hearings.  The Commission banned the sale of cigar wraps on the grounds that tobacco is one of the leading causes of death in the country and that, specifically, cigar wraps were being marketed to young people who were at risk of becoming smokers.  The wraps come in many different flavors designed to appeal to young people, including wet mango, grape, blueberry, watermelon, and passion fruit.  Just before the regulation became effective in February of 2009, RYO sued the Commission in Suffolk Superior Court on the grounds the regulation was arbitrary, capricious and beyond the Commission’s authority.   After a two day bench trial in March of 2009, the Superior Court found the Commission did have the authority and dismissed RYO’s complaint.   

On appeal, RYO made three basic arguments: 1) the Superior Court judge erred as a matter of law by finding that the regulation was not arbitrary or capricious; 2) the regulation violated equal protection by discriminating against African-American males; and 3) the regulation conflicted with state and federal statutes that allegedly prohibited action by the Commission related to illegal controlled substances. 

Regarding the first argument, the Appeals Court noted the Massachusetts Supreme Judicial Court has previously recognized the “ill effects of tobacco use, particularly when it involves minors, as a legitimate municipal health concern justifying municipal regulation of tobacco products.”   Turning to the cigar wrap ban, the Appeals Court stated in pertinent part:

“The regulation challenged here fits comfortably within the zone delineated by prior tobacco regulations. Cigar wraps, the regulatory target, are tobacco products. The regulation's stated purpose is the protection of public health, particularly the health of Boston's young people, from the harmful effects of tobacco products. That purpose is well within the commission's area of responsibility. Particularly in light of the judge's finding that underage sales of cigars and cigar wraps in Massachusetts are double the rate of underage cigarette sales, and his finding that the marketing strategies employed by cigar wrap manufacturers specifically target young people, the ban is rationally related to a legitimate, health-related purpose.”

The key evidence at trial and appeal was the what Judge McHugh called at oral argument the “hard data” represented by the double violation rate of sales to minors for cigars and cigar wraps.    

Regarding RYO’s equal protection claims, the Appeals Court dismissed that argument quickly.  RYO argued that because Commission officials discussed that the cigar wrap manufacturers’ marketing campaign targeted young African-American males, the Commission somehow discriminated against all young African-American males in the city.  The Court simply held the Commission was reacting to RYO’s marketing campaign and not the other way around.  Moreover, RYO never presented any evidence that the regulation would have a disproportionate effect on African-American males.

Finally, RYO argued that both the state and federal government had previously legislated in the area of controlled substances, and because the Commission was allegedly defining cigar wraps as drug paraphernalia, that regulation conflicted with the state and federal statutes.  Where there is a sharp conflict between a local regulation and a state or federal statute, a court may enjoin the enactment of the local regulation.  The Appeals Court agreed with the Commission’s argument that there was no conflict.  Rather than find that the Commission defined cigar wraps as drug paraphernalia, the Appeals Court held the Commission only stated the product was sometimes “used as drug paraphernalia.”  Accordingly, the Commission’s regulation was not in conflict with the state and federal controlled substance acts.    

Commonwealth V. Cruz, Supreme Judicial Court

In a significant victory for the criminal defense bar, the SJC recently held that police officers may no longer order passengers out of a motor vehicle based upon the odor of burnt marijuana alone.  The court relied essentially upon the 2008 referendum in which the state voted to decriminalize the possession of less than one ounce of marijuana. 

The facts of the stop:  On June 24, 2009, Boston Police Officers Chris Morgan and Richard Diaz, patrolling in an unmarked cruiser and in plain clothes, noticed a vehicle parked in front of a hydrant in Hyde Square.  As the officers passed, Officer Diaz noticed the driver light a small, blunt type cigar, commonly used to mask the smell of marijuana.   The defendant, Benjamin Cruz, was in the front passenger seat.  Officer Morgan testified he knew Cruz, but Cruz was not known as a dangerous individual nor was he involved, to the officers’ knowledge, in any gang related activity.   

The officers stepped out of their cruiser and approached the parked vehicle.  Officer Morgan, approaching the driver’s side, testified to a faint odor of marijuana.   The officers both testified the driver and passenger appeared nervous, and the driver stated that he had smoked marijuana earlier that day.  There were no weapons or other contraband visible in the car.  The officers then called for backup and ordered both occupants out of the vehicle.  There were no Miranda warnings given.  A four gram rock of crack cocaine was located during a search of the passenger and defendant in this case, Cruz.  He was charged with possession with the intent to distribute. 

At the district court, the judge upheld the defendant’s motion to suppress on the ground the officers could not have feared for their safety during the stop.  Moreover, the passage of G.L. c. 94C Sec 32L decriminalizing small amounts of marijuana, the odor of burnt marijuana alone, together with the statement that the driver had smoked earlier, made it likely the driver had less than one ounce of marijuana on his person at the time.  Thus, according to the district court, there was no criminal activity ongoing. 

The SJC’s ruling.  First, the court found the officers made a valid stop of the vehicle because it was parked in front of the hydrant.  However, such traffic stops shall “last no longer than reasonably necessary to effectuate the purpose of the stop.”  Regarding the order to exit, there are three situations where officers may validly order occupants from a vehicle.  1) An exit order is proper if the safety of the officers is jeopardized; 2) if the officers had reasonable suspicion that a passenger was engaged in criminal activity; 3) to engage in a warrantless search of the vehicle under the automobile exception to the warrant requirement. 

The primary focus here is on scenario number two – whether the defendant was engaged in criminal activity.   The state argued the odor of marijuana, the high crime neighborhood, the defendant’s nervous demeanor and the use of a cigar supported the officers’ reasonable suspicion of criminal activity. 

The SJC discounted the other arguments and focused mainly on the faint odor of marijuana as grounds for the stop.  The court first noted there must be suspicion of “criminal” activity.  “Articulable facts, then, must demonstrate a suspicion that the defendant possessed more than one ounce of marijuana.”  The court concluded that there “could be no suspicion of a criminal offense.”  The 2008 referendum made possession of less than one ounce of marijuana a civil offense only.  The ballot informed voters the change in the law would “free up” officers to fight more serious crimes.   

The court found that not only the law changed, “but the status of this conduct changed as well.”  The court concluded that “the entire statutory scheme also implicates police conduct in the field. Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language of the statute.”  Without something more, the simple odor of marijuana is not grounds for reasonable suspicion of criminal activity.  The court did not address the scenario of when an officer detects the smell of marijuana from one possessing more than one ounce or how an officer can make that determination. 

Turning to the automobile exception, a warrantless search of a vehicle is permitted when police have probable cause to believe the vehicle contains contraband.  The SJC held in 2008 that the odor of burnt marijuana is sufficient to believe that contraband is in a vehicle and a search is permissible.   In Oregon, despite a similar recent decriminalization of small amounts of marijuana, that state’s highest court still upheld a warrantless search based on the odor alone.   

The SJC disagreed with that analysis.  As with above, “no facts were articulated to support probable cause to believe that a criminal amount of contraband was present in the car.”  Accordingly, the state could not avail itself of the automobile exception and the motion to suppress was properly allowed. 

Justice Cowin dissented.  Her main argument was that the 2008 referendum, while decriminalizing marijuana, had no effect on police officers’ conduct in the field regarding their investigations of criminal activity.  “The advent of decriminalization certainly has had no effect on the distinctiveness of marijuana’s odor…The odor of marijuana permits an officer reasonably to suspect that the parties involved are in possession of criminal quantities of marijuana.”   

Town of Boxford v. Massachusetts Highway Department

Supreme Judicial Court 

At the end of December, the SJC ruled that as a matter of law, state agencies are not immune from all municipal regulations.  However, as a factual matter, the doctrine of essential government functions may still bar the application of a municipal regulation against a state agency if the regulations are found to have more than a negligible effect on the state agency’s operations. 

The facts:  This is the “salt shed” case.  After it became apparent that the state’s operation of a salt shed in the Town of Boxford was contaminating private wells, the town demanded that the state relocate the salt shed.  In addition, the state’ highway department, in an effort to alleviate the problem, drilled many shallow wells at the residences where the private wells were located.  The highway department did not seek permits nor did it seek variances to dig the shallow wells, which were specifically prohibited under town regulations.  The town alleges the shallow wells themselves causes extensive environmental damage.  At one point during the dispute, the town physically blocked the entrance to the salt shed. 

The town brought this action alleging several counts, including a claim that the salt shed was a public health nuisance.  Another claim sought mandamus relief, requiring the state’s DEP to institute an enforcement action against the highway department.  The state moved to dismiss the nuisance claim on the grounds sovereign immunity barred such a claim. 

The court noted a state agency is “subject to local regulations to the extent that those regulations ‘do not interfere with its ability to fulfill its essential government purposes and have only a negligible effect on its operations.”  There was no dispute that the town adopted regulations relating to private wells pursuant to the general power to make reasonable health regulations.  The court also stated that Superior Courts are not limited to enjoining nuisances related solely to private residences. 

Turning the negligible effect analysis, the court stated that the analysis "requires consideration of the specific facts of the case." "Anything more than a negligible effect on a state agency's ability to perform an essential government function will cause the court to decide in the State agency's favor."  At the motion to dismiss stage, the town need only allege sufficient facts "to raise a right to relief above the speculative level."  Without more analysis, the court found that the town's complaint passed that test.  The court concluded the highway department is "potentially subject" to the town's regulations.  Separately, the court upheld the dismissal of the town's claim for mandamus relief against the DEP.  The court held that mandamus relief is not available when the requested action is discretionary.   The DEP's duties to initiate enforcement actions were clearly discretionary.

Morrissey v. New England Deaconess Association-Abundant Life Comm., Inc.  

Supreme Judicial Court
In an anticipated but significant decision, the SJC has decided that private nuisance claims against public employers are covered by Ch. 258.  Such claims must now comply with Chapter 258's presentment requirements, and are also subject to the exceptions to the waiver of immunity contained in Section 10 of Chapter 258.  The facts:  Morrissey is a trustee for a trust that owned six acres of land near Route 2 in Lincoln.  New England Deaconess owned abutting property.  It planned on building a senior living community and wanted to widen Route 2 to allow for an extra lane for vehicles entering and exiting the Deaconess property.  The state granted Deaconess a permit to carry out such work.  The plan was for Deaoness not to encroah at all onto the Trust's property.  However, the trust complained that a portion of the riprap on an embankment encroached into the trust property.  Also, a portion of trust property had collapsed near the construction of the new lane, and there allegedly was a construction fence on trust property.  The trust eventually filed this lawsuit, bringing, among seven other counts, a claim for private nuisance against the state and the contractor.  The Superior Court denied the state's motion to dismiss on the grounds that it had been well established that municipalities were not immune from private nuisance claims prior to the enactment of Chapter 258. 
The SJC found that the enabling legislation of Chapter 258 expressed a clear intent to abolish the entire common law doctrine of governmental immunity and establish a complete and comprehensive statuory scheme for the handling of tort actions against public employers.  The court noted that Chapter 258's language includes all "negligent" and "wrongful" acts of public employees.  Because the Legislature has commanded that courts should construe Chapter 258 liberally, the court easily found that the term "wrongful act" would include a private nuisance claim.  The court also noted in a footnote that Morrissey's complaint did not include any type of claim or even an allegation that the private nuisance claim amounted to a constitional taking.      

The court then applied the statutory exceptions in Section 10.  First, the gravamen of Morrissey's private nuisance claim was based on the state's granting of a permit to the Deaconess to perform the work.  Section 10(e) provides immunity for "any claim based on the issuance, denial, suspension, or revocation or failure o refusal to issue, deny, suspend or revoke any permit."  Because the actions that allegedly lead to the private nuisance claim were the result of the state's issuance of a permit, Section 10(e) bars the private nuisance claim against the state.
In addition, the issuance of the permit in this case qualified as a discretionary function under Section 10(b).  Section 10(b) bars claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function."  The conduct at issue must involve policy making or planning for the exception to apply.  Conduct that involves the implementation and execution of such planning is not immune from suit.  Here, the state's decision to grant the permit was discretionary because it was based on policy and planning considerations regarding improvements to Route 2.   

Harrison v. Town of Mattapoisett, Massachusetts Appeals Court

The Appeals Court recently held that local police officers engaged in a high speed pursuit would not be immune from suit pursuant to G.L. c. 258 Section 10(j), even where the officers ended the pursuit when the object of the pursuit exited a highway into a residential area. 

The facts:  At 10:40 AM on April 4, 2002, an officer from Acushnet observed William Lessa operating a motor vehicle.  Lessa had seven outstanding warrants against him.  After a Mattapoisett officer activated his lights to pull over Lessa, Lessa accelarated and the pursuit began.  After almost striking a police officer at a detail, Lessa entered Route 195 westbound with two Mattapoisett cruisers pursuing him. Another cruiser from Fairhaven also joined the chase, but that officer remained at the rearguard, under orders from his supervisor not to lead the chase.  During the chase, Lessa's vehicle reached 100 miles per hour, often causing other vehicles to swerve out of his way.  One of the police officers testified at his deposition there was "alot of traffic" at the time of the chase.  Lessa changed direction twice on Route 195 by driving over the median strip.  Lessa then exited Route 195 to Route 18.  At that point, the Mattapoisett supervisor ordered the officers to terminate the pursuit.  Lessa then exited off of Route 18 and collided with the plaintiff Harrison's vehicle, injuring her. 

The trial court allowed the summary judgment motions of the towns on the grounds the officers were the not the original cause of the accident.  Harrison appealed.

The Appeals Court reversed the trial court's granting of summary judgment to Mattapoisett and Fairhaven.  (The court affirmed the granting of summary judgment to Acushnet and the State Police on the grounds those entities did not actually participate in the chase.)  Section 10(j), a codification of the public duty rule, states the commonwealth "shall be immune from any claim based on an act or failure to act to prevent or diminish the harmful consequences or a condition...including the violent or tortious conduct of a third person, which is not originally caused by the public employer."  In order for the act to be an original cause, the act must materially contribute to the creation of the specific condition that results in harm to the plaintiff.  If the acts of the officers in a high speed chase materially contribute to the condition or situation resulting in harm to the plaintiff, Section 10(j) immunity will not apply.

Here, the court highlighted Lessa's near miss of a police officer on detail, his 100 miles per hour speed on the highway, multiple crossings of the median, and the amount of traffic on the road.  Based upon those facts, the court held the officers materially contributed to the creation of the conditions that lead to the accident resulting in harm to the plaintiff.  The fact the officers terminated the pursuit is irrelevant, because that occurred just moments before the accident.  The court then went on to find that the existence of genuine issues of fact regarding causation also precluded a granting of summary judgment to the towns.    

The court made additional significant comments.  First, the court noted Lessa was not engaged in criminal activity at the time the pursuit began.  Also, the officers knew his identity and where they could find him.  The court also commented that most towns, including Mattapoisett, have policies for such pursuits that seek to avoid these accidents.  The court stated that while apprehending those properly suspected of criminal activity is important, "high speed pursuits are extremely dangerous."