Opinion
No. 11–P–2103.
2013-01-11
Donna GINSBURG v. Karen VANKENNEN & another.
By the Court (RAPOZA, C.J., TRAINOR & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Donna Ginsburg, brought a negligence action against Karen Vankennen and the city of Newton (city) for personal injuries she sustained when she was struck by an automobile operated by Vankennen at approximately 8:00 P.M. on December 24, 2006. Ginsburg alleges that visibility in the area where the accident occurred was impaired because two street lights were not working. She contends, in essence, that the city is liable because it failed to repair the lights in a timely manner. The city filed a motion for summary judgment asserting that it was immune from liability pursuant to § 10( b ) of the Massachusetts Tort Claims Act, G.L. c. 258. A Superior Court judge concluded otherwise and denied the city's motion. The city appeals and we reverse.
The case is here under the doctrine of present execution. See Brum v. Dartmouth, 428 Mass. 684, 688 (1999).
Background. We summarize the facts in the summary judgment record in the light most favorable to Ginsburg, the nonmoving party. The city was notified on November 28, 2006, that the street lights in question were nonoperational, and repaired them by replacing the light bulbs on January 2, 2007. The city employs two people (the crew) to maintain the street lights and traffic signals. The crew uses a bucket truck to make the necessary repairs and the city owns only one such truck. Ordinarily, street light repairs are made in the order in which the city receives notice that service is required .
It generally takes about two weeks to repair a street light except during the months of November and December when repairs can take up to five weeks because the number of calls regarding nonfunctional street lights increases in those months after daylight savings time ends.
There are two exceptions to this procedure: (1) the crew will repair traffic signals before repairing street lights, and (2) if the crew is servicing a street light at a particular location and discovers that the adjacent light is in need of service, that light will be repaired at the same time. Neither exception is applicable here.
Discussion. We review the denial of a summary judgment motion de novo. See Miller v. Cotter, 448 Mass. 671, 676 (2007). Ginsburg's claim of negligence against the city is that the city took too long to repair the street lights. She does not assert that the manner in which the city had maintained those street lights was negligent, or that as to those lights the city deviated from its established repair prioritization policy. The city claims that it is immune from liability because the length of time it takes to repair street lights is based on a determination of how best to allocate its limited resources. As such, the city claims, the conduct at issue is protected by the discretionary function exception provided by G.L. c. 258, § 10( b ), inserted by St.1978, c. 512, § 15.
Section § 10( b ) exempts from liability “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 or employment, whether or not the discretion involved is abused.”
To determine whether the city is entitled to immunity, we engage in a two-step inquiry. First we consider whether the city has any discretion at all as to what course of conduct to follow, and, if so, we ask whether the discretion that the city has is that kind of discretion for which § 10( b ) provides immunity from liability. See Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992). Here, Ginsburg rightly has not challenged the city's assertion that it has met its burden under the first prong of the test. We therefore proceed to the second (and more difficult) step in the analysis.
Our cases interpret the discretionary function exception narrowly: it provides “immunity only for discretionary conduct that involves policy making or planning.” Ibid. “Courts must determine whether the conduct that caused the injury has a ‘high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning,’ as opposed to conduct that consists of ‘the carrying out of previously established policies or plans.’ “ Chiao–Yun Ku v. Framingham, 62 Mass.App.Ct. 271, 277 (2004), quoting from Whitney v. Worcester, 373 Mass. 208, 218 (1977).
The city contends that it has met its burden under the second step of the analysis because the decision whether to hire additional personnel or equipment to handle the spike in nonfunctioning street lights, which occurs every year in November and December, is one which involves considerable discretion and judgment and requires city officials to weigh various alternatives and make choices with respect to public policy and planning. We agree.
The conduct at issue here, namely how quickly the city repairs street lights, has a close “nexus to policy making or planning.” Patrazza v. Commonwealth, 398 Mass. 464, 469–470 (1986). We are not persuaded by Ginsburg's attempt to characterize the city's conduct as involving a simple maintenance issue which falls outside the scope of § 10( b ). The relevant inquiry is not whether the city negligently maintained the street lights.
Rather, the relevant inquiry is whether the decision not to employ additional personnel or reallocate scarce resources so as to be able to repair street lights faster during the months of November and December is one involving public policy and planning. See Barnett v. Lynn, 433 Mass. 662, 664–665 (2001) (holding that the city's decision not to remove snow from a parcel of public property because of financial concerns was protected by the discretionary function rule). Because the city has demonstrated that fiscal policy considerations underlay its decision not to hire additional employees or procure additional equipment, § 10( b ) is a bar to this claim.
Contrast Greenwood v. Easton, 444 Mass. 467, 472–473 (2005) (town's motion for summary judgment based on § 10( b ) properly denied where town failed to satisfy its burden of showing that the actual manner in which it installed telephone poles for use as parking barriers was the product of policy making or planning considerations).
Accordingly, the order denying the city's motion for summary judgment is reversed, a new order shall enter allowing the motion, and judgment shall enter dismissing the plaintiff's claim against the city.
On the view we take of the case, “there is no just reason for delay” in the entry of the partial judgment. Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974).
So ordered.