Sally R. Westgate v. Vibra Hospital of Southeastern Massachusetts, LLC.

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
22-P-329
SALLY R. WESTGATE
vs.
VIBRA HOSPITAL OF SOUTHEASTERN MASSACHUSETTS, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Contending that the trial judge impermissibly engaged in
fact finding about whether her injury was reasonably foreseeable
and erred by not applying the rescue doctrine, the plaintiff
appeals from the dismissal, pursuant to Mass. R. Civ. P. 12 (b)
(6), 365 Mass. 754 (1974), of her one-count complaint alleging
negligence by the defendant hospital. Because the allegations
in the complaint do not plausibly suggest that her injuries were
foreseeable, we affirm.
Background. We recite the facts as set forth in the
complaint. Bassichis v. Flores, 490 Mass. 143, 144 (2022).
While driving on an access road near the hospital, the plaintiff
noticed a woman "overturned on the asphalt in a wheelchair and
in distress." After stopping the car to help the woman, the
plaintiff "assessed that the woman was likely" a patient of the
hospital, and then "[ran] up the hill to get help" from the
hospital. In doing so, the plaintiff "tripped on a rock, got
turned around, and fell forward onto her face on the asphalt of
the access way," causing "serious bodily injury."
The plaintiff alleged that the hospital was negligent in
allowing "a patient to elope its facility before the patient was
properly discharged from care," and that the hospital
"negligently supervised and monitored its patient so as to cause
an elopement resulting in a dangerous situation," which invited
rescue.1 A Superior Court judge dismissed the complaint for
failure to state a claim upon which relief could be granted.
Discussion. We review the allowance of a motion to dismiss
de novo. Galiastro v. Mortgage Elec. Registration Sys., Inc.,
467 Mass. 160, 164 (2014). To survive a motion to dismiss, the
factual allegations must "plausibly suggest," not merely be
consistent with, an entitlement to relief. Id., quoting
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). "In
making this determination, we look beyond the conclusory
allegations in the complaint and focus on whether the factual
allegations plausibly suggest an entitlement to relief." Curtis
1 Assuming given the procedural posture that the woman in the
wheelchair was a patient, despite the absence of facts to
support such an inference or explain the basis for the
plaintiff's assessment, there are no facts in the complaint to
establish whether the patient eloped or was discharged from the
hospital. Nothing in our holding depends on this difference.
2
v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "We
accept as true the allegations in the complaint and draw every
reasonable inference in favor of the plaintiff." Id.To prevail on her negligence claim, the plaintiff must show
"that the hospital owed [her] a duty of reasonable care, that
the hospital breached the duty, that damage resulted, and that
there was a causal relation between the breach of duty and the
damage." Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39
(2009). The existence of a duty is a question of law which is
appropriately considered on a motion to dismiss. See id., at
40, 44; Remy v. MacDonald, 440 Mass. 675, 676 (2004) (claim of
negligence cannot be brought where no duty of care exists).
"Fundamentally, the existence of a duty of care depends upon the
foreseeability of a risk of harm that the defendant has an
ability to prevent." Heath-Latson v. Styller, 487 Mass. 581,
584 (2021). See Jupin v. Kask, 447 Mass. 141, 147 (2006)
("precondition to this duty is, of course, that the risk of harm
to another be recognizable or foreseeable"); Foley v. Boston
Hous. Auth., 407 Mass. 640, 646 (1990) ("no duty owed when the
risk [causing] injury is not one which could be reasonably
anticipated" [citation omitted]). Foreseeability defines both
the "limits of a duty of care and the limits of proximate
cause." Whittaker v. Saraceno, 418 Mass. 196, 198 (1994).
"Liability for conduct obtains only where the conduct is both a
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cause in fact of the injury and where the resulting injury is
within the scope of the foreseeable risk arising from the
negligent conduct." Leavitt, supra at 45.
1. Duty of care. "Absent a special relationship with a
person posing a risk, there is no duty to control another
person's conduct to prevent that person from causing harm to a
third party, and . . . there is no special relationship between
the hospital and the patient that would give rise to such a duty
in the circumstances of this case." Leavitt, 454 Mass. at 40-
41. This principle governs in the case at bar. Massachusetts
does not recognize "a duty to a third person of a medical
professional to control a patient (excluding a patient of a
mental health professional, . . .) arising from any claimed
special relationship between the medical professional and the
patient." Id. at 42. Because there is no allegation here that
the overturned person was the patient of a mental health
professional, the hospital owed the plaintiff no duty "to
control or detain the patient." Id. at 44.
2. Causation and foreseeability. Dismissal was also
appropriate because the plaintiff's injury was not "caused" by
the hospital since it was outside the scope of the foreseeable
risk from the hospital's conduct. Although typically a question
reserved for a jury, causation may be decided as a matter of law
"where there is no set of facts that could support a conclusion
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that the plaintiff's injuries were within the scope of
liability." Leavitt, 454 Mass. at 44-45, citing Kent v.
Commonwealth, 437 Mass. 312, 320, 322 (2002).
The plaintiff's injury arose not from the "same general
type of danger" that the hospital should have taken steps to
avoid, like harm to the patient or those injured by the patient,
but from "some other danger," i.e., the plaintiff's tripping on
a rock. Leavitt, 454 Mass. at 46. See Poskus v. Lombardo's of
Randolph, Inc., 423 Mass. 637, 640-641 (1996) (jury could not
find that officer's injuries, which were caused when car thief
resisted arrest, were within reasonably foreseeable risk of harm
created by defendant restaurant's negligence in allowing car to
be stolen).2
Because the complaint failed to establish foreseeability
2 This same analysis disposes of the plaintiff's rescue doctrine
theory. Although the plaintiff injured herself while trying to
help the patient, "not all injuries to rescuers are within the
scope of foreseeable risk: liability does not attach for
injuries suffered as a result of 'risks that would not be
anticipated to arise from the rescue.'" Leavitt, 454 Mass. at
47, quoting Restatement (Third) of Torts: Liability for
Physical Harm § 32 comment c, at 653 (Proposed Final Draft No.
1, 2005).
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sufficient to infer either the existence of a duty or causation,
we affirm the dismissal.
Judgment affirmed.
By the Court (Milkey, Walsh &
Hershfang, JJ.3),
Clerk
Entered: February 9, 2023.
3 The panelists are listed in order of seniority.
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