Today the Supreme Judicial Court ruled that the Massachusetts Tort Claims Act protects a school against claims that it failed to protect a fourth grader from bullying that resulted in his quadriplegia, because such liability of the schools for the acts of third parties only arises, per the MTCA statute, when the school has an affirmative obligation to act, which the court held the school did not in this instance.
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ALYSSA CORMIER & another1 vs. CITY OF LYNN & others.2
Essex. November 9, 2017. – February 27, 2018.
Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ.
Massachusetts Tort Claims Act. Governmental Immunity.
Municipal Corporations, Liability for tort, Governmental
immunity. School and School Committee, Liability for tort.
Negligence, Governmental immunity.
Civil action commenced in the Superior Court Department on March 2, 2011.
A motion to dismiss was heard by Robert N. Tochka, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Douglas K. Sheff (Sara W. Khan, Frank J. Federico, Jr., &
Donald R. Grady, Jr., also present) for the plaintiffs.
James P. Lamanna, Assistant City Solicitor (George S.
Markopoulos, Assistant City Solicitor, also present) for city of
1 James Mumbauer, individually and as parent and next friend
to Matthew Mumbauer.
2 Nancy Doherty, Debra Ruggiero, Linda J. Morgan, Lynn
Public Schools, North Shore Medical Center (NSMC), and Ethel Wu.
One defendant is a minor and will not be named.
Gary Buseck, Patience Crozier, & Joseph N. Schneiderman,
for GLBTQ Legal Advocates & Defenders, amicus curiae, submitted
BUDD, J. Bullying is a persistent, pernicious problem in
our schools — it can cause emotional and, at times, physical
harm. In this case, Matthew Mumbauer suffered both. Matthew
was a public elementary school student in Lynn when he was
pushed down a stairwell at school by a classmate. Matthew’s
fall led to a spinal injury, resulting in permanent paralysis.
He and his parents, Alyssa Cormier and James Mumbauer
(collectively, plaintiffs), brought claims against a number of
defendants in connection with the incident and Matthew’s
subsequent medical care. A Superior Court judge allowed a
motion to dismiss all claims against the city of Lynn, Lynn
Public Schools (school district), and their public employees
(collectively, public defendants).3 The Appeals Court affirmed
that decision in an unpublished memorandum and order issued
pursuant to its rule 1:28. Cormier v. Lynn, 91 Mass. App. Ct.
3 A Superior Court judge dismissed the plaintiffs’ complaint
against the defendants Morgan, Wu, and NSMC after the medical
malpractice tribunal found that there was not sufficient
evidence to raise a legitimate question as to liability
appropriate for judicial inquiry. A settlement agreement was
reached with the classmate who pushed Matthew; all claims
against him were dismissed with prejudice.
We allowed the plaintiffs’ motion for further appellate
review, limited to whether the Massachusetts Tort Claims Act
(act), G. L. c. 258, § 10 (j), bars the plaintiffs from bringing
claims against the public defendants in relation to this
incident. Thus, the issue that we must decide is not whether
the school was negligent for failing to act reasonably to
prevent the bullying that led to Matthew’s injuries; the
complaint alleges that it was, and for purposes of this appeal,
we accept that allegation as true. Rather, the issue on appeal
is whether, under the act, the public defendants may be held
liable for that negligence. We conclude that the act protects
them from liability for such negligence.4
Background. The facts of this case, drawn from the
complaint, are tragic. On March 10, 2008, then fourth grade
student Matthew Mumbauer was pushed down a stairwell by a
classmate while attending a public elementary school in Lynn.
The incident occurred while the students were lining up at the
beginning of the school day.
By late morning and throughout the afternoon, Matthew
complained to teachers and classmates of “tingling and numbness”
in his extremities. His symptoms were not reported to the
school nurse or any other medical professionals. By the end of
4 We acknowledge the amicus letter submitted by GLBTQ Legal
Advocates & Defenders.
the school day, Matthew reported feeling like his legs were
“dead weight” and he needed assistance to walk out of the
In the afternoon, Matthew’s parents brought him to North
Shore Medical Center (NSMC), where he was diagnosed with a
sprain in his right foot and given pain medication. He stayed
home from school the following day. On March 12, Matthew
returned to NSMC because he was unable to move his hands or
legs. Matthew was then transferred to Massachusetts General
Hospital in Boston, where he was diagnosed with an injury to his
spinal column and spinal cord, which resulted in the onset of
quadriplegia. He is permanently paralyzed and confined to a
The plaintiffs’ complaint alleges that, prior to being
pushed down the stairs in March, 2008, Matthew was subject to
constant bullying at school by a small group of students,
including the classmate who pushed Matthew. Matthew’s mother
had reported acts of harassment levied against him on multiple
occasions during the 2007-2008 school year to school officials.
Matthew had also complained to teachers and administrators at
the school numerous times about bullying and harassment. The
plaintiffs contend that the school did not enforce its own
Discussion. “We review the allowance of a motion to
dismiss de novo.” Curtis v. Herb Chambers I-95, Inc., 458 Mass.
674, 676 (2011). “For the purposes of that review, we accept as
true the facts alleged in the plaintiffs’ complaint and any
exhibits attached thereto, drawing all reasonable inferences in
the plaintiffs’ favor.” Revere v. Massachusetts Gaming Comm’n,
476 Mass. 591, 595 (2017).
1. Sovereign immunity and the act. For over a century,
“the Commonwealth c[ould] not be impleaded in its own courts,
except by its own consent” at common law. Troy & Greenfield
R.R. v. Commonwealth, 127 Mass. 43, 46, 50 (1879).5
Municipalities were also largely immune from liability in tort.6
See Bolster v. Lawrence, 225 Mass. 387, 388-390 (1917)
(summarizing circumstances in which municipalities were immune
5 After this court’s decision in Troy & Greenfield R.R. v.
Commonwealth, 127 Mass. 43 (1879), the Legislature passed St.
1887, c. 246, which authorized the Superior Court to hear
certain claims against the Commonwealth. This court construed
the statute to exclude jurisdiction over tort claims. See
R. Zoppo Co. v. Commonwealth, 353 Mass. 401, 404 (1967); Smith
v. Commonwealth, 347 Mass. 453, 456 (1964); Murdock Parlor Grate
Co. v. Commonwealth, 152 Mass. 28, 30-31 (1890). See also
Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 614-615
(1973) (discussing waiver of sovereign immunity implicit in St.
1887, c. 246, and its successor statute).
6 Prior to 1973, a municipality was not liable for tortious
acts in the conduct of its schools. See Desmarais v. Wachusett
Regional Sch. Dist., 360 Mass. 591, 593-594 (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, 380 (1877).
from liability in tort at common law); Mower v. Leicester, 9
Mass. 247, 249 (1812) (concluding that common law prohibits tort
actions that are not statutorily authorized for “neglect of
duties enjoined on them”). Public employees were always immune
from liability for negligent omissions, or “nonfeasance.” See
Desmarais v. Wachusett Regional Sch. Dist., 360 Mass. 591, 593
(1971); Trum v. Paxton, 329 Mass. 434, 438 (1952).
In Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 618-
619 (1973), and Whitney v. Worcester, 373 Mass. 208, 210 (1977),
we determined that the underlying basis for common-law sovereign
immunity for both the Commonwealth and municipalities was
“logically indefensible,” and stated our intention to abrogate
the doctrine of municipal immunity after the conclusion of the
1978 legislative session (providing the Legislature with an
opportunity to set forth sovereign immunity policy for the
Commonwealth and its political subdivisions through
legislation). We reasoned that the common-law rules of
sovereign immunity were incompatible with the fundamental
principle in tort “that if there is tortious injury there is
liability.” Morash & Sons, Inc., supra at 621. At the same
time, we acknowledged that public policy demanded some
reasonable limits to governmental liability in order for
taxpayers to avoid a potentially catastrophic financial burden.
See id. at 623 & n.6.
Shortly before the end of the 1978 legislative session, the
Legislature passed G. L. c. 258, the act,7 which allowed for
limited tort liability for the Commonwealth and its political
subdivisions. See St. 1978, c. 512. Section 2 of the act
provides that public employers are liable for negligent or
wrongful acts or omissions of public employees acting within
their scope of employment. See G. L. c. 258, § 2.8
2. G. L. c. 258, § 10 (j). Although the act statutorily
eliminates the immunity that governmental bodies would
ordinarily enjoy under common law, it sets forth several
exceptions to that general waiver of sovereign immunity. See
G. L. c. 258, § 10 (a)-(j).
7 This court and commentators refer to G. L. c. 258 as the
Massachusetts Tort Claims Act (act). See, e.g., Brum v.
Dartmouth, 428 Mass. 684, 686 (1999); Jean W. v. Commonwealth,
414 Mass. 496, 498 (1993); Dinsky v. Framingham, 386 Mass. 801,
802 (1982); Glannon, The Scope of Public Liability Under the
Tort Claims Act: Beyond the Public Duty Rule, 67 Mass. L. Rev.
159, 159 (1982). However, the act’s full title is “An Act
establishing a claims and indemnity procedure for the
commonwealth, its municipalities, counties and districts and the
officers and employees thereof.” St. 1978, c. 512.
8 General Laws c. 258, § 2, provides that governmental units
“shall be liable for injury or loss of property or personal
injury or death . . . in the same manner and to the same extent
as a private individual under like circumstances.” The language
is substantially the same as the Federal government’s waiver of
sovereign immunity. See 28 U.S.C. § 2674 (“The United States
shall be liable, respecting the provisions of this title
relating to tort claims, in the same manner and to the same
extent as a private individual under like circumstances . . .”).
Section 10 (j) 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.”9 G. L. c. 258, § 10 (j).
9 The Legislature carved out and permitted plaintiffs to
pursue some claims that would otherwise be covered by G. L.
c. 258, § 10 (j), by exempting certain claims from § 10 (j)’s
exemption from the act’s general waiver of sovereign immunity.
Pursuant to G. L. c. 258, § 10 (j) (1)-(4), the exemption shall
not apply to
“(1) any claim based on explicit and specific
assurances of safety or assistance, beyond general
representations that investigation or assistance will be or
has been undertaken, made to the direct victim or a member
of his family or household by a public employee, provided
that the injury resulted in part from reliance on those
assurances. A permit, certificate or report of findings of
an investigation or inspection shall not constitute such
assurances of safety or assistance; and
“(2) 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 he was in before the
“(3) any claim based on negligent maintenance of
public property; [and]
“(4) any claim by or on behalf of a patient for
negligent medical or other therapeutic treatment received
by the patient from a public employee.”
In other words,10 § 10 (j), which “was intended to provide
some substantial measure of immunity from tort liability” to
public employers, eliminates government liability for a public
employer’s act or failure to act to prevent harm from the
wrongful conduct of a third party unless the condition or
situation was “originally caused” by the public employer. Brum
v. Dartmouth, 428 Mass. 684, 692, 695 (1999).
To have “originally caused” a condition or situation for
the purposes of § 10 (j), the public employer must have taken an
affirmative action; a failure to act will not suffice.11 Id. at
695-696. In Brum, a public high school student was stabbed to
death in a classroom during the school day by one of three armed
individuals, after an earlier violent interaction involving the
assailants. Id. at 686. School officials had been informed
that the assailants, who had left the school grounds after the
altercation, planned to return and retaliate against certain
students, including the child who was ultimately killed. Id. at
686-687. The victim’s mother brought suit against the
municipality for its negligent failure to maintain adequate
10 “To say that § 10 (j) presents an interpretive quagmire
would be an understatement.” Brum, 428 Mass. at 692.
11 The question of original causation is separate from the
question of liability. Even when a court concludes that a
public employer has affirmatively acted so as to create original
causation such that it may be sued under the act, a plaintiff
still bears the burden of establishing the elements of whatever
tort claim he or she brings.
security measures at the school and failure to protect her son
despite being made aware of a known threat. Id. at 687. We
concluded that § 10 (j) precluded the municipality’s liability
for failure to prevent the killing absent an affirmative act by
a public employee in the operation of its schools. Id. at 696.
See Bonnie W. v. Commonwealth, 419 Mass. 122, 125-126 (1994)
(concluding that § 10 [j] barred claim based on negligent
failure to supervise parolee but permitted claim based on
negligently recommending his employment).
Furthermore, for the “original cause” language under
§ 10 (j) to apply, “the act must have materially contributed to
creating the specific ‘condition or situation’ that resulted in
the harm.” Kent v. Commonwealth, 437 Mass. 312, 319 (2002). In
Kent, we concluded that § 10 (j) required dismissal of a claim
against the parole board for its negligence in releasing a
convicted murderer who, eight years later, shot a police
officer. Id. at 313, 319-320. We concluded that the parole
board’s affirmative act did not materially contribute to the
police officer’s injuries. Id. at 319-320.
3. Application of § 10 (j) to plaintiffs’ tort claims.
The parties disagree as to whether the stated exception in
§ 10 (j) applies to the plaintiffs’ claims. The defendants
argue that the claims are precluded by § 10 (j) because
Matthew’s injuries were caused by the “violent or tortious
conduct of a third person.” The plaintiffs acknowledge that a
third party directly harmed Matthew, but argue that the school
district is not immune from liability because school employees
“originally caused” the dangerous situation that resulted in
Matthew’s injuries. See G. L. c. 258, § 10 (j). See also Brum,
428 Mass. at 692. Thus, we must determine whether the
plaintiffs allege that the school district employees took an
affirmative act that materially contributed to creating a
condition or situation that resulted in Matthew’s injuries. See
Kent, 437 Mass. at 319.
There can be little doubt that some actions by the public
defendants contributed indirectly to Matthew’s injuries, for
example, Matthew and his tormentors were required to attend
school and were placed in the same class. These actions,
however, “are too remote as a matter of law to be the original
cause” of Matthew’s injuries under § 10 (j) and therefore cannot
be said to have “materially contributed” to creating the
specific condition or situation resulting in Matthew’s injuries.
See Kent, 437 Mass. at 319.
In their complaint, the plaintiffs make numerous
allegations that the school district and its employees
negligently failed to protect Matthew or negligently failed to
diminish the harm caused by Matthew’s injuries.12 These claims
are barred by § 10 (j) because they originate from a failure to
act rather than an affirmative act. See Brum, 428 Mass. at 696.
In their brief, the plaintiffs highlight that the school’s
staff had a policy of having students line up in a particular
order outside school each morning before the start of the school
day without guidance or supervision. This, they argue, was an
affirmative act that resulted in Matthew and his classmate being
in close proximity and created the situation that led to
Matthew’s injuries.13 Putting aside the question whether this
12 The plaintiffs’ allegations include that the public
defendants were negligent for failing to investigate properly
the plaintiffs’ prior complaints of bullying and harassment of
Matthew and failing to implement the mandatory policies of the
school committee of Lynn designed to ensure a safe learning
environment. They further allege that the city of Lynn was
negligent in hiring, retaining, and supervising teachers and
liable for failing properly to instruct, train, and supervise
staff regarding the proper methods of implementing school
district antibullying policies.
13 The plaintiffs cite Gennari v. Reading Pub. Sch., 77
Mass. App. Ct. 762 (2010), to support their argument. There,
the Appeals Court held that a principal’s decision to hold
recess in a concrete courtyard was an “original cause” of the
situation leading to a student’s injury when a classmate pushed
the student and he struck his head on concrete. Id. at 765.
The court reasoned that “[r]unning, falling, and pushing are
understood, foreseeable, even inherent parts of . . . recess”
and therefore the causal link between the principal’s decision
and the injury was “not so remote as a matter of law” that her
decision was not an “original cause” within the meaning of
§ 10 (j). Id.
Gennari, which perhaps represents the outer limits of
conduct falling within the scope of what might be considered an
particular fact was adequately pleaded in the plaintiffs’
complaint,14 this allegation is, at bottom, another claim for
negligence based on an act that fails to prevent or diminish
harm by failing to keep Matthew and his bullies apart.
“[C]onditions that are, in effect, failures to prevent harm,
would undermine [the] principle purpose” of § 10 (j). Brum, 428
Mass. at 696. Effectively, the plaintiffs seek to hold the
school liable for not acting in a manner that ensured Matthew’s
safety. Such a claim is precluded under the act.
Conclusion. There is no question that bullying is a
serious issue. The tragedy that occurred in this case
highlights the emotional pain of day-to-day harassment suffered
“original cause” under § 10 (j), is readily distinguishable from
this case. In Gennari, the principal affirmatively chose to
hold recess in a concrete area rather than a safer alternative.
In contrast, as discussed infra, regardless of what the line-up
policy was, the claim here amounts to an alleged failure to act
to keep Matthew safe.
14 The complaint does not allege that Matthew had a
particular assigned spot in line. It simply states, “[W]hile
lining up at the beginning of the school day, Matthew Mumbauer
was violently shoved by [a classmate].” However, when Matthew
was deposed he stated that he was “assigned in the back.” See
Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 285 n.6 (2007)
(“The only facts appropriate for consideration in deciding a
motion to dismiss are . . . those drawn from factual allegations
contained with the complaint or within attached exhibits”).
by those who are bullied, as well as the horrific physical
consequences that can result.15
In this case it appears, based upon the allegations of the
complaint, that those working at the elementary school could
have and should have done more to protect Matthew.
Nevertheless, the fact remains that the Legislature has imposed
restrictions on the act that exempt school districts from
liability. See Whitney, 373 Mass. at 210 (“on the subject of
sovereign immunity . . . barring any possible constitutional
infirmities, the Legislature will have the final word”).
The order of the Superior Court judge allowing the motion
to dismiss is affirmed.
15 An antibullying statute was enacted in 2010 and amended
in 2014. G. L. c. 71, § 37O, inserted by St. 2010, c. 92, § 5,
and amended through St. 2014, c. 86, §§ 1-4. Although it was
not in effect in the time frame relevant to this case, the
schools of the Commonwealth are now statutorily required to
address bullying. The antibullying statute prohibits bullying
on school grounds and requires school districts to “develop,
adhere to and update a plan to address bullying prevention and
intervention.” G. L. c. 71, § 37O (d) (1). The Department of
Elementary and Secondary Education (department) has the power to
“investigate certain alleged incidents of bullying,” determine
whether a school district has “properly implemented its
prevention plan,” and require the school district to take
actions to address any relevant findings that the department
makes. G. L. c. 71, § 37O (n). It remains to be seen whether
the regulatory mechanisms of the antibullying statute provide
sufficient incentives for schools to develop and adhere to
adequate measures to protect students from these harms. See
G. L. c. 71, § 37O; Brum, 428 Mass. at 709 (Ireland, J.,