Harry Stoller & Co. v. Lowell - 412 Mass. 139, 587 N.E.2d 780 (1992)

Rule:

The first step in deciding whether a plaintiff's claim is foreclosed by the discretionary function exception of § 10(b) of the Massachusetts Tort Claims Act, codified at Mass. Gen. Laws ch. 258, is to determine whether the governmental actor had any discretion at all as to what course of conduct to follow. The United States Supreme Court has referred to this determination as the first of two parts of the discretionary function test under the Federal Tort Claims Act. All the first step involves is a determination whether the actor had any discretion to do or not to do what the plaintiff claims caused him harm. If the governmental actor had no discretion because a course of action was prescribed by a statute, regulation, or established agency practice, a discretionary function exception to governmental liability has no role to play in deciding the case. The second and far more difficult step is to determine whether the discretion that the actor had is that kind of discretion for which § 10(b) provides immunity from liability.

Facts:

Five brick buildings in Lowell and their contents were destroyed by fire. The fire started on the sixth floor of one of the buildings. Three of the buildings, including the one in which the fire started, had sprinkler systems. The owner argued that the firefighters' negligence in failing to use the sprinkler system in the building led to the extensive damage to his building. The trial court found that despite the negligence, the city was entitled to immunity based upon the discretionary function exemption of § 10(b).

Issue:

Was the city entitled to immunity from liability by application of the discretionary function exception to governmental tort liability?

Answer:

No.

Conclusion:

On appeal, the Court disagreed and reversed the trial court's judgment. According to the Court, the negligent conduct that caused the fire to engulf all the owner's buildings was not founded on planning or policy considerations. The question whether to put higher water pressure in the sprinkler systems involved no policy choice or planning decision. The firefighters may have thought that they had a discretionary choice whether to pour water on the buildings through hoses or to put water inside the buildings through their sprinkler systems. They certainly had discretion in the sense that no statute, regulation, or established municipal practice required the firefighters to use the sprinklers, but whatever discretion they had was not based on a policy or planning judgment. Therefore, the discretionary function exception did not shield the city from liability.