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16-P-2 Appeals Court

RICHARD DUDLEY, JR. vs. MASSACHUSETTS STATE POLICE.

No. 16-P-2.

Bristol. December 1, 2016. - June 1, 2017.

Present: Cypher, Maldonado, & Blake, JJ.1

Massachusetts Tort Claims Act. Governmental 

Immunity. Dog. Police, Negligence. Negligence, 

Governmental immunity, Police. Practice, Civil, Summary 

judgment.

Civil action commenced in the Superior Court Department on 

February 1, 2013. 

The case was heard by William F. Sullivan, J., on a motion 

for summary judgment.

Jason R. Markle for the plaintiff.

Andrew W. Koster, Assistant Attorney General, for the

defendant.

MALDONADO, J. The plaintiff, Richard Dudley, Jr., 

commenced this negligence action, pursuant to the Massachusetts 

1 Justice Cypher participated in the deliberation of this 

case while an Associate Justice of this court, prior to her 

appointment as an Associate Justice of the Supreme Judicial 

Court.

 
2

Tort Claims Act (Act), G. L. c. 258, seeking damages from the 

defendant, Massachusetts State Police (State police), for 

injuries he suffered as a result of being attacked, in a public 

parking lot, by a trained police dog. Moments before the attack 

occurred, State Trooper Edward T. Blackwell, an experienced 

police canine handler, had been in pursuit of a criminal suspect 

who fled, on foot, taking a circuitous route through that 

parking lot. 

Dudley sued the State police, a public employer and agent 

of the Commonwealth,2 alleging that Trooper Blackwell's conduct, 

in releasing the police dog to apprehend a suspect in a public 

space, where the presence of others would be expected, created a 

foreseeable and substantial risk of harm to an innocent 

bystander. 

The State police answered the complaint, engaged in 

discovery, and then filed a motion for summary judgment, based 

on the ground of sovereign immunity under G. L. c. 258. 

Following a hearing, a judge of the Superior Court allowed the 

State police's motion, ruling that Dudley's negligence claim was 

barred by the immunity provisions of the Act, §§ 10(b) and (j). 

Dudley appeals from the separate and final judgment. See 

Mass.R.Civ.P.54(b), 365 Mass. 820 (1974). We reverse.

2 His claims against the criminal suspect (William P. 

Monopoli) and an automobile insurer are not at issue in this 

appeal.

 
3

1. Background. The chase. In the early afternoon of May 

6, 2011, William P. Monopoli led several State police troopers 

on a high-speed motor vehicle chase, which began in Boston and 

ended in West Bridgewater.

While speeding down the highway, Monopoli abruptly pulled 

his truck off the road onto an exit ramp. At the top of the 

ramp, Monopoli lost control of his truck, crossed the roadway's 

double yellow lines, and crashed into a guardrail or curb. He 

then exited his truck and quickly fled on foot, jumping over a 

fence into a park and ride commuter lot. Trooper Blackwell, who 

was following the suspect in a State police cruiser, pulled 

behind Monopoli's truck. 

The bite. Trooper Blackwell stepped outside of the 

cruiser, with his trained patrol dog, Jager,3 on a leash. 

Trooper Blackwell yelled to Monopoli and ordered him to give 

himself up, adding that, if he did not do so, the dog would be 

sent after him. Monopoli did not stop. He scaled over the 

fence into the commuter parking lot, out of the Trooper's 

immediate vision. Trooper Blackwell, knowing the lot was more 

than half full, commanded Jager to apprehend and he let go of 

the dog's leash, releasing him toward the parking lot. Jager 

hopped the fence, but in the midst of the parked cars, he, as 

did Blackwell, lost sight of Monopoli. 

3 A German shepherd weighing about eighty-two pounds.

 
4

Meanwhile, Dudley, while on his way home from work, was

dropping his coworker, Shiller, off at the commuter parking lot,

heard the crash of a car. The two men exited Dudley's truck. 

Dudley observed Monopoli as he zig-zagged through the parking 

lot toward a structure situated outside the lot. At about this 

same time, Trooper Blackwell came onto the scene. Pointing 

towards where Monopoli had fled, the two men yelled, "He went 

that way." Jager's attention focused on Dudley and Schiller. 

Trooper Blackwell, who had also lost sight of Jager, had now 

regained sight of him. Jager was about fifteen feet from Dudley

when he jumped up and bit Dudley in the stomach. Meanwhile, 

Trooper Blackwell yelled for Dudley to get inside the truck and 

lock the doors. Dudley tried to dive in the interior 

compartment of his truck headfirst. He made it halfway in but 

Jager clenched onto Dudley's leg and dragged him out of the 

vehicle. Trooper Blackwell commanded Jager to "release," and 

Jager complied.4

 Trooper Blackwell then took hold of Jager's 

leash and continued his pursuit of Monopoli. Other officers had 

arrived by then, and within a short time, they apprehended 

Monopoli outside the periphery of the parking lot. Trooper 

Blackwell returned to Dudley, who was taken to a local hospital 

4 The use of force by the State police is governed by 

written policies and procedures. A trooper and his State police 

dog operate as a team and, when given the order to apprehend a 

suspect, the dog will "bite and hold" the suspect.

 
5

by ambulance, where he was treated for his wounds. Dudley was 

discharged the same day.

2. Discussion. "In reviewing a grant of summary judgment, 

'we assess the record de novo and take the facts, together with 

all reasonable inferences to be drawn from them, in the light 

most favorable to the nonmoving party.'" Pugsley v. Police 

Dept. of Boston, 472 Mass. 367, 370-371 (2015), quoting 

from Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 318 

(2014). Here, we review the judge's grant of immunity under 

the Act, G. L. c. 258.

The Act provide[s] "a comprehensive and uniform regime of 

tort liability" for public employers." Morrissey v. New England 

Deaconess Assoc. -- Abundant Life Communities, Inc., 458 Mass. 

580, 588 (2010). See Greenwood v. Easton, 444 Mass. 467, 469-

471 (2005). As is pertinent in this case, the Act exempts a 

public employer from liability for "any claim based upon the 

exercise or performance or the failure to exercise or perform a 

discretionary function or duty on the part of a public employer 

or public employee, acting within the scope of his office of 

employment, whether or not the discretion involved is abused." 

G. L. c. 258, § 10(b). The parties agree that the State police

is a public employer entitled to the protections of the 

discretionary function exemption in § 10(b), which, if 

applicable in this case, would immunize it from liability.
6

In deciding whether § 10(b)'s discretionary function 

exemption precludes a plaintiff's tort claim, we first look to 

"whether the governmental actor had any discretion . . . to do 

or not to do what the plaintiff claims caused [the] 

harm." Greenwood, supra at 469, quoting from Harry Stoller & 

Co. v. Lowell, 412 Mass. 139, 141 (1992). 

"[I]f the governmental actor had no discretion because a 

course of action was prescribed by a statute, regulation, or 

established agency practice, [§ 10(b)'s] discretionary function 

exception to government liability has no role to play in . . . 

the case." Ibid. Here, Dudley cannot reasonably contest the 

State police's assertion that the use of the trained police 

canine, Jager, was not prescribed by a statute, regulation, or 

established agency practice. The State police's contention, at 

least with respect to the first prong of the Greenwood/Harry 

Stoller test, is aided by our opinion in Audette

v. Commonwealth, 63 Mass. App. Ct. 727 (2005), which held that 

State police canine handlers did have "discretion" as to the 

course of conduct to follow in the police canine's training and 

use in police operational activities. Id. at 731. As was true 

with a similar State police general order in Audette, the State 

police's general order for canine units (effective November 5, 

2008) gives discretion to its canine handlers for determining 

"whether a situation justifies canine use and the appropriate 
7

tactical measures that should be taken." We turn, then, to the 

second (and final) step in deciding whether § 10(b)'s 

discretionary function exemption applies. In this step we must 

determine "whether the discretion that the [governmental] actor 

had is that kind of discretion for which § 10(b) provides 

immunity from liability." Greenwood, supra at 470, quoting 

from Harry Stoller, supra at 141. The essential measure, under 

governing case precedent, is whether the governmental actor's 

conduct, i.e., Trooper Blackwell's act of releasing Jager to 

apprehend the suspect in a moderate to heavily occupied commuter 

parking lot, involved discretionary activity of the "planning or 

policy-making type" that is immunized under § 10(b), as opposed 

to particular conduct that involves the "implementation" of 

government policy, for which there is no immunity. Ibid. 

In our view, particularly at the summary judgment stage, we 

cannot say Trooper Blackwell's injury producing conduct of

commanding and releasing Jager to apprehend a criminal suspect 

involved the use of planning or policy making discretion. 

Rather, it was conduct that carried out or implemented the State 

police's general policy for police canine use in the field. 

Where, as here, the allegedly tortious conduct of the 

governmental actor concerns the "carrying out of previously 

established policies or plans, such acts should be governed by 

the established standards of tort liability applicable to 
8

private individuals or entities." Greenwood, supra at 471, 

quoting from Whitney v. Worcester, 373 Mass. 208, 218-219 

(1977).

We reject the State police's contention that Audette

controls the result in this case. In Audette, unlike the 

situation presented here, a trained State police canine was off 

leash during a motor vehicle search for contraband when he 

attacked the victim when the police handler neither ordered an 

attack nor an apprehension. See Audette, supra at 729. In our 

view, that is significantly different from the situation here, 

where a trained, experienced police canine handler ordered a 

police dog to apprehend another individual, that is to bite and 

hold a person, in a moderate to heavily occupied public parking 

lot. It is immaterial that Jager had never attacked anyone

without a command from his handler because, here, Jager was 

commanded to attack. He was ordered to apprehend, and that 

order contemplated Jager's hunting down, biting, and holding an 

individual, which is precisely what Jager did to Dudley.

The State police is not assisted by the governmental 

immunity provision set forth in § 10(j) either, because § 10(j) 

does not preclude suit where the governmental actor is an 

"original cause" in creating the harmful condition that resulted 

in injury to the plaintiff. Kent v. Commonwealth, 437 Mass. 

312, 318 (2002). See Serrell vs. Franklin County, 47 Mass. App. 
9

Ct. 400, 405-406 (1999), where § 10(j) did not bar recovery for 

the affirmative actions of correction officers, who, while 

intervening in a fight, struck and injured the plaintiff. The 

same is true here. Trooper Blackwell, while trying to capture a 

fleeing suspect, ordered and released Jager, in a moderate to 

heavily occupied parking lot, to attack a suspect and, in doing

so, the Trooper created the harmful condition that resulted in 

Dudley's injury. Accord Gennari v. Reading Pub. Sch., 77 Mass. 

App. Ct. 762, 764 (2010) (§ 10[j] did not provide immunity where 

school principal ordered recess in a concrete playground and, 

therefore, created the situation in which a child would be 

pushed and fall onto the concrete while playing tag). The 

judgment is vacated, and the case is remanded to the Superior 

Court for trial consistent with this opinion.

So ordered.