ROBERT JAMES O'BRIEN v. KIRK RUSSELL & Others. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule
1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to
the parties and, therefore, may not fully address the facts of the case or the
panel's decisional rationale. Moreover, such decisions are not circulated to
the entire court and, therefore, represent only the views of the panel that
decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued
after February 25, 2008, may be cited for its persuasive value but, because of
the limitations noted above, not as binding precedent. See Chace v. Curran, 71
Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-805
ROBERT JAMES O'BRIEN 1
vs.
KIRK RUSSELL & others. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Robert James O'Brien, brought this action on
his own behalf and as personal representative of the estate of
Stacey Fenton claiming negligence under the Massachusetts Torts
Claims Act (MTCA), G. L. c. 258, against the Department of
Children and Families (DCF), and violations of his
constitutional rights under the Massachusetts Civil Rights Act
(MCRA), G. L. c. 12, § 11I, against four DCF employees in their
1 Individually and as personal representative of the estate
of Stacey Fenton.
2 Catherine Dwelly, Jacque Carl, Marcia Roddy, and the
Department of Children and Families.
individual capacities. 3 As we discuss in more detail below, the
claims arose from an unfortunate mistake. O'Brien was living
with Fenton and her minor son in Fenton's home. The son was the
subject of an open DCF case. In conducting a routine background
check, DCF misidentified O'Brien as a person who had a history
with DCF involving the sexual abuse of a child. O'Brien was
asked to leave the home and was not permitted to return until
four months later when, on further investigation, DCF
acknowledged its error.
Prior to trial, the judge reserved the individual
defendants' claims of qualified immunity under the MCRA and
DCF's claim of immunity under the discretionary function
exemption to the MTCA, G. L. c. 258, § 10 (b). The case
proceeded and the jury returned a verdict in favor of O'Brien on
his negligence claim against DCF, and on his MCRA claim against
two of the four DCF employees. 4 The defendants then moved for
judgment notwithstanding the verdict, or, in the alternative,
judgment based on their immunity defenses. DCF also argued that
3 O'Brien sought damages, attorney's fees, and a permanent
injunction barring the defendants from taking or threatening to
take Fenton's child if O'Brien occupies the home.
4 Additional claims brought under the MCRA based on
O'Brien's allegation of an unconstitutional seizure, and the
estate of Stacey Fenton's allegation of an unconstitutional
search, were not submitted to the jury and were later dismissed.
O'Brien does not raise any issues with respect to these claims
on appeal.
2
the economic loss rule barred recovery on O'Brien's negligence
claim. 5 The judge granted the motion, and O'Brien appeals from
the ensuing judgment. We affirm. 6
Background. We recite the facts that the jury could have
found in the light most favorable to the nonmoving party, the
plaintiff. O'Brien v. Pearson, 449 Mass. 377, 383 (2007). In
early 2015, O'Brien was living with Fenton and her ten year old
son, who was autistic. 7 At that time, there was an open DCF case
involving the child's biological father. The case did not
involve any allegations of abuse or neglect against Fenton or
O'Brien. The DCF ongoing social worker assigned to the case,
Kirk Russell, learned that O'Brien was living with the child.
Per DCF policy, Russell conducted a background check on O'Brien,
for which he used the name "Robert J. O'Brien" and O'Brien's
date of birth. The background check suggested that O'Brien had
a criminal history, and that someone with the same first and
last name, middle initial, and date of birth had a history with
5 In addition, the defendants argued that O'Brien could not
recover on both his negligence and civil rights claims as doing
so would amount to a double recovery. However, the judge did
not address this argument.
6 O'Brien also appeals from the judge's denial of his motion
for attorney's fees. Because we affirm the judgment, we also
affirm the denial of this motion.
7 Although O'Brien did not make any payments toward rent,
nor was his name on the lease of the premises, there is no
dispute that he was residing in the home with Fenton's
permission.
3
DCF. On further inquiry, Russell's supervisor, Catherine
Dwelly, discovered that DCF previously had substantiated a
report of sexual abuse of a minor child by a Robert O'Brien in
2006. See G. L. c. 119, §§ 51A and 51B. The perpetrator in
that case was described as white, English speaking, in his
forties, residing in Medford, and missing front teeth -- a
description that in many respects matched that of O'Brien the
plaintiff. 8
Dwelly believed that both the criminal and DCF history
related to O'Brien (the plaintiff) and therefore, she shared the
results of the background check with her supervisor, Jacque
Carl. The two then developed a "safety plan" 9 for the child as a
preventative measure even though DCF had no reason to believe
that O'Brien had abused or neglected Fenton's son. Carl
instructed Dwelly to call Russell regarding the safety plan, and
The only notable difference was that plaintiff O'Brien was
8
born in Medford and lived in Medford around 2005, but he did not
live there in 2006. However, DCF was only aware that O'Brien
had lived in Medford, as well as the nearby town of Malden, at
some point. In addition, although DCF did not know it, O'Brien
had two false front teeth. DCF attempted to obtain information
about O'Brien's teeth, but he refused to provide it. Thus, at
the time DCF asked O'Brien to leave Fenton's home, DCF had only
confirmed that he was white and English speaking, had a prior
Medford residence, and would have been in his forties in 2006.
There are no formal policies, procedures, regulations, or
9
laws regarding DCF's use of safety plans. Rather, a "safety
plan" is an informal term used to describe DCF's attempts to
quickly address safety concerns that do not rise to the level of
abuse or neglect, as well as to prevent future abuse or neglect
of children.
4
direct Russell to ask Fenton to have O'Brien leave the home.
Dwelly did so and Russell promptly visited the home to inform
O'Brien of DCF's concerns regarding the supported allegations of
sexual abuse by Robert O'Brien in 2006, which O'Brien
emphatically denied was him. Russell did not provide O'Brien
with any documentation or further details regarding the
allegations, but he told O'Brien to leave the home that day. He
further told O'Brien that if he did not vacate the premises,
then DCF would initiate a legal consultation to determine
potential next steps, one of which was the possibility of DCF
filing a complaint in the Juvenile Court to obtain custody of
Fenton's child. Russell requested identifying information and
proof of prior residences from O'Brien, who provided only his
driver's license. O'Brien declined to provide his social
security number and informed Russell that he would like to
consult with his attorney. 10 Russell told O'Brien that if there
was a mistake, then it would be cleared up within a couple days.
On the assumptions that the situation would be resolved
quickly and that he had no choice in the matter, O'Brien packed
a bag for a few days and left the home that night. However, it
took four months (and the initiation of this lawsuit) for DCF to
10The jury found O'Brien 25% contributorily negligent for
choosing not to provide DCF with more information that could
have excluded him as the person described in the 2006 case.
5
determine that O'Brien was not the same Robert O'Brien who
sexually abused a child in 2006, and for DCF to allow him to
return to Fenton's home. 11 As a result, O'Brien incurred
substantial expenses for lodging, food, and gasoline.
Additionally, O'Brien suffered feelings of sadness, shock,
anger, distrust in authority, powerlessness, isolation, and
depression, for which he sought counseling at the Veteran's
Administration.
As noted, the jury returned a partial verdict in favor of
O'Brien. In response to questions on a special verdict form,
the jury found that DCF was not negligent in asking O'Brien to
leave the house but was negligent for failing for four months to
determine that he was not the individual with a DCF history.
The jury further found that Roddy and Carl did not interfere or
attempt to interfere with O'Brien's right to enjoy his property
without due process of law by threats, intimidation, or
coercion, but that Russell and Dwelly were liable under the MCRA
for violations of O'Brien's rights to liberty and property
without due process under arts. 10 and 12 of the Massachusetts
Declaration of Rights.
11Shortly after O'Brien filed this lawsuit in August of
2015, Carl asked for assistance from his supervisor, Marcia
Roddy, who suggested contacting the mother of the child involved
in the 2006 case. The mother ultimately provided information
that confirmed DCF's mistake, which prompted DCF to withdraw the
safety plan.
6
The defendants then moved for judgment notwithstanding the
verdict, which the judge granted. In ruling on the motion, the
judge concluded that Russell and Dwelly were entitled to
qualified immunity. The judge also concluded that DCF was not
entitled to discretionary function immunity because its "ad hoc
decision" to determine whether O'Brien was the same person with
a DCF history four months after asking him to leave Fenton's
home (and after O'Brien instituted legal proceedings) does not
fall within DCF's discretionary policy-making and planning
authority. The judge went on to conclude, however, that
although DCF did not have immunity, O'Brien could not recover on
his negligence claim because there was no evidence that he
suffered physical harm or property damage.
Discussion. "A ruling on a motion for judgment
notwithstanding the verdict presents a question of law that we
review under the same standard as the trial judge, construing
the evidence in the light most favorable to the nonmoving party
-- here, [O'Brien]." Biewald v. Seven Ten Storage Software,
Inc., 94 Mass. App. Ct. 376, 380 (2018). "The standard is
whether the evidence, construed against the defendants,
justifies the jury verdict against them." Id. "Our duty in
this regard is to evaluate whether anywhere in the evidence,
from whatever source derived, any combination of circumstances
7
could be found from which a reasonable inference could be made
in favor of [O'Brien]." Id., quoting O'Brien, 449 Mass. at 383.
O'Brien first claims that the judge erred by concluding
that Russell and Dwelly were entitled to qualified immunity.
The judge determined that even if DCF employees, namely Russell
and Dwelly, did violate O'Brien's rights to enjoy his property
under arts. 10 and 12 of the Massachusetts Declaration of
Rights, there was no controlling authority that would have put
them on notice that "safety planning" O'Brien out of the home
and failing to promptly investigate whether they had the right
person was unconstitutional, and an objectively reasonable DCF
employee would not have known such conduct violated O'Brien's
rights. We agree with the reasoning of the judge and reach the
same conclusion.
"It is well established that the MCRA incorporates the
standard of immunity for public officials developed under 42
U.S.C. § 1983, and accordingly 'public officials are not liable
under the [MCRA] for their discretionary acts, unless they have
violated a right under Federal or State constitutional or
statutory law that was clearly established at the time"
(quotation omitted). Williams v. O'Brien, 78 Mass. App. Ct.
169, 173 (2010), quoting Duarte v. Healy, 405 Mass. 43, 47
(1989). "A right is only clearly established if, at the time of
the alleged violation, 'the contours of the right allegedly
8
violated [were] sufficiently definite so that a reasonable
official would appreciate that the conduct in question was
unlawful.'" LaChance v. Commissioner of Correction, 463 Mass.
767, 777 (2012), S.C., 475 Mass. 757 (2016), quoting Longval v.
Commissioner of Correction, 448 Mass. 412, 419 (2007). "Put
another way, we must determine whether 'it would be clear to a
reasonable [DCF employee] that his conduct was unlawful in the
situation he confronted.'" Id., quoting Longval, supra.O'Brien has not cited, nor are we aware of any, authority
that supports his assertion that the DCF employees, including
Russell and Dwelly, violated clearly established law by "safety
planning" him out of the home, even in light of DCF's negligence
concerning the investigation into O'Brien. In fact, our review
of relevant case law supports a contrary conclusion. See, e.g.,
Piccone v. McClain, 586 Fed. Appx. 709, 710-711 (1st Cir. 2014),
cert. denied, 577 U.S. 847 (2015) (affirming granting of
qualified immunity to DCF employees who involuntarily removed
plaintiff from family home while investigating allegations of
abuse against him); Hatch v. Department for Children, Youth, &
Their Families, 274 F.3d 12, 22 (1st Cir. 2001) ("[T]he
government has a compelling interest in safeguarding children
that it suspects are victims of abuse and in acting quickly on
their behalf. . . . Circumstances frequently force them to make
difficult choices without time for extensive investigation . . .
9
and it is better to err on the side of caution than to do
nothing and await incontrovertible proof"); Wilmot v. Tracey,
938 F. Supp. 2d 116, 136-137 (D. Mass. 2013) (DCF did not
violate parent's constitutional rights by asking parent not to
return home while DCF investigated child abuse allegations).
Nor are we aware of any clearly established right to a timely,
thorough investigation to confirm the accuracy of the
information that prompted the removal. Thus, even if we were to
assume that O'Brien's constitutional rights were violated, as
the judge did, we cannot say that an objectively reasonable
person in the position of the DCF employees would have known
that their conduct amounted to a violation of O'Brien's rights.
Accordingly, we agree that Russell and Dwelly are entitled to
qualified immunity and, therefore, the judge properly entered
judgment in their favor.
Next, O'Brien claims that the judge erred by entering a
judgment notwithstanding the verdict on his MTCA claim against
DCF on the ground that the absence of evidence that he suffered
physical injury or property damage, the so-called "economic loss
rule," bars recovery. He argues that the rule does not apply to
tort claims against the government.
As an initial matter, DCF claims that O'Brien has waived
this argument, as he did not raise it below. See Carey v. New
England Organ Bank, 446 Mass. 270, 285 (2006), quoting Century
10
Fire & Marine Ins. Corp. v. Bank of New England-Bristol County,
N.A., 405 Mass. 420, 421 n.2 (1989) ("An issue not raised or
argued below may not be argued for the first time on appeal").
We agree. Our review of the record leads us to conclude that
O'Brien did not sufficiently object to the application of the
economic loss rule at any point and did not argue that the rule
itself does not apply to tort claims against government actors.
In any event, the argument has no merit. "The long-
standing rule in this Commonwealth . . . is that 'purely
economic losses are unrecoverable in tort . . . in the absence
of personal injury or property damage.'" Herbert A. Sullivan,
Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 413 (2003), quoting
FMR Corp. v. Boston Edison Co., 415 Mass. 393, 395 (1993). The
MTCA provides, in relevant part, "[p]ublic employers shall be
liable for injury or loss of property or personal injury or
death caused by the negligent or wrongful act or omission of any
public employee while acting within the scope of his office or
employment, in the same manner and to the same extent as a
private individual under like circumstances." G. L. c. 258,
§ 2. Because the economic loss rule applies to private
individuals, it applies to the public employers "in the same
manner and to the same extent." Id.
Here, there was no evidence that O'Brien suffered personal
injury or property damage as a result of DCF's negligence.
11
Therefore, the judge correctly determined that he could not
recover damages on his MTCA claim.
Judgment affirmed.
By the Court (Green, C.J.,
Vuono & Massing, JJ. 12),
Clerk
Entered: August 14, 2024.
12 The panelists are listed in order of seniority.
12