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Where a lawsuit was brought after a fatal fight at a concert in Quincy, the claims against the defendant Quincy police chief should have been dismissed because the allegations do not plausibly suggest that the chief acted outside the scope of his office, but there was no error in denying a motion to dismiss filed by a codefendant officer assigned to work a police detail at the concert.
Affirmed in part and reversed in part.
“This interlocutory appeal concerns the standard for pleading negligence claims against public employees for alleged conduct committed outside the scope of their office or employment. Following a man’s tragic death at a private establishment in Quincy (city), his estate, wife, and children sued the city’s police chief and a police officer who was assigned to work there on a police detail. After these defendants moved to dismiss under Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974), a Superior Court judge dismissed the claims against them in their official capacity, but denied the motion as to the claims against them in their individual capacity because the Massachusetts Tort Claims Act (MTCA) does not immunize public employees from liability for conduct outside ‘the scope of [their] office or employment.’ G.L.c. 258, §2. After examining whether the allegations in the complaint plausibly suggest that they acted outside the scope of their office or employment, we affirm the denial of the motion as to the officer but conclude that all claims against the chief of police should be dismissed. …
“… The lead plaintiff is the personal representative of the estate of Christopher W. McCallum, who was killed in a fight at the Robert I. Nickerson Post No. 382, Inc. (Nickerson Post), in the city after attending a concert there on January 26, 2019. The defendant Paul Keenan was the chief of the city’s police department, and the defendant Christopher Bulger was an officer in that department.
“The Nickerson Post invited and sold concert tickets to the general public. It also hired a ‘Quincy police detail’ to ensure safety and security. Bulger was the police officer assigned to work the detail on January 26. …
“Here, the allegations do not plausibly suggest that Keenan acted outside the scope of his office. All of his alleged conduct was ‘in furtherance of’ his duties as chief of police. …
“As for Bulger, at least at the pleading stage this case is controlled in material respects by Davis v. DelRosso, 371 Mass. 768, 770-772 (1977). …
“Applying Davis, and drawing all reasonable inferences in the plaintiffs’ favor, we conclude that the allegations support a plausible inference that Bulger’s allegedly tortious conduct occurred outside ‘the scope of his office or employment.’ G.L.c. 258, §2. …
“Although the plaintiffs, under Massachusetts precedent, may proceed with their claims against Bulger at this stage of the proceedings, our holding does not imply any view as to how this issue will ultimately be resolved. … Rather, we expect that the scope of Bulger’s employment will continue to be a critical issue as the plaintiffs litigate their claims against him. Among the facts that may bear on this issue are who hired or assigned Bulger to work as a detail; what communications took place among Bulger, the city or police department, and the Nickerson Post about his role; who paid him and how; who directed, controlled, and supervised his activities at the Nickerson Post; whether Bulger wore a police uniform; what role the city or police department has in authorizing details at private establishments; and what official rules, policies, or procedures apply to detail work. … We further note that while sometimes the scope of a defendant’s office or employment can present an issue for the jury, see, e.g., Davis, supra at 772, in other cases the issue can be appropriately decided at summary judgment. … In general, because the issue determines whether a defendant will receive the immunity generally afforded to public employees under G.L.c. 258, §2, it should be decided at the earliest possible stage of litigation. …
“The portion of the order denying the motion to dismiss counts XXVIII, XXIX, XXX, XXXI, and XXXII against Keenan is reversed. The portion of the order denying the motion to dismiss the claims against Bulger in his individual capacity is affirmed.”
Doyle, et al. v. City of Quincy, et al. (Lawyers Weekly No. 11-091-24) (15 pages) (Toone, J.) A motion to dismiss was heard by Michael A. Cahillane, J., in Superior Court. David Hadas for the defendants; Hugh R. Curran (Danielle L. Nudelman-McGonigle also present) for the plaintiffs (Docket No. 23-P-574) (Oct. 3, 2024).
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