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S.J.C. Decides Whether School is Liable for Failing to Protect Student From BullyingPosted March 09, 2018
By Jonathan A. Karon
Earlier this week, I was quoted in the Boston Herald regarding a tragic case where a fourth grader became paralyzed when he was pushed down a flight of stairs by a bully at his school. http://www.bostonherald.com/news/local_coverage/2018/03/bullying_victim_aims_to_help_with_law_fix_video The Massachusetts Supreme Judicial Court concluded that even assuming that “those working at the elementary school could have and should have done more to protect” the child, that a Massachusetts law known as the State Tort Claims Act protected the school system against the parent’s suit. This was true, even though the legislature passed an antibullying statute, Mass. Gen. Laws Ch. 71 Section 370 that requires school districts to “develop, adhere to and update a plan to address bullying prevention and intervention.” The decision, issued at the end of February was in the case of Cormier v. City of Lynn (SJC docket number SJC-12323)
The boy, Matthew Mumbauer, is now twenty one and confined to a wheelchair. According to the Herald, he had been subjected to constant bullying from a group of students which included the boy who pushed him down the stairs. He and his mother reported the bullying several times to teachers and administrators and they alleged that the school did not enforce its own antibullying policies. The family’s lawsuit was originally filed in the Superior Court, where a judge dismissed it based on the State Tort Claims Act. The Massachusetts Appeals Court affirmed the dismissal and the Supreme Judicial Court agreed.
The Court’s decision makes sense based on the statutory language, but it begs the question of whether the law should be changed. Mass. Gen. Laws Ch. 258 is commonly known as the “Massachusetts State Tort Claims Act.” At common law, which we inherited from England, the sovereign (i.e. the King) was absolutely immune from being sued. Similarly, in the absence of a statute allowing suits to be filed against state and local governments, they were also immune from suit. In 1978, the legislature passed Chapter 258 which provided that state and local governments could be liable for torts committed by their employees acting within the scope of their employment. It capped the potential damages available at $100,000 and created several exceptions. One of the exceptions is that state and local governments are not liable for failure to prevent the harmful acts of third persons unless the government entity “originally caused” the harm. If you’re confused, this section is confusing. The Court’s opinion discusses at length the question of whether the school’s failure to protect Matthew “originally caused” the condition that led to his injury. The Justices concluded it did not.
Although there may be reasons why we wish to have different rules for suits against government entities, in this case the issue was whether a jury, speaking as the voice of the community, gets to decide if the school did enough to protect from bullying. Presently, the way the law is written, they do not. As I told the Herald, I hope this serves as a wake up call to the legislature to allow juries in the future to decide whether a school system behaved reasonably in protecting a student from bullying.
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