Liability For Student Attacks: The Brum v. Town Of Dartmouth Decision

On April 12, 1993, Jason Robinson was killed by a single stab wound to the abdomen while attending a social studies class at Dartmouth High School. He was 16 years old at the time. His assailants were three youths also 15 or 16 years of age. Two of them were fellow students. The third was not.

Jason's mother subsequently brought suit against the Town of Dartmouth, the Board of Selectmen, the School Committee, the Superintendent and the High School Principal for the death of her son. She sought recovery under three theories: (1) negligence under M.G.L. c.258 (the Massachusetts Tort Claims Act); (2) 42 U.S.C. §1983; and (3) M.G.L. c.12, §§11H & 11I (the Massachusetts Civil Rights Act or "MCRA.") The defendants moved to dismiss the complaint on the grounds that they were immune from liability under Chapter 258, they did not owe Jason Robinson a constitutional or statutory duty to protect him from third parties cognizable under Section 1983, nor did they use threats, intimidation or coercion to deprive Jason, or to attempt to deprive Jason, of a constitutional or statutorily-protected right. The Superior Court (Judge Xifaras) allowed the defendant's motion.

With respect to the plaintiff's negligence claims, Judge Xifaras held such claims were barred by Section 10(b) of Chapter 258 (the "discretionary function" exception) and by Section 10(j) (the statutory "public duty" rule which protects a public employer from liability for any claim based on the failure to protect a claimant from the violent or tortious conduct of a third person.) With respect to plaintiff's civil rights claims, the Judge held that compulsory school attendance did not create a "special relationship" between the student and the school sufficient to avoid application of the "no duty" rule of DeShaney v. Winnebago County Dep t of Social Servs., 489 U.S. 189 (1989). Nor did the school affirmatively place Jason in a position of danger. Therefore, no constitutional remedy was available. And, even if it was, the defendants did not use threats, intimidation or coercion to deprive or attempt to deprive Jason of his civil rights; hence, no recovery could be allowed under MCRA. The plaintiff appealed to the Massachusetts Appeals Court. There, she obtained partial relief. In a split decision, the Appeals Court affirmed the Superior Court's decision to dismiss plaintiff's federal and state civil rights claims. The Town and school officials had no constitutional obligation to protect Jason Robinson from his assailants, even while he was attending class. Moreover, plaintiff's complaint failed to allege the requisite threats, intimidation or coercion to support a claim under MCRA. Brum v. Town of Dartmouth, 44 Mass. App. Ct. 318, 327 (1998). The Appeals Court reversed, however, the dismissal of plaintiff's claim against the Town under Chapter 258. Although a municipality has considerable discretion with respect to the type or level of security it chooses to provide in its schools, it does not have the discretion to provide no security whatsoever. Plaintiff alleged in her complaint that Dartmouth High School "essentially had no security policy, procedure or safeguards" to protect students from violence, even though it knew or should have known of the "clear threat of serious violence" to which all students were exposed. In support of this position, the Appeals Court cited M.G.L. c.71, §37H which provides in part that the superintendent of every school district shall publish policies pertaining to the conduct of teachers and students and that such policies shall include "standards and procedures to assure school building security and safety of students and school personnel." Id., 44 Mass. App. Ct. at 324. Accordingly, the "discretionary function" exception set forth in Section 10(b) did not protect the Town from liability.

The Appeals Court also rejected the Town's reliance on Section 10(j). This provision states that a public employer may not be held liable for:

[A]ny 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 . . .

In holding Section 10(j) inapplicable to the plaintiff's claim that school officials negligently failed to protect her son from murder, the Appeals Court contorted the language of the statute in such a way as to supplant the knife-wielding assailant with the Principal, Vice Principal and teachers of Dartmouth High School as the real cause of Jason's death.

Their alleged mismanagement of the high school security system by failing to adopt or implement any security measures created, i.e., originally caused, a condition or situation of total insecurity against interlopers at the school, the foreseeable harmful consequences of which -- namely, the invasion and fatal attack on Robinson by the returning trio of violent students -- the principal and other school officials wholly failed to prevent or diminish.

Id., 44 Mass. App. Ct. at 325-26. Thus, because the death of Jason Robinson was "originally caused" by school officials within the meaning of Section 10(j), the defendant's motion to dismiss plaintiff's complaint on this ground should not, according to the Appeals Court, have been allowed.

Judge Kass wrote a stinging dissent in which he pointed out the nullifying effect the majority decision would have on Section 10(j). It was within the legislature's power, he wrote, to determine to what degree, if any, the public ought to compensate persons for injuries and damages (including murder) inflicted by third parties. In his view, the majority's decision was nothing more than an attempt to "outflank" the legislature and to impose the Court's own view on the law of municipal liability.

No school official stabbed Robinson to death. It requires convoluted reasoning to say, as does the majority, that the school authorities originally caused the violent act of [the three assailants.] The school authorities might have prevented the killing but failing to prevent, under the statute, is in the excluded category.

Id., 44 Mass. App. Ct. at 329.

The Town of Dartmouth applied to the Supreme Judicial Court for further appellate review pursuant to Mass. R. App. P. 27.1. The SJC granted the defendant's application. Oral argument was heard on November 6, 1998, and on January 21, 1999, the SJC reversed the Appeals Court decision. Brum v. Town of Dartmouth, 428 Mass. 684 (1999).

The Appeals Court, ruled the SJC, was correct in rejecting the Town's reliance on Section 10(b). Massachusetts law clearly mandates the adoption of some security measures and, therefore, the school's alleged failure to do so was not a protected "discretionary function." Id., 428 Mass. at 690-9 1. However, the Appeals Court misinterpreted the scope of Section 10(j). Recognizing that the provision presents an "interpretive quagmire," the SJC concluded, nonetheless, that the principal purpose of Section 10(j) is "to preclude liability for failures to prevent or diminish harm, including harm brought about by the wrongful act of a third party." Id., 428 Mass. at 696. To construe the provision as the Appeals Court did would undermine that principal purpose. Thus the SJC reversed the Appeals Court decision and affirmed the decision of the Superior Court.

Curiously, even though the application for further appellate review was submitted only on behalf of the Town, and even though the plaintiff had not appealed the Appeals Court's decision with respect to her civil rights claims, the SJC went on to address the validity of plaintiff's rights of action under Section 1983 and MCRA. On these claims, the Appeals Court was correct. Jason Robinson was not in a custodial relationship with the school so analogous to custody as to create a due process right entitled to constitutional protection. Nor did school officials create the danger to which Jason was exposed. Plaintiff's civil rights claims against the Town and school officials were, therefore, appropriately dismissed. Id., 428 Mass. 703-705.

Justice Ireland wrote a passionate concurrence in which he was joined by Justices Marshall and Abrams. Although he felt constrained by the words of Section 10(j) and the United States Supreme Court's ruling in DeShaney to concur with the majority decision, he nonetheless believed that the decision to protect the defendants from all liability was both "unfortunate" and "wrong."

[P]arents reasonably should be able to expect that the schools to which they entrust their children will take reasonable steps to protect their children from harm when, as here, the school officials are put on notice that the children are or may well be in jeopardy.

Id., 428 Mass. at 708. In a footnote, the majority echoed Justice Ireland's sentiments, stating it was in "complete sympathy" with the view that school officials should not escape all liability for failing to protect children under their supervision. The language of Section 10(j) nonetheless compelled this result. Id., 428 Mass. at 708 n.17. In conclusion, both the majority and the concurrence called upon the legislature to impose an enforceable obligation on schools to protect students in their custody against harm caused by third persons.

At least until the legislature responds to the SJC's call, the effects of the Brum decision will be substantial and far-reaching. Because Section 10(j) applies by its terms to any claim arising out of harm or injury caused to a student by a third person, it can arguably be invoked in a wide variety of situations involving classroom, ballfield or playground injuries. For example, just as a school cannot be held liable for a violent assault upon one of its students, it should likewise escape all liability for fights or brawls among students, for injuries sustained on a playground as a result of the negligent or intentional conduct of another, or for the student athlete injured as a result of physical contact on a ballfield. Arguably, all such claims arise out of a condition or situation not originally caused by the school, the harmful consequences of which school officials, by their act or omission, failed to prevent.

Perhaps the most lasting effect of the Brum decision will stem from the SJC's approval of the procedural path chosen by the defendants. Issues of immunity, stated the Court, should be resolved quickly and, if possible, before discovery. A motion to dismiss is the "preferred" mechanism for doing so. Id., 428 Mass. at 688. Additionally, denial of a motion to dismiss on immunity grounds is "immediately appealable." Id. Thus, cities and towns seeking to escape liability under Section 10(j) of Chapter 258, or under any other provision found in Section 10, should take heart. Their motions to dismiss will be entertained by the Superior Court and, if denied, may be immediately appealed without further proceedings to the Appeals Court as a matter of right.