-: Well, good morning to all.
Welcome to a new court year.
I especially wanna welcome all of our new law clerks,
interns and staff that have joined us over the past year.
A lot has changed in a year,
including having lost my predecessor,
Chief Justice Ralph Gants, unexpectedly, and way too soon.
Given his love of baseball,
I can think of no more appropriate way to honor him
than to use a baseball analogy as we start today.
As Chief Justice Gants would say,
"For those of you who said, wait until next year,
"well, next year is finally here.
"And therefore anything is possible".
With that, I'll ask Kurt Keneally
to throw out the first pitch.
-: FJC13089, Russell Berry v Commerce Insurance Company.
-: Okay, Attorney Darling.
-: Good morning, Madam Chief Justice and associate justices.
I'm Attorney Mark Darling.
I represent the Commerce Insurance Company.
I'd like to start by acknowledging the honor of
being the lead-off hitter today.
(people laughing)
This case comes before the court
because you took it sua sponte from the appeals court
where it had been appealed from a summary judgment decision
of the trial court.
The underlying case was it declared for a judgment action
concerning, whether or not,
Mr. Sheehan, who was insured
by the Commerce Insurance Company,
is entitled to immunity under
the Massachusetts Tort Claims Act.
Underlying facts, I'll just go over quickly
because I'm sure you've all read the briefs
and there was really very little disagreement about them,
but what happened was on June 17th of 2017,
there was a firearms training session
in the town of Raynham and run by Mr. Sheehan
and attended by Russell Berry,
the plaintiff in this case,
as well as a number of other officers.
During the day, they did firearms training
with their hand guns and with rifles
and some new equipment they had.
They broke for lunch late in the morning,
during the lunch break,
Mr. Berry stayed at the firearms range,
which is on town property in the town of Raynham.
They have their own firearms training site,
where they keep tools and such for the actual training,
they have an armory at the station where they keep the guns
and ammunition and other dangerous material
that needs to be secured.
During the lunch break, Mr. Berry stayed with the equipment,
along with a couple of other officers,
most of the other men left and got sandwiches
at a local store.
That included Mr. Sheehan
and another officer who was running the training.
Mr. Sheehan and the officer were gone
from the site for about 10 minutes,
and then came back to the location where the--
-: If you leave out the crucial fact Mr. Darling
as far as the going and coming rule,
and to sort of cut to the chase,
is that going to apply the exception,
going to apply beyond workers' compensation cases.
-: The accident, which I was about to get to
happened on town property.
So I deleted the line of cases that excludes the application
of the going, coming, going, and coming rule from accidents,
which happen involving employees
on their employer's premises,
as they arrive or leave from work is going to apply
to exclude any going and coming analysis
from your consideration here.
Cause what happened here is as Mr. Sheehan was parking
his truck, he struck Mr. Berry,
who was seated on a bench.
There's really no dispute that this all happened
at the firing range town property,
the place where they were doing the training.
So on the job site.
-: It seems to me counsel, that your case rises and falls
on how broadly we define the conduct and issue.
And so I'm trying to get some sense from you
of what the proper definition of the conduct is.
You say we don't focus on the tortious conduct
that gross negligence in the parking as you call it,
but rather on what Officer Sheehan was there for,
what is your best case for that proposition that we look at
the totality of what he's doing there, as opposed to the,
what was called horseplay below.
-: Yes, I, the, to address that directly,
the, no employer hires employees to commit torts,
at least good employers don't
and Mr. Sheehan wasn't expected
to have an accident that day.
This was an act the Massachusetts Tort Claims Act
acknowledges that employees,
it was enacted because employees of public employers
have accidents.
And the enactment of the statute was designed
to give people injured in those accidents,
a remedy which had before the enactment
of the tort claims act been prohibited.
And so in doing so,
the legislature created immunity for the public employee
involved in the tortious conduct.
The analysis that the court is facing in this case
is that there was a accident.
And although you call it horseplay,
it's really just an accident, accidents happen.
-: Are you accepting it's horseplay?
'Cause that seems to be a big factual issue.
If he's, if he just came in hot too fast, that's one thing.
If he tried to scare him,
that seems to be a different thing.
And I can't tell if that's a factual dispute or not.
I can't tell if you can hear me out of this mask, but yeah,
-: I know that that gloss was put on it by counsel
in their briefing,
but the facts is you'll find them in the agreed facts
that were the summary judgment record.
Don't call this horseplay.
They don't establish that there was anything more
than an accident that happened--
-: Was that a material disputed fact that may matter?
-: I think it's a dispute over verbiage, your honor.
(laughing) -: Well verbiage--
-: I think it's what you call it rather than what happened.
-: I mean, horseplay is you're doing some
horseplay is clearly not part of work,
driving too fast into a parking lot,
may be part of work, right?
It, doesn't that matter?
-: I don't think so, judge, I'd put,
put you I'd refer you to the Monaghan case,
which involved a grievous injury to a firefighter
where there were counts for reckless behavior
by the town and other public employees.
And this is not a 258 case so much as a claim
under the firefighters statute.
But in that case,
the court prohibited claims against co-employees
of the firefighter or other town members,
even if the conduct had been viewed as reckless,
because the statute prohibits the injured employee
suing his co-employees even
in wrongful conduct--
Justice Cypher: Does that statute,
excuse me, does that statute apply to police officers?
-: Yes. Justice Cypher: It does?
-: Chapter 111, Chapter 41 section 111.
-: So even, if they're doing something that is criminal
or close to criminal--
-: It wouldn't apply if it were criminal your honor.
-: Okay but it would if it were reckless?
-: It's the tort for other wrongful conduct,
that's the language in the--
-: Well other wrongful conduct could actually be something
criminal couldn't it?
-: That I would concede wrongful conduct gets to be vague.
Justice Kafker: That's the worker's comp 41 11F.
-: Well, actually that's in the tort claims act, your honor,
section two.
-: So, the reckless conduct is,
is found within the scope of employment under
the immunity statute, as opposed to 41 111F?
Is 41 111F is the workers' comp equivalent, right?
Darling: 40--
-: Yes it definitely is.
-: Section 111F of the firefighter statute,
which is its common name was enacted to close a gap
in the worker's comp statute, which was as you--
-: I'm trying to, it's very different to include.
I mean, it may be different to include coverage
under workers' comp or 41 111F
versus scope of employment for immunity purposes.
Those may be two different questions.
I'm just trying to, when you say the Monaghan case,
was that a 41 111F case?
Or is that a scope of immunity case?
-: Actually both issues arise in that case judge,
but it was a 111F case to begin with.
And then there were motions to dismiss other counts
because they were brought against co-employees.
-: Mr. Darling, can I get you back to tortious conduct
for a second.
And I think justice, hit it on the head when it says,
it depends on how we define conduct in this case
apply the third weighing factor.
If we look at conduct as for him going out to lunch,
having a working lunch that certainly serves the interests
of the employer, but driving too fast into the parking lot,
arguably doesn't.
So how do you reconcile our definition of tortious conduct
in that third wing factor?
-: The third wing factor being the requirement
that the employee's actions be in some way,
motivated by a desire to serve the employer.
-: Right. -: Well, what's happening
when Mr. Sheehan comes back to the site
with a sandwich is first of all,
he's bringing another employee with him.
The other fellow was running the show with him
and he's driving his personal vehicle
because they used it to bring the armor equipment
from the armory to the site.
He's bringing sandwiches back during the lunch hour,
which is a working lunch--
-: Mr. Darling, I'm sorry.
So those are all things that absolutely serve the employer,
but to focus in on the actual.
-: Coming in hot.
-: Coming in hot, let's focus on that.
-: What I was about to say is that the one thing
that doesn't fit is the fact that there was an accident
as he did this.
I am not arguing to the court that driving too fast
on the parking lot and causing this accident
somehow served the employer,
but that's not the issue in the case.
Accidents happen when public employees
operate their automobiles,
the statute creates immunity for them
in the circumstances presented in this case,
the remedy would be of the injured party
would be to sue the public employer.
Mr. Berry can't do that in this case
because he took section 111F benefits instead,
and is foreclosed from that.
If it hadn't been Mr. Berry who was injured
and it was some person who didn't qualify for
section 111F benefits,
I submit that the immunity doctrine
would prohibit the claim against Mr. Sheehan,
but would permit it against the town of Raynham.
-: But the-- -: Those are the facts.
-: But the scope of employment issue
at some point merges with the going and coming rule
and what he's actually doing,
if you're a truck driver and you're drunk
and you're texting,
when you go through the red light at the corner of
Main and Elm, the truck company is, is on the,
on the hook for that under vicarious liability.
It doesn't matter that the truck driver was texting or drunk
or speeding, or didn't see the red light.
But, but here, the police officer is not at the range.
The police officer's not on patrol.
The police officer is coming back from lunch.
He hasn't arrived back from lunch yet and he's driving.
However we want to define it.
And so it's not so easy to differentiate scope of employment
from the particular circumstances here.
And what's going on at this moment
as he's coming back from lunch.
-: Yes, your honor.
I would steer you back to the line of cases.
I've already mentioned on the going and coming rule.
When the accident happens on the employer's premises,
whether it's parking or leaving,
there's a series of cases which are cited in our brief,
in which the court has consistently held that
the going and coming rule doesn't apply.
-: Are those workers' comp cases
or are those tort claims act cases?
-: They're all workers' comp cases.
-: Okay and this is not a workers' comp case?
-: Well this is a workers' comp case in the sense--
-: Well, we're talking about the applicability
of the torts claims act
and the state has decided to give up its sovereign immunity
to a limited extent.
And so you have different policy considerations than you do
with workers' comp.
-: I agree.
I would point out that in that in enacting
the worker's comp, not the worker's comp,
the tort claims act and establishing immunity,
the legislature used the words, scope of employment.
That's almost the exact same language used in the
workers' comp act.
-: Except it's not right?
Worker's comp says arising out of,
and in the course of employment, right?
-: In the course of.
-: In the course of employment seems to be different
than scope of employment.
And these words matter, right.
-: Words matter and I would submit that in the course of,
and in the scope of,
I can't see a difference in meaning your honor,
for a long time, I've anticipated this question.
I can not understand a difference in the meaning of the word
course versus scope in the circumstances
of the two statutes.
I think it is a matter of them trying to address exactly
the same issue in the same manner.
They just use different words.
-: But they're being used in different contexts, right?
-: There is different contexts.
-: Cause there's different workers comp.
We wanna provide extremely broad protection, right?
We've got an injured worker.
Scope of immunity is a little different.
-: This court has also held
that the scope of immunity should be construed broadly
and you've rejected narrower constructions of the statute.
-: But in the sense it's a limiting recovery
while the other one is providing recovery.
So with their mirror images of each.
-: In the, I'll get the names of the case,
Namcano case, which was a workers' comp case involving a
ambitious employee at a Papa Gino's who involved got
involved in a parking lot accident later in the day,
having visited the site,
this court indicated by saying first we state that the go
employee immunity rule under chapter 152 of the workers'
comp act involves the same course of employment standard
that determines whether or not an employee is acting in the
course of his employment and thus entitled to workers' comp.
So in the workers' comp field,
the court has already decided that the course of employment
that entitles you to benefits is the same standard that
applies to the immunity a co-employee enjoys.
-: Not based on the sentence you just read,
'cause the sentence you just read
was all about worker's comp recovery, wasn't it, it wasn't.
-: It was.
So the court has also imported the workers' comp analysis to
analysis of the liabilities that arise under chapter one,
chapter 41, section 111F when policemen and firemen
are injured, the same sort of analysis goes there.
And I submitted that it makes eminent sense
to use the same analysis with respect
to the immunity doctrines under the tort claims act.
-: But haven't, we already decided that issue
in the Clickner case?
In Clickner we decided, in fact,
not to have the same scope in worker's comp vis-a-vis
the tort liability.
It says specifically this,
this meaning the workers' comp case that you cite to
Wormstead involved workers' compensation analysis,
not included tort liability
under respondent superior principles.
So we distinguish the two.
-: You're absolutely correct about that.
And that is the very reason I believe the court
took this case sua sponte
to resolve the difference between the finding
in the Clickner case
and the finding in the Monaghan case that I just read from,
I see those two issues as being inconsistent because you use
the worker's comp analysis broadly,
but when you get to Clickner,
you use the Wang analysis and you'll,
as you noticed from our brief,
we followed your lead there and you did the Wang analysis
at some length.
I would submit that even under the Wang analysis,
the immunity doctrine should apply to protect Mr. Sheehan.
-: Does anyone have any further questions?
-: No thanks.
-: Okay, thank you so much Attorney Darling.
-: I stand by suggesting your honor,
that what's happened in this case has resulted
in Mr. Berry and Officer Sheehan being treated differently.
I think that is the wrong result in this case, given,
given the fact that they were in exactly the same
circumstances,
both men are working, they're within the scope
of their employment,
they're on the public public employers job site.
They were both on their lunch hour.
They're both getting paid time and a half
under the overtime pay scale
that they're doing that day for exactly the same work
and the only difference is that Mr. Sheehan was driving
and parking when the accident happened--
-: Okay, Mr. Darling, we got it.
-: Okay. -: Thank you!
Okay, 10:48.
-: Morning, may I please the court acting
on behalf of the appellee Russell Berry.
In this case, the decision of the trial court
should be affirmed because
Officer Sheehan's conduct at the time of the Porsche's
conduct in no way was in furtherance of the random police
departments, schools and purposes,
and in no way was conduct that he was hired to perform.
So under the three prongs of the weighing test,
that both my brother and I have argued,
he fails to establish a prong one and prong three.
We can see that prong two,
whether or not the conduct was within the authorized time
and space limits is a bit of a jump ball.
However, what is missing from my brother's analysis
is what was the actual conduct that caused the injury.
It wasn't simply driving into the parking lot too fast.
It went beyond that.
In accordance with the information
on the record in the undisputed facts,
not only did officer Sheehan come into the parking lot
too fast, spinning rock and gravel,
he then drove his vehicle on the other side
of the conics trailer, not on the access road.
He then stopped his vehicle and in the report,
the record offending, so this case,
this is a fact that it is not in dispute,
while operating his Ford F-150 pickup truck.
This is at page 60 of the appendix,
Officer Sheehan pulled into the range
stopped, and then sped up spinning rocks and gravel
Officer Sheehan's truck then turned
and headed into the plaintiff's direction.
The plaintiff heard the truck sliding and then impact.
Although my brother disputes the term horseplay,
the term fits for this behavior and--
-: The council, even, even if it does,
is that of any legal significance,
that it was just that as council said,
that whether it was negligence or gross negligence,
it was an accident.
-: It is your honor,
because in all the cases that have found
that the conduct of the public employee
was either grossly negligent or reckless,
or perhaps even criminal,
there still has to be a nexus between that conduct
and the furtherance of the employee's interests.
-: So, so now let's go,
let's go backwards one domino then,
because I know that you're all parsing this out,
splitting all of these different things,
but the totality of this was,
it was a mandatory training of the town
for all of their police officers.
And the defendant was the instructor.
They were all coming there to be trained.
So in the zoomed out view of all of this,
aren't all of these actions when they,
they were being paid for lunch.
So the town knew that they were going to have lunch
during the course of this day.
Certainly you can infer that there weren't any lunch
facilities there, unless people brought lunch with them,
that this is all part of the training.
-: I would agree with your honor.
That is the context.
And that's what my brother has focused on.
That is the context.
And I think that's part B of the Wang test,
but there's two other prongs to that test.
And that is the conduct
that he's engaging in the specifically,
the Porsche's conduct still has to be in furtherance
of the employer's interest.
In this case, the conduct he was engaging
in was actually conduct he was hired to prevent
this recklessness in the parking lot.
When dealing with issues of tort immunity,
I don't think we can separate the actual Porsche's conduct
from the context and the circumstance.
-: I guess what I'm struggling with
is that's getting really granular.
And I'm just wondering if we have to go
that granular in our analysis, or don't we just say,
he's there to train them.
It's lunch hour, they're being paid,
he's going out to get lunch and he's coming back
from getting lunch.
And all of that is in furtherance of finishing the day's
training and certification for the other officer.
So even the fact that he comes in hot
and does all of this what's been described as horseplay
by the trial judge.
Why does that matter?
-: I think you do have to get that granular, your honor,
when you're dealing with issues of tort immunity,
particularly for public employees,
the Clickner case did hold
that the statute chapter 258 should not
be construed so broadly as to deter people
from public office,
but it also held that it should not be construed
so narrowly, I'm sorry.
So I'm mixing my broadly and narrowly,
but it also indicated that it should not be construed so
broadly as to provide a cloak of immunity
for public employees who are entrusted
with oftentimes great authority
for any reckless conduct,
which bears no nexus between what they were hired to do
and the interest of the public employer
and the actual conduct.
-: I think that brings us back to the question
that I had started with,
which is how broadly do we look at the conduct?
-: Well, I think your honor, under Wang analysis,
and I go back to the Wang analysis
because although the court has looked to Wormstead
for some instruction, it's,
it becomes problematic because although it's instructive,
there was no behavior to look at or analyze
Wormstead was a 15, chapter 41.
-: Right, so let's get back to my question.
How do we define the conduct?
Is it as broad as Justice George has suggest
that this is a firearm training
lunch is paid for,
officers are on call for emergencies
or large scale emergencies.
If I look at it that way,
it sounds like it's within the scope of employment.
But if I look at it more narrowly, as you're suggesting,
then it looks like it's horseplay and nobody's hired to,
you know, rev up their engine and drive fastly at somebody.
-: I think actually the Wang prong the Wang,
the three-pronged link to speak to that issue, your honor.
Whereas the, I would submit that the Wang prongs
really boil down to three things,
conduct, context and purpose.
The first one where the conduct is the kind
the employee was hired to perform, that's the conduct.
We would submit that the conduct
that the employee was engaged at the time of the tort
was not when he was hired to perform.
-: I think you're skipping the question.
The question is how broadly to define that conduct?
-: I think, but I think part two is really context.
I think most of what Justice George was hitting on
were things that are the context,
is it in the scope authorized time-space limits,
they were on lunch.
They were getting paid.
That is, those are factors to be considered,
but those aren't the only factors to be considered
in any tort analysis,
particularly on the topic of immunity,
you have to look granually at the conduct.
Now-- -: The problem with that
is that employers, as council said,
don't hire people to commit torts.
So if we have someone who's plowing the roads
in a snow storm and they clip another vehicle,
the department of transportation did not hire
the plow driver to clip another vehicle.
Correct.
-: But they did hire them to plow the road.
And in that case,
he was in the exercise of doing something
that was in furtherance of the employer.
-: And that's the same thing.
-: That's number three though.
That's, I might be with you on number three,
but I think number one.
-: And I understand your point,
there's sort of an overlapping of the three prongs
and how granular, how granular do you get?
I think in any of these situations, they are fact driven.
And in here,
it's really the fact of the conduct that turns this case
so that--
-: But how do we distinguish this case
from my analogy about the plow driver?
-: So in the plow driver's case,
his specific conduct, was conduct he was hired to perform,
he was plowing the road and it was in the furtherance
of his employer's interest in clearing the road.
And the same can be true in reckless driving cases
involving police chases.
There are cases that hold that a police officer
that drives recklessly in the course of the police chase
is still on the furtherance.
-: What about the plow driver who is plowing the road
and then decides, you know,
this is a great area here to practice
my infinity signs or eight circulates,
whatever they are and loses control after he takes
a little, excites himself
because it's been a boring morning.
-: And I think that's a great question, your honor,
because I think you do have to get that granular
on these tort analysis.
If the plow driver is doing figure eights,
in no furtherance of his employer's interests,
and that's not what he's been hired to perform,
then I think that that falls within the scope
of that forms beyond.
So is it really a question of looking at
we're looking not just at the course of,
or the scope of, or what they're doing,
but question how they're doing it?
Because certainly driving in and all that was not a problem,
but it was how he drove in and how he handled the car.
-: And I think your honor,
officer Sheehan would have a better or Commerce
would have a better argument
if in that initial turbine to the driveway
is when he struck officer Berry,
but that's not what happened factually.
Not only did he come in hot,
he then drove in a place where vehicles don't usually go
spun his tires and speeding up more, lost control
and hit Officer Berry.
I don't think that we can tag municipalities
with liabilities.
-: Now, are any of these facts disputed
or do you have all your facts in the record?
-: Those facts are all on the record.
That I think why this case turns on the facts
it raises a lot of interesting legal issues
in terms of a Wormstead analysis versus Wang analysis.
And the difference between chapter 152
versus the corresponding 111F 258, section two.
And I would suggest that the language
in the statutes are different
and the purposes of the histories of the statutes
are different.
But ultimately it turns on the fact
as any analysis of tort immunity has to.
-: But that's why I'm bothered by the horseplay thing,
just to end on.
So Justice Gaziano's hypothetical,
which is a good one.
They're plowing and they're plowing the road
and his supervisor's standing by the side of the road.
And he, he just speeds up to wave at him.
I take it he's still doing his job, right?
But if he speeds up to shoot snow at him
and scare him, that's different, right?
-: Precisely, your honor.
-: So is, is this case the first one or the second one?
-: This case is the second one.
-: But how do we, but do we know that?
Cause it seems like that's,
that does seem to be what it's about,
but when the judge adds horseplay to it,
then I'm starting to think he's decided it's the second one,
but isn't that the jury's call?
-: I don't think the term horseplay
is what's dispositive here.
I think officer Sheehan's description of his own behavior
is telling in that
he wasn't simply speeding into the parking lot
because he was late for the next lesson or speeding into
the parking lot just to get to his parking spot.
He admits that he sped into the parking lot, spun rocks,
and gravel drove into a place that was not the access road.
-: He's drives into a place that's closer to where
they're eating, right?
So he arguably he's accelerating the process
so that they can return to work, right?
I mean, he's not parking in the parking lot
'cause I mean, I don't know, I'm not the jury,
but I'm just trying to get a sense of do we need,
isn't this granular and it's this much a totality
of the circumstances assessed
that we have to resolve these little differentials.
-: I think that's correct your honor
but in this record--
-: But then you lose don't you?
-: No, because the record here establishes
not just that he sped into the parking lot,
but he drove where vehicles don't usually go
close to where people are sitting.
-: Closer to where they're eating, which may make sense.
If you want to get back to shooting.
-: No, then he stops.
Then he speeds up against such a rate
that he essentially loses control of the vehicle,
and strikes Officer Berry, that's not simply
I was driving in too fast when I was intending to park.
-: That's definitely in, in the hypothetical
about the snowplow, trying to scare his supervisor.
-: Right, we don't, have anything on the record
to suggest that officer Sheehan was trying to scare them.
Although as my brother's brief recognizes,
I think he termed it as joking around.
There's nothing about this,
that suggests officer Sheehan's goal,
and officer Sheehan admitted
that what he was doing was not in the furtherance
of the Raynham police department's purpose or interest
at the time of the incident.
He did say obviously he didn't strike officer Berry
intentionally, but there was nothing
about his conduct that actually gave rise to the injury
that should be encompassed by a cloak of immunity
provided by chapter 258.
Certainly we have public employees who were entrusted
oftentimes with tremendous amounts of authority.
And if we were to give them immunity for tortious conduct,
that has no nexus to the goals of the public employer,
I think that's a dangerous precedent.
And I think you have to get granular
and look at what was the conduct,
what was the context of that conduct?
And also was it motivated by a purpose
to serve the employer's interests?
And here, I would say that
while I agree with Justice George,
that the context,
the time and space limits is close cause he was coming back
from lunch, it was a paid lunch.
I think both prong a and C fail here under the main test.
And I would just want to state that the Wormstead case,
I think again, is instructive,
but where it falls apart and it's in our ability to apply it
here is that the court in Wormstead
had no tortious conduct to anal.
It was simply looking at whether or not Wormstead
and bringing papers back to the police department
from a paid lunch break
and returning back to the station was acting in furtherance
of, or in the performance of a duty under chapter 41.
And they found that he had,
he was rear ended at a traffic light so there,
there was no analysis of what actually was he doing
at the time he committed the behavior.
There's no immunity analysis.
That I think I can deal
unless there are any other questions.
-: Thank you so much.