The plaintiffs Kris Whitney (Kris) and his father, Glen A. Whitney (Whitney), brought this action in the Superior Court for Worcester County to recover for personal injuries and consequential damages caused by the alleged negligence of the defendants. The defendants in the original action were the city of Worcester, the members of the city school committee, the city superintendent of schools, the principal and assistant principal of the Downing Street School in Worcester, two elementary teachers at the school,
By this case we are again confronted with the question of the continued viability of the existing governmental immunity doctrine in this Commonwealth. On previous occasions we have voiced our conclusion that the governmental immunity doctrine and the convoluted scheme of rules and exceptions which have developed over the years are unjust and indefensible as a matter of logic and sound public policy. However, on those occasions we further concluded that comprehensive legislative action was preferable to judicial abrogation followed by an attenuated process of defining the limits of governmental liability through case by case adjudication. Morash & Sons v. Commonwealth, 363 Mass. 612 (1973). See Caine v. Commonwealth,
Accordingly, we state our intention to abrogate the doctrine of municipal immunity in the first appropriate case decided by this court after the conclusion of the next (1978) session of the Legislature, provided that the Legislature at that time has not itself acted definitively as to the doctrine. Thereafter, when appropriate cases concerning State and county immunity are presented, it is our intention to take similar action to abrogate immunity.
While we believe that the four years which have elapsed since Morash have provided ample opportunity for legislative action, our forbearance at this time is guided by the practical consequences of the overlapping legislative and judicial powers in this area. Unlike many matters which are proper subjects for either judicial or legislative lawmaking, legislative action on the subject of sovereign immunity is almost sure to follow any action on our part, and the nature of the process is such that, barring any possible constitutional infirmities, the Legislature will have the final word.
As we noted in Morash, we have no doubt as to our power to abrogate the doctrine of governmental immunity. We also have no doubt that the time for change is long overdue. Massachusetts is one of only five remaining States which retain the common law immunity at both the State and local levels. Forty-five States have modified and at least partly eliminated the defense of immunity in tort actions against municipal corporations. All except thirteen States have abolished or limited the defense in suits against the State. Note, Governmental Tort Immunity in Massachusetts: The Present Need for Change and Prospects for the Future, 10 Suffolk U.L. Rev. 521, 523-524 (1976). See K.C. Davis, Administrative Law of the Seventies §§ 25.00-25.00-2 (1976). Should it become necessary for us to bring change by judicial action we will at that time embark on the task of restructuring our law of governmental tort liability to bring it into conformity with reason and sound public policy. Therefore, we think it a useful exercise for this court to state now the major principles which we intend to recognize if and when it becomes necessary for us so to restructure the common law.
As a preliminary matter, we stress that abrogation of governmental immunity need not necessarily mean that governmental entities would be liable for all harm which results from the conduct of their activities. As we stated in Morash, supra at 623, "[C]learly, there should be limits to governmental liability and exceptions to the rule of liability, based upon considerations of justice and public policy." See, e.g., Spencer v. General Hosp., 425 F.2d 479 (D.C. Cir.1969); Muskopf v. Corning Hosp. Dist., 55 Cal.2d 211 (1961); 3 K.C. Davis, Administrative Law § 25.11 (1958). We will discuss what we consider to be the appropriate limits of governmental liability later in this opinion.
In suggesting such limits of liability we have no wish to intrude on the prerogatives of the Legislature. Nevertheless, we are cognizant that the Legislature may wish to enact a comprehensive legislative scheme in place of
I. Municipality Liability.
1. Under the existing law of the Commonwealth, it is well established that a municipality is not liable for negligent or otherwise tortious acts in the conduct of its schools. See, e.g., Desmarais v. Wachusett Regional School Dist., 360 Mass. 591, 594 (1971); Molinari v. Boston, 333 Mass. 394, 395-396 (1955); Reitano v. Haverhill, 309 Mass. 118, 122 (1941); Warburton v. Quincy, 309 Mass. 111, 117 (1941); Sweeney v. Boston, 309 Mass. 106, 109-110 (1941); Hill v. Boston, 122 Mass. 344 (1877). This rule is a subset of a broader rule of immunity which insulates a municipality from liability for injury resulting from "negligent acts of its officers or employees in the performance of strictly public functions imposed or permitted by the Legislature from which no special corporate advantage, pecuniary profit or enforced contribution from individuals particularly benefited, results," Orlando v. Brockton, 295 Mass. 205, 207-208 (1936); Bolster v. Lawrence, 225 Mass. 387, 389 (1917), but which subjects a municipality to liability for the acts of its agents or employees "in the conduct of functions voluntarily undertaken for its own profit and commercial in character, or to protect its corporate interests in its own way."
This rule itself is a curious amalgam of two initially separate doctrinal threads which were based on a distinction between municipal or "public" officers and municipal agents or employees. Municipalities have long been held immune from liability for the acts of public officers on the theory that such officers performed public duties imposed
While the basic rules have been buffeted about through the years, one basic principle of immunity emerges: "The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability; if it is not, there may be liability." Bolster v. Lawrence, 225 Mass. 387, 390 (1917). The essential distinction in the law of the
2. Such rigid classifications of municipal activities and municipal personnel have served only to obscure the issue of whether a particular plaintiff should recover from a governmental entity for his injuries and to prevent the systematic and straightforward development of a rational scheme of governmental liability that is consistent with accepted tort principles and the reasonable expectations of the citizenry with respect to its government. A person who has been run over by a municipal truck can hardly be expected to appreciate the fine nicety of the distinction between the various functions in which the truck driver may have been engaged.
Unfortunately, however, fairness to the injured individual cannot be the sole controlling factor in this context. Desirable as it might be to structure a system of costbenefit distribution in which no tortious injuries would
When there are specific allegations of tortious conduct
3. The governmental immunity which attached to governmental functions and acts of public officers reflected two underlying premises: one, that public officers were in fact employed by the public at large rather than by the governmental entity, that public functions were performed for the benefit of the public and not of the municipal government itself, and that there was no way to exact compensation from the disembodied "public"; and, two, that
We think that the appropriate dividing line falls between those functions which rest on the exercise of judgment and discretion and represent planning and policymaking and those functions which involve the implementation and execution of such governmental policy or planning. The appropriateness of such a dividing line has been widely recognized. The Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1970), contains an express exception to governmental liability for "[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government...." Id. § 2680 (a). See, e.g., Spencer v. General Hosp., 425 F.2d 479 (D.C. Cir.1969); 3 K.C. Davis, Administrative Law § 25.13 (1958). Such a distinction is not unknown in our own law of governmental tort liability. For example, a governmental entity is not liable for negligence in the planning of sewers but may be liable for negligence in their construction and maintenance. See, e.g., Lobster Pot of Lowell, Inc. v. Lowell, 333 Mass. 31, 33 (1955), and cases cited therein.
Legislatures in at least eighteen States have adopted a similar discretionary function exception. See Alaska Stat.
Under the formulation which we set forth in this case, we shift our focus from the nature of the governmental enterprise as a whole and the capacity in which the officer/agent was acting to the specific act or omission complained of as tortious. When the particular conduct which caused the injury is one characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning, governmental entities should remain immune from liability. "To inquire into such decisions in a tort suit might `jeopardiz[e] the quality and efficiency of government itself,' and endanger the creative exercise of political discretion and judgment through `the inhibiting influence of potential legal liability asserted with the advantage of hindsight.'" Spencer v. General Hosp., 425 F.2d 479, 488 (D.C. Cir.1969) (Wright, J., concurring), quoting from Elgin v. District of Columbia, 337 F.2d 152, 154-155 (D.C. Cir.1964). On the other hand, when the particular conduct claimed to be tortious involves rather the carrying out of previously established policies or plans, such acts should be governed by the established standards of tort liability applicable to private individuals or entities and the governmental entity in question held liable for the
We are cognizant of the irony inherent in substituting a new distinction for the old ones after our repeated criticism of the distinction drawing process in this context. However, we are confident that future case by case refinements of the general rule which would be necessary to define the specific parameters of governmental liability would evolve a fair and rational balance of the competing interests at stake.
Recognizing as we do that the general rule we would adopt is hardly a model of precision and predictability, we will attempt here to sketch in some of the larger interstitial gaps. The line to be drawn cannot merely be one between functions which involve discretion and judgment and those which do not, for the performance of all functions involves the exercise of discretion and judgment to some degree.
In examining particular acts or omissions in particular cases to determine whether liability will or will not attach, the following inquiries are relevant: Was the injury-producing conduct an integral part of governmental policymaking or planning? Might the imposition of tort liability jeopardize the quality and efficiency of the governmental process? Could a judge or jury review the conduct in question without usurping the power and responsibility of the legislative or executive branches? Is there an alternate remedy available to the injured individual other than an action for damages? These considerations, in a particular case, indicate whether governmental immunity should attach. Where such considerations are not determinative, governmental liability should be the general rule. Other relevant considerations are the reasonable expectations of
II. Personal Liability of Public Officers.
In many cases the classification of a tortfeasor as a public officer at present cloaks him, and consequently the city, with immunity from liability for his actions. "[P]ublic officers engaged wholly in the performance of public duties are liable only for their own acts of misfeasance in connection with ministerial matters." Fulgoni v. Johnston, 302 Mass. 421, 423 (1939). "[N]egligence which amounts to nothing more than an omission or nonfeasance creates no liability.... [N]onfeasance is the omission of an act which a person ought to do, misfeasance is the improper doing of an act which a person might lawfully do." Trum v. Paxton, 329 Mass. 434, 438 (1952). With respect to nonministerial matters, "if a public officer ... is either authorized or required, in the exercise of his judgment and discretion, to make a decision and to perform acts in the making of that decision, and the decision and acts are within the scope of his duty, authority and jurisdiction, he is not liable for negligence or other error in the making of that decision, at the suit of a private individual claiming to have been damaged thereby. This rule is presently limited to public officers acting in good faith, without malice and without corruption" (footnote omitted). Gildea v. Ellershaw, 363 Mass. 800, 820 (1973).
It can be argued that there are sound and rational reasons of public policy which support the retention of the misfeasance-nonfeasance distinction. Public officers generally exercise a broad range of discretion and judgment, and elements of that discretion and judgment are inextricably implicated even in functions which would be classified as ministerial. Subjecting public officers to personal liability only when they have engaged in overt and actively tortious conduct in ministerial matters effectively places a ceiling on their personal exposure in the performance of
Nevertheless, in the past, the achievement of this purpose often resulted in unjust decisions in particular cases, because unless the tortious conduct alleged constituted misfeasance in a ministerial matter, neither the public officer nor the governmental entity would have been liable for the injury done. For that reason we would abandon the misfeasance-nonfeasance distinction as a relevant factor. Personal immunity of the public officer, indeed that of public servants, would be determined by the discretionary-ministerial criteria discussed supra. Continued assurance that public officers will perform their duties effectively, free of inordinate fear of personal liability, may be achieved by the municipalities' providing indemnity for employees, by insurance or otherwise, under statutes such as G.L.c. 40, § 5, or G.L.c. 41, §§ 100A, 100C, 100D.
The soundness of our intention is clear when the cases involving the misfeasance-nonfeasance analysis are examined. Decisions as to immunity should not be influenced by the finite distinctions drawn in these cases, distinctions which have no real connection with sound reasoning or policy. See, e.g., Desmarais v. Wachusett Regional School Dist., 360 Mass. 591 (1971); Trum v. Paxton, 329 Mass. 434 (1952); Fulgoni v. Johnston, 302 Mass. 421 (1939); Moynihan v. Todd, 188 Mass. 301 (1905).
III. The Application of these Principles to the Case Now before Us.
We can perhaps best illustrate the principles discussed above through an examination of the allegations in the case now before us. The complaint in this case alleges that Kris Whitney, a six-year-old first grader at the Downing Street School in Worcester who was totally blind in his left eye and had limited vision in his right eye due
As to the personal liability of the individual defendants, all except the school custodian function as public officers. In summary, the complaint makes three claims of misfeasance on the part of public officers: one, that Kris's classroom teacher ordered him to leave the classroom and go to recess; two, that after the accident, his teacher and the assistant principal of the school ordered Kris to remain in the classroom; three, the school committee members and the superintendent of schools ordered Kris to attend the particular school at which he was injured. With respect to the first two allegations of misfeasance, the essence
The conduct raised in these two allegations is clearly ministerial. Under the new principles which we would establish, the officers (and consequently the city) would not be immune, although there was no misfeasance.
We think it inappropriate for courts to examine the soundness of such decision making in an action for damages. Aside from the obvious danger that subsequent events may cause a decision arguably reasonable at the time it was made to appear unwise in light of after-acquired data, there is no assurance that judges or juries, even if they could confine their scrutiny to the information which was available at the time the decision was made, are more competent to make a "right" choice than those charged with the responsibility for doing so. We think that the allegations of negligence on the part of the superintendent of schools and the school principal are governed by the same principles, as their conduct was dictated by the school committee plan. As to the acts of these defendants, there can be no personal or municipal liability based on the allegations contained in the complaint.
While there was widespread and justifiable reliance on the immunity doctrine prior to our decision in Morash & Sons v. Commonwealth, 363 Mass. 612 (1973), we think that subsequent to that opinion further reliance was misplaced. Accordingly, if the doctrine is to be changed by future action of this court, it is our intention to abrogate the principle as to all injuries which occurred since the publication of Morash on May 14, 1973.
We think that sufficient evolution has occurred in the law of governmental liability, in the imposition of liability in previous cases, in the warnings we have given regarding our intent to abolish the doctrine of governmental liability, and in the voluntary assumption of liability under enabling statutes, that we need not confine the rules forecast in this case to solely prospective operation.
The fiscal consequences of retroactivity are potentially immense, as such a ruling would expose governmental entities to liability in tort for all causes of action on which the statute of limitations had not yet run.
The case is remanded to the Superior Court. The order previously entered in that court, dismissing the action as to some defendants, is to be vacated. Trial of the case, if any party so moves, shall be continued at least until definitive legislation as to governmental immunity is enacted, or until the January, 1978, legislative session ends without the enactment of such legislation. Similar cases involving other litigants, including cases asserting liability against the Commonwealth or any political subdivision of the Commonwealth, shall be entitled to similar treatment, on motion of any party. Interlocutory proceedings not inconsistent with this opinion may be pursued during the interim period.