Fortenbacher v. Commonwealth
72 Mass. App. Ct. 82, 888 N.E.2d 377 (2008)
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Rule of Law:
Under the Massachusetts Tort Claims Act, a public employer is immune from suit for decisions involving policymaking or planning, such as the design and installation of bridge guardrails, under the discretionary function exception. This immunity applies even if the government had notice of a resulting dangerous condition or is alleged to have abused its discretion.
Facts:
- In 1972-1973, the Massachusetts Highway Department (MHD) installed an aluminum railing on top of an existing concrete curb on the New Bedford-Fairhaven Bridge.
- This project increased the height of the interior railing but did not extend it along the entire length of the eastbound side of the bridge, partly due to the presence of a private driveway.
- On August 29, 1999, Richard MacCord was a passenger in a car driven by Melissa Hartnett traveling eastbound on the bridge.
- Hartnett's car collided with another vehicle, struck the exterior pedestrian railing in a section where the interior railing was absent, and fell into the Acushnet River.
- Both Hartnett and MacCord drowned in the submerged vehicle.
- Bridge inspection reports from 1993, 1997, and 1999 noted that the eastbound railing was potentially unsafe and could not safely redirect an impacting vehicle.
Procedural Posture:
- Michelle Fortenbacher, as administratrix of her son's estate, sued the Commonwealth of Massachusetts in Superior Court for wrongful death under the Massachusetts Tort Claims Act.
- The Commonwealth moved for summary judgment, arguing it was immune from suit under the discretionary function exception in § 10(b) of the Act.
- The Superior Court judge denied the Commonwealth's motion for summary judgment.
- The Commonwealth, as appellant, filed an interlocutory appeal of the denial to the Massachusetts Appeals Court, with Fortenbacher as the appellee.
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Issue:
Does the discretionary function exception of the Massachusetts Tort Claims Act immunize the Commonwealth from a lawsuit alleging negligence in the design and installation of a bridge guardrail, a decision which involved weighing policy alternatives?
Opinions:
Majority - Meade, J.
Yes, the discretionary function exception immunizes the Commonwealth from this lawsuit. The decision regarding the design and installation of the bridge guardrail was a quintessential discretionary function involving policy and planning. The court applied a two-step test to reach this conclusion. First, it determined that no statute, regulation, or established agency practice prescribed a specific course of action for the MHD, leaving it with discretion. Second, the court found that this discretion was the type the exception protects because it involved weighing alternatives and making choices related to public policy and planning, such as how to handle the unique problem of a private driveway adjacent to the bridge. The plaintiff's claim essentially invites judicial 'second-guessing' of administrative decisions, which the exception is designed to prevent. The fact that the Commonwealth may have had notice of the danger later on does not negate the immunity for the original discretionary decision.
Analysis:
This case reinforces the strength of the discretionary function exception as a shield for governmental entities in Massachusetts. It clarifies that the immunity inquiry is separate from the question of negligence; even if a government decision creates a known danger, immunity applies if the decision was rooted in policy or planning. The decision also establishes that the various immunities under the Tort Claims Act operate independently, meaning a claim is barred if any single immunity provision applies, regardless of exceptions to other provisions. This makes it more difficult for plaintiffs to overcome sovereign immunity in cases arising from governmental planning or design choices.
