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SJC-13470,
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Jane Doe v. Massachusetts Trial Court Department.
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Okay.
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Attorney Gleason, whenever you're ready.
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Good morning, Your Honors.
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Attorney Thomas Gleason, representing Jane Doe.
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There are a couple issues here, Judge, Your Honors,
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that we're dealing with,
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and that is we're dealing with the immunity provision
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of the Mass Tort Claims Act, Chapter 258,
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Sections 10-J and 10-B.
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Relative to the public duty exception,
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which is Section 10-J, in my review of the cases,
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obviously the cases are many and varied,
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and it seems to me that it's a very
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factually intensive inquiry
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relative to the application of 10-J.
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My understanding of it generally,
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I'm kind of a big picture guy,
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is there must be an affirmative act
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which materially contributes
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to a dangerous condition causing harm.
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So in terms of this situation, Judge,
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what we say is obviously in our brief,
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we've enumerated a number of what we think
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were failures of the trial court, multiple ones.
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I do understand.
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Can I push you a little bit on the facts?
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If the trial court is not on notice that he's a groper,
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this doesn't meet the affirmative act requirement, right?
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Isn't that clear?
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Because they may be negligent, but you know,
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he's on the hook, but they're not, right, under 10-J?
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I can't disagree with you on that, Judge.
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I think that there are numerous incidents here
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of what we would would call,
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plaintiff would call negligence.
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Let me just press you again one step further.
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So that means the 2009 groping incident,
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they can't be responsible for under 10-J, correct?
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Other than the statute of limitations, of course as well.
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We're not claiming that, but I would agree, Judge.
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There's no prior indication of any groping
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before 2009, right?
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There is not, Judge.
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So your 10-J argument only potentially
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is applicable to the 2014 incident
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after the 2013 groping incident,
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right?
Correct,
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and why we say, Judge, factually that we think
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that there's enough evidence to prove notice
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to the trial court.
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I was gonna get there.
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Go ahead.
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I think it boils down to a number of different things.
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Is number one, we have a plaintiff
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who's gonna get some credibility,
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because relative to the 2014 incident,
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at least one aspect of it,
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probably the most serious aspect of it,
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there doesn't appear to be any dispute
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that she was removed from a cell,
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taken to a room that was not accessible to the detainees,
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go in through a locked door,
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where she says there was sexual contact.
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That's admitted.
I think on the facts,
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this is an immunity case, but on the facts,
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you have a very strong case,
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as far as the court officer goes.
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Correct, but I think, Judge,
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putting it all together for you,
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is that first you have somebody who has some credibility.
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Number two is you have proof, independent proof.
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I don't think it's a disputed fact in this case,
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is that she did give notice to New Hampshire in 2009
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that something
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had happened to her.
But there's no indication
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they've communicated any of that
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to the trial court, correct?
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No, I would disagree with that, Judge.
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I think that's the second part,
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that we know that she communicated it to New Hampshire.
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The third part of it is, and very frustrating
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in a situation like this, Judge, is during discovery,
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of course, as you might imagine,
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one of the areas of inquiry we had was,
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is did the trial court know about the 2009 incident?
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Did you get notice?
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Did somebody tell you?
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Did New Hampshire tell you?
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And the responses that the plaintiff received was,
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is that there was no information concerning that.
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There was none forthcoming.
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No incident report, no knowledge.
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The depositions that were taken
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didn't prove fruitful in that regard.
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But doesn't that hurt you?
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I'm confused by that.
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That's not helpful to you.
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It's not helpful to us, Judge,
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until you get to the very last deposition that I took,
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and that if you look at the deposition of,
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and it's in the materials,
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and that is the deposition of
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the deputy director of security.
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He indicates, and this is at the appendix
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at 778 through 781, one of the final questions I asked
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to the final person I'm deposing is
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did the trial court know anything about a 2009 incident?
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And what he reports at this point in time is he says
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that he just had a conversation with somebody I had deposed
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two days earlier, who was the regional director of security,
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who told him that there had been an incident in 2009,
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and gave some specifics,
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that it had been investigated by the police,
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that it involved something that happened in an elevator,
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and that it had been unsubstantiated.
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I think that's the 2013 incident.
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No, this is 2009, Judge.
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I thought the unsubstantiated one was the 2013,
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July, 2013.
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I may be confusing them.
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As I read Judge Lou's findings in what the defendants say
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is that the 2000 and the prior one reported to New Hampshire
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was not for whatever reason transmitted to the trial court,
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and then there was a July, 2013 complaint
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against the court officer, and that was unsubstantiated.
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Am I getting that wrong?
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There are two separate incidents, July 13th.
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I don't know.
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The security people that I deposed, they had some knowledge.
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I didn't read the depositions, and you were there,
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so I don't know if I'm getting it wrong.
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Yeah, a little bit off, Judge.
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The 2013 incident, there was no incident report filed.
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One of the court officers that we deposed,
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the assistant chief court officer recalled
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that there had been a complaint,
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and it actually was a police officer from Lawrence
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came to the trial court and said,
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"Somebody came into our department
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and complained about this."
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Apparently, there was no investigation,
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there was no incident report.
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But that's
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the 2013 incident.
Correct.
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On the 2009, is that this last deposition that I'm taking,
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and it's that at the appendix at 778 to 781,
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is this witness, who is the deputy director of security,
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said that the regional director of security
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had told him a week before his deposition
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about the fact that there had been a 2009 complaint
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that was made, that it was investigated by the police,
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that it was unsubstantiated, it involved an elevator,
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and a specific question that I asked was,
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because frankly, I'm real surprised at this point
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that I've received no information
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that they know anything about it,
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and then this very last witness is saying this to me,
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is that this witness, I would ask the question,
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"Well, do you have any information,
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did he tell you anything about New Hampshire,
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informing you of this or informing the authorities of this?"
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And this person confirmed, "Yes,
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that's what the regional director of security told me."
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Is this in your brief anywhere?
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I read the excerpts at 718.
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I may have missed the 780.
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You sure it's 780 as opposed to 718?
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Because I'm looking at the actual deposition excerpts
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on page 718, and there's, I'm reading the wrong ones?
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778 to 781, and I do site it in the brief, Judge.
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Attorney Gleason, could I just ask you about the 2009?
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Because I'm slightly confused as to whether or not
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this really helps you or hurts you.
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But even if all of that is true, if at the end of the 2009,
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whatever investigation was done,
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that it was unsubstantiated,
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does that help you with respect to notice
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for the trial court?
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I think, Judge, that the focus here that we have
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that when I'm looking at this immunity issue
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in trying to sign a specific type of negligence
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that involves an affirmative act is one of the requirements
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under PREA, and one of the requirements
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under the policy manual is the requirement that there be
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the filing of an incident report.
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That triggers a whole bunch of things.
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It's something that technically will get distributed
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to other people within the trial court.
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It triggers an investigation,
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it triggers all kinds of things where it gets out there
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into everybody's knowledge.
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Technically under the rules of the policy manual,
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in certain circumstances, in serious cases,
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it goes to the justice in the court.
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I'm sort of confused by that, Mr. Gleason.
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First of all, I thought the Federal Rape Elimination Act
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issue, putting aside whether it's been adopted
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and what Massachusetts has to do
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to be able to receive the 5%, put aside all those issues.
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I thought that went to the 10-B issue.
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I don't see how this issue helps you on 10-J,
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whether there was an affirmative act
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that would constitute liability
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when the action is being taken by a third person.
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How does the Federal Rape Elimination Act
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help you in any way with the 10-J issue,
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as opposed to, at least theoretically,
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I understand how it helps you with the 10-B issue.
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Our theory on the 10-J issue is that,
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generally speaking, is that Mr. Martinez
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should not have had any access at all to my client.
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Based on the circumstances,
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if the trial court.
Is that an affirmative act?
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I think it's hard, but how is that an affirmative act,
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as opposed to not doing something?
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Or the original cause?
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Yeah, even better, or the original cause.
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Well, I think it's an affirmative act,
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because it's in the spirit of the cases that I cited,
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Bonnie, Baptista and Devlin.
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In those cases, basically what happened
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is that there was some act by the government
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whereby individuals were allowed into areas
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where they shouldn't have been,
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and by that act of allowing that person into those areas,
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that's what creates the dangerous condition.
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Other than the areas of where we say it's deficient,
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there's nothing really wrong with the Lawrence lockup.
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What's wrong with it is when he's allowed access to it.
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How is this different than the school bullying case
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that we had where the school let the bully on the loose
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and the poor kid was thrown down the stairs?
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Is that Brum, Judge?
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Cormier.
Cormier.
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The difference is that, as I understand that case,
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is that I believe it was a young child
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who was pushed downstairs and received some tragic injuries.
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There had been some general notice of bullying,
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but I don't know that there was ever,
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I don't recall that there was specific notice
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that the individual that pushed the child had pushed,
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had any notice about that individual child.
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So your argument is that the original cause
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is the lax trial court practice, not the rapist CO,
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essentially?
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I'm sorry, I misunderstand, Judge.
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The original cause, to get under J,
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the original cause of the harm to your client
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has to have been the failure of the trial court
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to supervise this person, having notice.
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You know, I wouldn't put it that way.
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I think that the affirmative act is.
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Using the original cause language,
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how would you put it, Mr. Gleason?
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The affirmative act is first,
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is the enormity of this situation.
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We know my client made the accusation,
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confided in the New Hampshire authorities in 2009.
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We know that.
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And then a few years later,
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here she is in the same position again,
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00:14:10.860 --> 00:14:13.770
and who is it that's taking care of her
265
00:14:13.770 --> 00:14:17.850
and supposedly safeguarding her in a situation
266
00:14:17.850 --> 00:14:19.168
where she's detained and helpless
267
00:14:19.168 --> 00:14:22.050
and shackled and handcuffed and in a cell?
268
00:14:22.050 --> 00:14:24.420
It's the same individual she complained about.
269
00:14:24.420 --> 00:14:28.830
So the affirmative act is that we say
270
00:14:28.830 --> 00:14:31.020
that the trial court had notice
271
00:14:31.020 --> 00:14:33.180
and they nevertheless acted.
272
00:14:33.180 --> 00:14:38.180
They allowed this person to continue to be in that area,
273
00:14:40.230 --> 00:14:42.720
be in the lockup, be in the position
274
00:14:42.720 --> 00:14:45.540
where he could open the cell door,
275
00:14:45.540 --> 00:14:47.550
where he could take her out of a cell,
276
00:14:47.550 --> 00:14:50.640
where he could bring her to a room, a private room,
277
00:14:50.640 --> 00:14:51.840
enter a locked room,
278
00:14:51.840 --> 00:14:53.940
and where he could sexually assault her again.
279
00:14:53.940 --> 00:14:56.250
Attorney Gleason, I know you know this record,
280
00:14:56.250 --> 00:14:58.020
and we're gonna pour into it after the fact,
281
00:14:58.020 --> 00:15:00.510
but those two things, I just want to make sure
282
00:15:00.510 --> 00:15:01.770
I understand what you're saying.
283
00:15:01.770 --> 00:15:05.370
So first you are saying in the record,
284
00:15:05.370 --> 00:15:09.960
the 2009 complaint to the New Hampshire authorities
285
00:15:09.960 --> 00:15:13.260
was communicated back to Massachusetts.
286
00:15:13.260 --> 00:15:15.071
Yeah, let me be specific, Judge.
287
00:15:15.071 --> 00:15:20.071
At the appendix at 778, 781.
288
00:15:20.397 --> 00:15:22.410
Can you read us the relevant portion of that,
289
00:15:22.410 --> 00:15:25.233
because for some reason, I can't pull up that page.
290
00:15:32.160 --> 00:15:33.690
My understanding of, and again,
291
00:15:33.690 --> 00:15:37.410
you know it better than I do, that neither of the complaints
292
00:15:37.410 --> 00:15:40.260
to New Hampshire were communicated back to Massachusetts.
293
00:15:42.256 --> 00:15:44.823
That's true based on the record, Judge.
294
00:15:46.680 --> 00:15:48.300
There's nothing in the record,
295
00:15:48.300 --> 00:15:49.710
other than what I'm gonna read to you,
296
00:15:49.710 --> 00:15:52.263
that New Hampshire was ever notified.
297
00:15:53.460 --> 00:15:56.220
But this is Massachusetts.
Right.
298
00:15:56.220 --> 00:15:57.780
Okay, what are you gonna read us?
299
00:15:57.780 --> 00:15:59.223
It's a little bit lengthy.
300
00:16:00.511 --> 00:16:03.600
From what I understand, it says New Hampshire
301
00:16:03.600 --> 00:16:08.280
told some unspecified Massachusetts authorities about this,
302
00:16:08.280 --> 00:16:11.100
but not the trial court in particular, right?
303
00:16:11.100 --> 00:16:13.140
It didn't say the trial court in particular.
304
00:16:13.140 --> 00:16:18.140
It does say, a portion of it, and this is at page 779,
305
00:16:18.330 --> 00:16:20.077
appendix 779.
306
00:16:20.077 --> 00:16:23.280
"Question, did he mention the New Hampshire authorities?
307
00:16:23.280 --> 00:16:25.980
Answer, he mentioned something about somebody
308
00:16:25.980 --> 00:16:26.940
up in New Hampshire.
309
00:16:26.940 --> 00:16:29.430
He didn't say who, just New Hampshire.
310
00:16:29.430 --> 00:16:31.230
Question, did he say that New Hampshire
311
00:16:31.230 --> 00:16:33.780
had alerted the Massachusetts authorities
312
00:16:33.780 --> 00:16:36.600
to something that had happened in the Lawrence lockup?
313
00:16:36.600 --> 00:16:37.917
Answer, yes."
314
00:16:39.090 --> 00:16:39.923
And it goes on.
315
00:16:39.923 --> 00:16:41.589
I mean, not to state the obvious,
316
00:16:41.589 --> 00:16:44.550
but we need to know who that Massachusetts authority is
317
00:16:44.550 --> 00:16:46.713
for you to get into the affirmative act.
318
00:16:49.710 --> 00:16:50.543
For summary judgment purposes.
319
00:16:50.543 --> 00:16:52.834
You call the police, right?
320
00:16:52.834 --> 00:16:57.810
They may have decided it was junk,
321
00:16:57.810 --> 00:17:00.930
but you need to show, right,
322
00:17:00.930 --> 00:17:04.260
that for this to be an affirmative act,
323
00:17:04.260 --> 00:17:08.010
you need to demonstrate that basically they knew
324
00:17:08.010 --> 00:17:12.930
of his past practice of groping
325
00:17:12.930 --> 00:17:16.560
and put her in front of him.
326
00:17:16.560 --> 00:17:19.710
You need that level of knowledge
327
00:17:19.710 --> 00:17:21.090
for this to be an affirmative act.
328
00:17:21.090 --> 00:17:24.750
Otherwise, it fits within the negligence
329
00:17:24.750 --> 00:17:26.130
that they're protected against,
330
00:17:26.130 --> 00:17:30.993
and you could only sue the court officer himself, right?
331
00:17:31.920 --> 00:17:33.446
I would disagree, Judge.
332
00:17:33.446 --> 00:17:35.573
That fact that I can add for you is on,
333
00:17:35.573 --> 00:17:37.380
because it says what it says,
334
00:17:37.380 --> 00:17:39.255
and that's the evidence that we have.
335
00:17:39.255 --> 00:17:43.740
But what I can add for is maybe just the blatantly obvious,
336
00:17:43.740 --> 00:17:46.560
is that the information that this is being reported
337
00:17:46.560 --> 00:17:49.260
to New Hampshire is coming from
338
00:17:49.260 --> 00:17:53.984
the regional director of security for the mass trial court.
339
00:17:53.984 --> 00:17:57.150
I think putting all of those things together
340
00:17:57.150 --> 00:17:58.470
as circumstantial evidence.
341
00:17:58.470 --> 00:18:01.740
But years and years later,
342
00:18:01.740 --> 00:18:05.520
while he's preparing for his deposition, right?
343
00:18:05.520 --> 00:18:10.200
Where he's trying to, it's a little different, right?
344
00:18:10.200 --> 00:18:13.350
He may have heard this as part of.
345
00:18:13.350 --> 00:18:15.360
Let me add one other thing, Judge.
346
00:18:15.360 --> 00:18:16.980
Two days before I deposed him,
347
00:18:16.980 --> 00:18:19.597
the regional director of security, I asked him,
348
00:18:19.597 --> 00:18:23.280
"Do you know any information about a 2009 incident?"
349
00:18:23.280 --> 00:18:24.927
The answer I got was, "No."
350
00:18:27.210 --> 00:18:29.383
So I think circumstantially,
351
00:18:29.383 --> 00:18:31.860
when you put all of that together,
352
00:18:31.860 --> 00:18:34.530
do we have enough to get over the bar of summary judgment
353
00:18:34.530 --> 00:18:37.200
looking at a light most favorable to the plaintiff,
354
00:18:37.200 --> 00:18:40.863
and do we have potentially preponderance of the evidence?
355
00:18:41.880 --> 00:18:44.550
I think the trier of fact could conclude,
356
00:18:44.550 --> 00:18:46.890
could very well conclude on this evidence.
357
00:18:46.890 --> 00:18:47.740
Trial court knew.
358
00:18:49.050 --> 00:18:50.879
I don't know, I'm way over.
359
00:18:50.879 --> 00:18:53.088
Unless the court has some further questions.
360
00:18:53.088 --> 00:18:55.140
Is there anything in the record indicating
361
00:18:55.140 --> 00:18:56.730
whether you had a follow-up deposition
362
00:18:56.730 --> 00:18:59.850
with the person you now are saying lied to you?
363
00:18:59.850 --> 00:19:04.680
No, that's the last deposition that I took,
364
00:19:04.680 --> 00:19:07.320
was the individual who said he had the conversation
365
00:19:07.320 --> 00:19:10.170
that I indicated to.
366
00:19:10.170 --> 00:19:13.263
Was there something that precluded you from going back?
367
00:19:14.640 --> 00:19:16.080
I'm not sure whether we were running up
368
00:19:16.080 --> 00:19:17.910
against a discovery deadline or not, Judge.
369
00:19:17.910 --> 00:19:18.743
I don't know.
370
00:19:18.743 --> 00:19:21.513
But you didn't ask for an extension, for example,
371
00:19:23.160 --> 00:19:24.750
of any deadline.
372
00:19:24.750 --> 00:19:27.166
No, I did not ask for any extension.
373
00:19:27.166 --> 00:19:29.970
At the conclusion of this deposition
374
00:19:29.970 --> 00:19:33.191
of the individual who told me this right at the end,
375
00:19:33.191 --> 00:19:36.570
and council and I had some words about it,
376
00:19:36.570 --> 00:19:38.970
is that I did leave it open.
377
00:19:38.970 --> 00:19:40.830
I didn't conclude the deposition,
378
00:19:40.830 --> 00:19:43.414
but other than that, there was no other follow up.
379
00:19:43.414 --> 00:19:47.390
Okay, thank you.
Thank you.
380
00:19:51.250 --> 00:19:52.743
Okay, Attorney Ernst.
381
00:19:57.330 --> 00:19:59.190
Thank you, Madam Chief Justice.
382
00:19:59.190 --> 00:20:02.010
Good morning, Your Honors, and may it please the court,
383
00:20:02.010 --> 00:20:06.000
Ben Ernst on behalf of the Trial Court Department.
384
00:20:06.000 --> 00:20:09.183
With me today is Assistant Attorney General Dan Cromack.
385
00:20:11.190 --> 00:20:16.190
The actions of former court officer Martinez are horrific,
386
00:20:18.690 --> 00:20:22.953
indisputably horrific, but as awful as those actions were,
387
00:20:23.970 --> 00:20:26.400
superior court here correctly concluded
388
00:20:26.400 --> 00:20:29.400
that the negligence claim against the trial court
389
00:20:29.400 --> 00:20:32.820
for failure to prevent those horrific acts
390
00:20:32.820 --> 00:20:34.980
is barred by sovereign immunity.
391
00:20:34.980 --> 00:20:38.010
I'd like to start, if I could, with 10-J
392
00:20:38.010 --> 00:20:42.900
and the questions that were being addressed to my brother.
393
00:20:42.900 --> 00:20:45.510
Particularly, it would be helpful if you addressed
394
00:20:45.510 --> 00:20:48.573
this back and forth about 781.
395
00:20:49.530 --> 00:20:50.640
Certainly, Your Honor.
396
00:20:50.640 --> 00:20:54.270
This confusion is nothing more than confusion.
397
00:20:54.270 --> 00:20:57.660
It was undisputed for the purposes of summary judgment
398
00:20:57.660 --> 00:21:00.780
that the trial court had no knowledge,
399
00:21:00.780 --> 00:21:05.490
tragically had no knowledge of these 2009 or 2014 incidents
400
00:21:05.490 --> 00:21:07.470
until April, 2015.
401
00:21:07.470 --> 00:21:10.560
I say tragically because they were bravely reported
402
00:21:10.560 --> 00:21:13.560
by Misto in 2009 to New Hampshire authorities,
403
00:21:13.560 --> 00:21:16.380
who failed to transmit that report to Massachusetts.
404
00:21:16.380 --> 00:21:17.490
How do we know?
405
00:21:17.490 --> 00:21:18.668
Go ahead.
406
00:21:18.668 --> 00:21:21.210
Justice Wendlandt, go ahead.
407
00:21:21.210 --> 00:21:26.210
On 779, it does appear that there is testimony
408
00:21:28.440 --> 00:21:33.180
to the effect that there was knowledge
409
00:21:33.180 --> 00:21:38.180
of some Massachusetts authority and an investigation done,
410
00:21:38.910 --> 00:21:41.610
and that is part of the record.
411
00:21:41.610 --> 00:21:45.690
I'm wondering if that's true, how it's possible
412
00:21:45.690 --> 00:21:50.340
that it's undisputed that until April, 2015,
413
00:21:50.340 --> 00:21:52.440
the trial court had no knowledge.
414
00:21:52.440 --> 00:21:55.350
Let me address that specific confusion.
415
00:21:55.350 --> 00:21:57.510
In this deposition that was discussed
416
00:21:57.510 --> 00:21:58.800
in my brother's argument,
417
00:21:58.800 --> 00:22:01.166
Mr. Connolly is asked the question.
418
00:22:01.166 --> 00:22:03.757
I think the back and forth begins with the question,
419
00:22:03.757 --> 00:22:06.810
"Other than the 2014 incident, sir,
420
00:22:06.810 --> 00:22:09.090
are you aware of any other incidents
421
00:22:09.090 --> 00:22:11.280
involving Mr. Martinez?"
422
00:22:11.280 --> 00:22:15.420
And he says, "Well, I heard as part of my preparation
423
00:22:15.420 --> 00:22:18.120
for this deposition that there was a 2009 incident.
424
00:22:18.120 --> 00:22:19.680
I wasn't aware of that before."
425
00:22:19.680 --> 00:22:23.310
He's referring to the 2009 incidents at issue in this case,
426
00:22:23.310 --> 00:22:25.680
and what he's referring to is the fact
427
00:22:25.680 --> 00:22:28.800
that those incidents occurred, not that the trial court
428
00:22:28.800 --> 00:22:32.880
had knowledge of those incidents prior to 2014.
429
00:22:32.880 --> 00:22:35.520
I think that's absolutely clear from the record,
430
00:22:35.520 --> 00:22:37.560
which admittedly is a bit confusing,
431
00:22:37.560 --> 00:22:38.910
but you can look at the testimony.
432
00:22:38.910 --> 00:22:41.010
He says, "I spoke with a colleague of mine
433
00:22:41.010 --> 00:22:43.590
who is also being deposed, Mr. McPherson.
434
00:22:43.590 --> 00:22:44.970
We were chatting, and I said, gosh,
435
00:22:44.970 --> 00:22:47.250
I never heard about these 2009 incidents."
436
00:22:47.250 --> 00:22:52.250
What about the July, 2013 complaint by another detainee?
437
00:22:52.863 --> 00:22:55.650
That complaint was investigated
438
00:22:55.650 --> 00:22:57.180
by the Lawrence Police Department,
439
00:22:57.180 --> 00:23:00.300
and what the record shows is not only was the complaint
440
00:23:00.300 --> 00:23:02.550
investigated by the Lawrence PD,
441
00:23:02.550 --> 00:23:05.250
but the trial court assisted with that investigation,
442
00:23:05.250 --> 00:23:07.320
including by pulling and reviewing
443
00:23:07.320 --> 00:23:10.680
the available security footage of that incident.
444
00:23:10.680 --> 00:23:12.240
Based on that investigation,
445
00:23:12.240 --> 00:23:14.760
the complaint could not be substantiated,
446
00:23:14.760 --> 00:23:18.060
and when we don't have a substantiated complaint against
447
00:23:18.060 --> 00:23:20.910
Mr. Martinez in 2013.
The 2013 incident
448
00:23:20.910 --> 00:23:25.590
says that the groping happens after he leaves,
449
00:23:25.590 --> 00:23:27.633
after she leaves the elevator, right?
450
00:23:28.710 --> 00:23:29.945
That's correct, Your Honor.
451
00:23:29.945 --> 00:23:34.945
And the video is of the elevator.
452
00:23:37.967 --> 00:23:40.860
I read also the police report goes further
453
00:23:40.860 --> 00:23:43.140
and says that there would be people
454
00:23:43.140 --> 00:23:45.750
standing outside of that area.
455
00:23:45.750 --> 00:23:47.493
Is that what we should rely on?
456
00:23:49.680 --> 00:23:52.770
It's just, looking at an elevator video
457
00:23:52.770 --> 00:23:54.600
when you know that the groping occurred
458
00:23:54.600 --> 00:23:58.890
after he left the elevator isn't that helpful, is it?
459
00:23:58.890 --> 00:24:00.240
What I would say, Your Honor,
460
00:24:00.240 --> 00:24:02.580
is that the trial court assisted
461
00:24:02.580 --> 00:24:04.620
the Lawrence Police Department in the investigation.
462
00:24:04.620 --> 00:24:06.870
They were asked to pull the video.
463
00:24:06.870 --> 00:24:09.000
My understanding is they pulled what they had,
464
00:24:09.000 --> 00:24:10.320
and when they reviewed that video,
465
00:24:10.320 --> 00:24:12.630
that video didn't help substantiate this complaint.
466
00:24:12.630 --> 00:24:13.770
But the Lawrence Police Department
467
00:24:13.770 --> 00:24:15.648
was running the investigation.
468
00:24:15.648 --> 00:24:18.990
Your position is, when we look thoroughly
469
00:24:18.990 --> 00:24:21.570
through this record, the only thing we're going to find
470
00:24:21.570 --> 00:24:25.770
as far as prior knowledge of anything amiss with Martinez
471
00:24:25.770 --> 00:24:30.540
is this July, 2013, another detainee investigation
472
00:24:30.540 --> 00:24:31.860
that was unsubstantiated.
473
00:24:31.860 --> 00:24:33.060
That's correct, Your Honor.
474
00:24:33.060 --> 00:24:35.464
That's your position?
It is,
475
00:24:35.464 --> 00:24:37.462
and I'd like to point out that.
476
00:24:37.462 --> 00:24:40.140
If we don't agree with you
477
00:24:40.140 --> 00:24:42.589
and we find that there is notice,
478
00:24:42.589 --> 00:24:47.589
does that preclude your 10-J defense?
479
00:24:48.330 --> 00:24:50.100
I don't think it does, Justice Gaziano,
480
00:24:50.100 --> 00:24:51.840
and that's the point that I'd like to address now.
481
00:24:51.840 --> 00:24:55.380
I think this court has shown in decisions like Brum
482
00:24:55.380 --> 00:24:57.390
and decisions like Cormier,
483
00:24:57.390 --> 00:25:00.035
that mere knowledge of a dangerous situation,
484
00:25:00.035 --> 00:25:04.140
even extreme knowledge that a student is going to be stabbed
485
00:25:04.140 --> 00:25:07.170
that day in your school, that knowledge alone
486
00:25:07.170 --> 00:25:10.560
is never enough to transform a failure to act
487
00:25:10.560 --> 00:25:12.330
into an affirmative act.
488
00:25:12.330 --> 00:25:14.250
Except here we're putting,
489
00:25:14.250 --> 00:25:18.000
the trial court is putting this known dangerous person,
490
00:25:18.000 --> 00:25:20.193
assuming the record substantiates that,
491
00:25:21.840 --> 00:25:24.813
in charge of an extremely vulnerable person.
492
00:25:27.615 --> 00:25:31.771
I don't understand why that's not an affirmative act
493
00:25:31.771 --> 00:25:34.366
that really is actually creating the condition
494
00:25:34.366 --> 00:25:37.020
that caused the harm.
495
00:25:37.020 --> 00:25:38.670
To answer your question,
496
00:25:38.670 --> 00:25:40.320
and not to fight your hypothetical,
497
00:25:40.320 --> 00:25:42.990
but of course that's not our case.
498
00:25:42.990 --> 00:25:44.493
We'll go back in the record.
Even if it were the case
499
00:25:44.493 --> 00:25:46.320
that the trial court did have knowledge,
500
00:25:46.320 --> 00:25:49.890
you would still need to identify an affirmative act
501
00:25:49.890 --> 00:25:51.630
that materially contributed,
502
00:25:51.630 --> 00:25:54.660
and here there's no record evidence
503
00:25:54.660 --> 00:25:58.863
that Mr. Martinez was directed to engage with Ms. Doe.
504
00:26:00.090 --> 00:26:01.500
They don't have to go that far, right?
505
00:26:01.500 --> 00:26:06.500
If the trial court knows he's sort of a serial groper,
506
00:26:08.070 --> 00:26:12.120
or even knows he's groped a detainee in the past
507
00:26:12.120 --> 00:26:17.120
and then they put him alone with a female detainee,
508
00:26:19.710 --> 00:26:24.710
isn't that enough to get to the affirmative act exception?
509
00:26:29.220 --> 00:26:30.300
It very well may be.
510
00:26:30.300 --> 00:26:32.160
That hypothetical scenario, Your Honor,
511
00:26:32.160 --> 00:26:33.270
which is not this case.
512
00:26:33.270 --> 00:26:34.860
That very well may be.
513
00:26:34.860 --> 00:26:38.280
I get it, if they have no notice,
514
00:26:38.280 --> 00:26:41.040
it's not an affirmative act, but if they do have notice,
515
00:26:41.040 --> 00:26:43.410
it may very well be an affirmative act, right?
516
00:26:43.410 --> 00:26:47.010
Right, and I think the Bonnie W. cases illustrates this,
517
00:26:47.010 --> 00:26:50.580
and Bonnie W., what this court held was that there was no
518
00:26:50.580 --> 00:26:52.350
10-J barred the claim
519
00:26:52.350 --> 00:26:55.020
that was solely based on a failure to supervise.
520
00:26:55.020 --> 00:26:57.030
But because the parole officer in that case
521
00:26:57.030 --> 00:26:59.310
had knowledge that the individual was dangerous,
522
00:26:59.310 --> 00:27:02.400
he knew that he was a sexually violent person.
523
00:27:02.400 --> 00:27:05.610
To take that knowledge and then affirmatively recommend
524
00:27:05.610 --> 00:27:07.290
to the trailer park where he was employed,
525
00:27:07.290 --> 00:27:09.090
you should continue to employ this person.
526
00:27:09.090 --> 00:27:11.550
That's an affirmative act, and it's enough to meet
527
00:27:11.550 --> 00:27:13.590
the material contribution standard
528
00:27:13.590 --> 00:27:14.820
because of that knowledge.
529
00:27:14.820 --> 00:27:16.487
The reason why our case is distinguishable
530
00:27:16.487 --> 00:27:18.600
is because we don't have that knowledge
531
00:27:18.600 --> 00:27:21.000
and we don't have an affirmative act.
532
00:27:21.000 --> 00:27:23.760
If he did have that knowledge, would you still have
533
00:27:23.760 --> 00:27:27.090
the discretionary function available to you?
534
00:27:27.090 --> 00:27:30.360
We would, Your Honor, and I'm happy to address 10-B.
535
00:27:30.360 --> 00:27:33.180
One last question on the 10-J before you do.
536
00:27:33.180 --> 00:27:37.680
This 2009 complaint, assume for the sake of argument
537
00:27:37.680 --> 00:27:41.104
that there's enough specificity to say
538
00:27:41.104 --> 00:27:44.670
that that could be localized back to the trial court.
539
00:27:44.670 --> 00:27:46.440
I thought there was an investigation
540
00:27:46.440 --> 00:27:50.253
and they found they couldn't substantiate that complaint.
541
00:27:51.090 --> 00:27:53.400
Am I wrong about that record?
542
00:27:53.400 --> 00:27:56.664
As a factual matter as to the 2009
543
00:27:56.664 --> 00:28:00.420
and the 2014 allegations, it's possible that that testimony
544
00:28:00.420 --> 00:28:03.360
refers to the criminal proceedings against Mr. Martinez,
545
00:28:03.360 --> 00:28:07.050
who immediately after the 2014 incidents,
546
00:28:07.050 --> 00:28:09.420
which were reported to trial court, learned about them,
547
00:28:09.420 --> 00:28:13.050
this individual was no longer employed by the trial court.
548
00:28:13.050 --> 00:28:14.550
He was criminally prosecuted.
549
00:28:14.550 --> 00:28:18.210
I'm just speaking about the 2009 complaint
550
00:28:18.210 --> 00:28:20.610
to the New Hampshire authorities
551
00:28:20.610 --> 00:28:24.030
and what happened with that complaint,
552
00:28:24.030 --> 00:28:25.440
if that's in the record.
553
00:28:25.440 --> 00:28:27.630
My memory was that it was investigated
554
00:28:27.630 --> 00:28:28.980
and they didn't find anything.
555
00:28:28.980 --> 00:28:30.330
I don't believe that's correct, Your Honor.
556
00:28:30.330 --> 00:28:31.800
I think that what the record shows
557
00:28:31.800 --> 00:28:34.110
is it was simply never transmitted
558
00:28:34.110 --> 00:28:35.790
to a Massachusetts authority,
559
00:28:35.790 --> 00:28:37.680
and this was part of the civil case
560
00:28:37.680 --> 00:28:41.520
that appellant brought against that New Hampshire prison
561
00:28:41.520 --> 00:28:43.500
for failure to transmit that report.
562
00:28:43.500 --> 00:28:45.750
That case ended in a settlement with the prison.
563
00:28:45.750 --> 00:28:46.583
Thank you.
564
00:28:46.583 --> 00:28:48.870
On 10-B, is it your argument
565
00:28:48.870 --> 00:28:51.542
that our failure to implement PREA
566
00:28:51.542 --> 00:28:55.170
takes us out of discretionary function?
567
00:28:55.170 --> 00:28:58.320
It does not take us out of discretionary function,
568
00:28:58.320 --> 00:29:03.320
because PREA at the time, both in 2009
569
00:29:03.720 --> 00:29:05.640
when there were no PREA guidelines
570
00:29:05.640 --> 00:29:08.160
and in 2014 when there were PREA guidelines,
571
00:29:08.160 --> 00:29:09.840
but Massachusetts, the Commonwealth,
572
00:29:09.840 --> 00:29:12.090
had permissibly submitted an assurance
573
00:29:12.090 --> 00:29:13.860
that says we are working toward it,
574
00:29:13.860 --> 00:29:17.160
that Massachusetts and along with 41 other states
575
00:29:17.160 --> 00:29:19.020
in the nation had submitted that assurance.
576
00:29:19.020 --> 00:29:22.470
So PREA didn't prescribe any specific course of conduct,
577
00:29:22.470 --> 00:29:24.557
either in 2009 or in 2014.
578
00:29:24.557 --> 00:29:26.700
It has to be a statute of regulation
579
00:29:26.700 --> 00:29:29.220
or established practice that we failed to follow,
580
00:29:29.220 --> 00:29:33.060
and you're saying that because we hadn't fully adopted PREA,
581
00:29:38.850 --> 00:29:41.670
there's no standard, so anything the Commonwealth did
582
00:29:41.670 --> 00:29:42.690
was discretionary.
583
00:29:42.690 --> 00:29:43.523
That's right.
584
00:29:43.523 --> 00:29:45.060
At step one of the analysis, Your Honor,
585
00:29:45.060 --> 00:29:47.910
we would say that there is no statute of regulation
586
00:29:47.910 --> 00:29:49.770
that strips us of our discretion,
587
00:29:49.770 --> 00:29:53.220
and the trial court maintains great and weighty discretion
588
00:29:53.220 --> 00:29:56.280
to implement security policies throughout the trial courts
589
00:29:56.280 --> 00:29:57.120
and the Commonwealth
590
00:29:57.120 --> 00:29:59.520
to protect people visiting the courthouse,
591
00:29:59.520 --> 00:30:01.621
to protect detainees, to protect judges.
592
00:30:01.621 --> 00:30:06.621
Including a failure to use same gender matrons, et cetera.
593
00:30:08.190 --> 00:30:09.023
Right.
594
00:30:09.023 --> 00:30:11.130
So the policies which are in the record,
595
00:30:11.130 --> 00:30:12.567
the policies that were in place,
596
00:30:12.567 --> 00:30:15.174
which are in the record in this case,
597
00:30:15.174 --> 00:30:18.510
don't require that every single instance
598
00:30:18.510 --> 00:30:20.400
when a female detainee is transported,
599
00:30:20.400 --> 00:30:23.400
that she be transported by another female detainee.
600
00:30:23.400 --> 00:30:26.400
The record is quite clear about why that's the case.
601
00:30:26.400 --> 00:30:28.590
These policies were the product
602
00:30:28.590 --> 00:30:31.290
of a deep deliberative decision making process.
603
00:30:31.290 --> 00:30:32.820
There's a policy committee.
604
00:30:32.820 --> 00:30:34.620
That policy committee is listed
605
00:30:34.620 --> 00:30:35.880
in each one of those policies.
606
00:30:35.880 --> 00:30:37.770
The policies are put together by the committee,
607
00:30:37.770 --> 00:30:38.610
and what are they doing?
608
00:30:38.610 --> 00:30:40.740
They're weighing alternatives.
609
00:30:40.740 --> 00:30:42.540
They're weighing the resource constraints
610
00:30:42.540 --> 00:30:45.480
that the trial courts have and making those tough decisions.
611
00:30:45.480 --> 00:30:48.330
That's the core of what 10-B protects.
612
00:30:48.330 --> 00:30:52.320
It's the core of what the Whitney case said.
613
00:30:52.320 --> 00:30:55.050
We shouldn't be questioning those judgments in a tort case,
614
00:30:55.050 --> 00:30:56.490
because of the deleterious effects
615
00:30:56.490 --> 00:30:58.230
that that could have on the process.
616
00:30:58.230 --> 00:31:01.320
Could you answer Justice Wendlandt's question
617
00:31:01.320 --> 00:31:05.220
about the relationship between the discretionary function
618
00:31:05.220 --> 00:31:09.371
and the affirmative act?
619
00:31:09.371 --> 00:31:14.371
If there's knowledge that he's a groper,
620
00:31:16.950 --> 00:31:21.950
even though the overall management of the courthouse
621
00:31:23.010 --> 00:31:24.406
is a discretionary function,
622
00:31:24.406 --> 00:31:27.723
that doesn't protect you, does it?
623
00:31:28.694 --> 00:31:33.480
He'd still have the affirmative act.
624
00:31:33.480 --> 00:31:34.800
I'm trying to understand the relationship,
625
00:31:34.800 --> 00:31:37.110
just because it doesn't meet the,
626
00:31:37.110 --> 00:31:40.500
just because the PREA, whatever it is,
627
00:31:40.500 --> 00:31:44.493
doesn't satisfy the discretionary function issue.
628
00:31:45.900 --> 00:31:49.650
There's still this affirmative act avenue
629
00:31:49.650 --> 00:31:51.870
if you have knowledge, right?
630
00:31:51.870 --> 00:31:55.050
I would agree that the immunities in Section 10
631
00:31:55.050 --> 00:31:57.183
operate independently of one another.
632
00:31:59.480 --> 00:32:04.480
If he doesn't satisfy the 10-B requirements,
633
00:32:07.659 --> 00:32:12.177
that doesn't protect you from the issue under 10-J, right?
634
00:32:13.470 --> 00:32:15.150
Right, and put another way, Your Honor,
635
00:32:15.150 --> 00:32:18.360
if 10-J bars this claim,
636
00:32:18.360 --> 00:32:20.580
it doesn't matter whether 10-B applies or not,
637
00:32:20.580 --> 00:32:21.413
and vice versa.
638
00:32:21.413 --> 00:32:24.780
If 10-B bars the claim.
But you have to establish
639
00:32:24.780 --> 00:32:27.150
either 10-B or 10-J.
That's right, Your Honor.
640
00:32:27.150 --> 00:32:28.470
That's correct, Your Honor,
641
00:32:28.470 --> 00:32:31.380
and that comes from this court's decision in the Brum case.
642
00:32:31.380 --> 00:32:32.520
I want to follow up on that,
643
00:32:32.520 --> 00:32:36.750
because he's got different theories of liability.
644
00:32:36.750 --> 00:32:39.060
He's got the liability theory,
645
00:32:39.060 --> 00:32:42.000
look, you should have been doing what PREA is doing,
646
00:32:42.000 --> 00:32:45.330
but he also has a separate theory of liability,
647
00:32:45.330 --> 00:32:47.280
which is you knew he was a groper
648
00:32:47.280 --> 00:32:50.790
and you put him with her.
649
00:32:50.790 --> 00:32:54.693
Just because the PREA stuff doesn't get you,
650
00:32:55.650 --> 00:33:00.650
just because he doesn't meet that prong, he can still,
651
00:33:01.110 --> 00:33:02.340
that doesn't protect you
652
00:33:02.340 --> 00:33:06.510
from the knowing groper issue, does it?
653
00:33:06.510 --> 00:33:07.932
I would cripple with that.
I don't mean,
654
00:33:07.932 --> 00:33:09.540
I don't know the answer.
655
00:33:09.540 --> 00:33:11.040
It's a question.
Certainly, Your Honor.
656
00:33:11.040 --> 00:33:13.950
I would just tweak the framing there,
657
00:33:13.950 --> 00:33:16.500
and what I would say is I do believe
658
00:33:16.500 --> 00:33:19.754
that the appellant's claim in this case
659
00:33:19.754 --> 00:33:22.230
was predicated on alleged failures
660
00:33:22.230 --> 00:33:23.610
of the trial court to act.
661
00:33:23.610 --> 00:33:24.810
What failures?
662
00:33:24.810 --> 00:33:27.660
It was consistently throughout the case, in discovery,
663
00:33:27.660 --> 00:33:30.510
in the complaint stage, it was a failure
664
00:33:30.510 --> 00:33:33.390
to implement particular security policies,
665
00:33:33.390 --> 00:33:35.250
failure to design security policies
666
00:33:35.250 --> 00:33:37.020
that could have prevented these assaults.
667
00:33:37.020 --> 00:33:40.260
And so while there is this allegation now on appeal
668
00:33:40.260 --> 00:33:41.430
that an affirmative act here
669
00:33:41.430 --> 00:33:44.400
was the failure to remove Mr. Martinez,
670
00:33:44.400 --> 00:33:46.710
that's always throughout the litigation been cashed out
671
00:33:46.710 --> 00:33:50.100
in terms of you ought to have had a different type of policy
672
00:33:50.100 --> 00:33:52.230
that would've allowed you to earlier detect
673
00:33:52.230 --> 00:33:55.620
Martinez's behavior or take him out of the equation.
674
00:33:55.620 --> 00:33:59.013
But if you had a cause of action that made it clear
675
00:33:59.013 --> 00:34:03.150
that we are not alleging anything wrong with the policy
676
00:34:03.150 --> 00:34:06.450
in this particular count of the complaint.
677
00:34:06.450 --> 00:34:08.550
What we are complaining about here
678
00:34:08.550 --> 00:34:12.210
is that you affirmatively caused this.
679
00:34:12.210 --> 00:34:15.330
10-B doesn't prevent the cause of action.
680
00:34:15.330 --> 00:34:17.299
I would agree with that, Your Honor.
681
00:34:17.299 --> 00:34:20.520
If there were two distinct theories of negligence,
682
00:34:20.520 --> 00:34:22.173
there's a scenario in which you could imagine
683
00:34:22.173 --> 00:34:25.493
that one of those theories surviving, even if 10-B applies.
684
00:34:25.493 --> 00:34:28.560
That's not clear in this complaint from your perspective.
685
00:34:28.560 --> 00:34:29.790
It's not clear in this complaint,
686
00:34:29.790 --> 00:34:31.140
it's not been clear in discovery,
687
00:34:31.140 --> 00:34:33.930
and I would also say it's never been raised by appellant
688
00:34:33.930 --> 00:34:37.770
at any stage in this case, least of all on appeal here,
689
00:34:37.770 --> 00:34:39.240
that there's some slice of the theory
690
00:34:39.240 --> 00:34:42.240
that should survive even if 10-B applies.
691
00:34:42.240 --> 00:34:44.100
I see that I'm close to out of time,
692
00:34:44.100 --> 00:34:46.793
and if there are no more questions, I'll rest on the briefs.