Discretionary actions and decisions that warrant immunity must be based on considerations of public policy; even decisions made at the operational level, as opposed to those made at the policy or planning level, would involve conduct immunized by the discretionary function exception if the conduct were the result of policy determinations.
Appellant owner filed an action against appellee city based upon the alleged negligence of city firefighters in fighting a fire in the owner's buildings. The owner argued that the firefighters' negligence in failing to use the sprinkler system in the buildings led to extensive damage. The Superior Court (Massachusetts) entered a judgment notwithstanding the verdict (despite the negligence), finding that the city was exempt from liability under the discretionary function exception of § 10 (b) of the Massachusetts Tort Claims Act, codified at Mass. Gen. Laws ch. 258. The owner appealed.
Is the city is entitled to immunity from liability by application of the discretionary function exception to governmental tort liability?
On appeal, the court disagreed and reversed the trial court's entry of a judgment notwithstanding the jury. 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.