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SJC-12323

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 

Lynn.

 

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.
2

Gary Buseck, Patience Crozier, & Joseph N. Schneiderman, 

for GLBTQ Legal Advocates & Defenders, amicus curiae, submitted 

a brief.

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that decision in an unpublished memorandum and order issued 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. 

1101 (2017).

 

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.
3

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.
4

the school day, Matthew reported feeling like his legs were 

"dead weight" and he needed assistance to walk out of the 

school.

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 

wheelchair.

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 

antibullying policies.
5

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).
6

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.
7

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 . . .").
8

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 

intervention; and

"(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."
9

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.
10

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 
11

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 
12

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 
13

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").
14

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.

So ordered.

 

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., 

concurring).