Opinion
CIVIL ACTION NO. 95-12425-RBC
June 29, 2000
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW, OR, IN THE ALTERNATIVE, FOR A NEW TRIAL (#90)
The only issue which the Court shall consider in connection with Defendants' Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial (#90) is whether the Town of Plymouth ("the Town") can be found liable for the negligence of Officer Rita Quinn ("Officer Quinn") in arresting Richard Sheehy ("Sheehy") without probable cause. At trial, the jury found that Officer Quinn had deprived Sheehy of his constitutional rights by arresting him without probable cause. Officer Quinn's liability was founded on 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act statute, M.G.L. c. 12, § 11I. The jury also found that the Town was liable for the negligent act of its agent, Officer Quinn, in arresting Sheehy without probable cause as claimed in Count I of Sheehy's complaint. The liability was premised on the Massachusetts Tort Claims Act, M.G.L. c. 258, § 2. That Act provides, in pertinent part, that ". . . public employers shall be liable for injury . . . caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his [or her] office or employment." However, section 10(c) of Chapter 258 provides that section 2 does not apply to:
The Court has this date denied the Defendants' Motion for a New Trial, or, in the Alternative, to Alter or Amend Judgment (#89).
Section 10(c) was passed in 1978 as was Section 2.
(c) any claim arising out of an intentional tort, including assault, battery, false imprisonment, false arrest, intentional mental distress, malicious prosecution, malicious abuse of process, libel slander, misrepresentation, deceit, invasion of privacy, interference with advantageous relations or interference with contractual relations.
The question, vigorously debated in the instant case, is when a claim for negligence can be said to "arise out of" a claim for false arrest. The Court first discussed in the matter in the context of the Town's motion to dismiss. See Sheehy v. Town of Plymouth, 948 F. Supp. 119, 121-6 (D.Mass, 1996). The Court next took up the matter in an opinion issued on the Town's motion for summary judgment after remand from the Court of Appeals. See Sheehy v. Town of Plymouth, 2000 WL 110140 *1-3 (D. Mass., 1/18/2000).
At trial, the Court found insufficient evidence of any causal link between the Town's failure to train and supervise Officer Quinn and her act of arresting Sheehy. The Court also found that any alleged acts of negligence occurring after the arrest "arose out of" the false arrest and were therefore barred by the plain terms of M.G.L. c. 258, § 10(c). However, the Court put to the jury the question of whether the Town could be liable under M.G.L. c. 258, § 2 if it was found that Quinn negligently arrested Sheehy without probable cause. This was done on the basis of the First Circuit's decision in Lewis v. Kendrick, 944 F.2d 949, 953 (1 Cir., 1991).
In the Lewis case, the jury had found the City of Brockton liable by answering "yes" to the following question:
6. Did the negligence of any of the public employees of the City of Brockton, including, but not limited to that of the defendant police officers and/or their supervisors, result in the arrest and injury to Diane Lewis?Lewis, 944 F.2d at 953.
The Court wrote that the jury could have found the defendant officers liable for negligently arresting Lewis without probable cause, writing:
. . . the City could be liable under M.G.L. ch. 258, § 2 for the negligence of defendant officers acting within the scope of their duty. McNamara v. Honeyman, 406 Mass. 43, 46. 546 N.E.2d 139 (1989). To arrest without probable cause, even though in good faith, could be found negligent. Accordingly, we must rule that the jury's affirmative finding in answer to special interrogatory 6 was justified, whatever basis it may have adopted.Id., 944 F.2d at 953-4.
The First Circuit in Lewis did not mention section 10(c), although that portion of the statute was cited in the McNamara case, viz., "Section 10, which provides for exemptions from operation of § 2, among others, states in pertinent part that a public employee shall not be immune from `any claim' arising out of an intentional tort . . .". McNamara, 406 Mass. at 46, 546 N.E.2d at 142. Thus, a public employee, such as Officer Quinn, could be found liable for an intentional tort, such as false arrest, but a public employer, such as the Town, could not be.
With all due respect, the Court cannot see how the statement of Massachusetts law as set forth in the Lewis case can be correct. False arrest under Massachusetts law is an intentional tort; a tortious act cannot be both negligent and intentional. Preferred Mutual Insurance Co. v. Gamache, 42 Mass. App. Ct. 194, 202, 675 N.E.2d 438, 443 (1997) citing Waters v. Blackshear, 412 Mass. 589, 590, 591 N.E.2d 184, 185 (1992); see also Sabatinelli v. Butler, 363 Mass. 565, 567-8, 296 N.E.2d 190, 192 (1972). Under Massachusetts law, a claim that an officer negligently arrested a person without having probable cause to do so is not viable. This is because the intent element is the intention to arrest. An officer is liable for false arrest if he or she arrests without probable cause whether or not the act is negligent (in the sense that the officer was careless in making the probable cause determination) or intentional (in the sense that the officer knew that there was no probable cause but decided to arrest anyway for unrelated reasons).
The Court held this view before sending the negligence claim to the jury but did not grant judgment as a matter of law on the negligence claim against the Town at that time because, in the event the Court is wrong, the Court did not want to put the patties to the expense of a new trial. If the plaintiff appeals a dismissal of Count I against the Town, and the Court of Appeals reverses, all that need be done is to reinstate the verdict and issue a revised judgment.
Accordingly, I rule that in the instant case the Town cannot be liable for the negligence of Officer Quinn in arresting Sheehy without probable cause because such a claim of negligence "arises out of" the intentional tort of false arrest and thus is precluded by M.G.L. c. 258, § 10(c). It is therefore ORDERED that Defendants' Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial (#90) be, and the same hereby is, ALLOWED to the extent that it is ORDERED that Count I of the Amended Complaint be, and the same hereby is, DISMISSED. It is FURTHER ORDERED that Defendants' Motion for Judgment as a Matter of Law Or, in the Alternative, for a New Trial (#90) be, and the same hereby is, otherwise DENIED. An Amended Judgment shall enter.