Paradis v. Frost

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22-P-775 Appeals Court

SHANNON PARADIS, personal representative,1 vs. MARTHA FROST &
another.2

No. 22-P-775.

Middlesex. June 8, 2023. - September 22, 2023.

Present: Blake, Walsh, & Hershfang, JJ.

School and School Committee, Regional school district. Social
Worker. Negligence, Licensed independent clinical social
worker, Duty to prevent harm, Public employee, School,
Wrongful death. Wrongful Death. Massachusetts Tort Claims
Act. Practice, Civil, Motion to dismiss. Immunity from
Suit. Words, "Member of household," "Intervention."

Civil action commenced in the Superior Court Department on
May 3, 2021.

Motions to dismiss were heard by James H. Budreau, J.

Jeffrey S. Beeler for the plaintiff.
John J. Davis for Acton-Boxborough Regional School
District.

1 Of the estate of Jacob R. Goyette.

2 Acton-Boxborough Regional School District.
2

WALSH, J. After the suicide of her son Jacob R. Goyette,

Shannon Paradis filed a complaint against Acton-Boxborough

Regional School District (school district) and social worker

Martha Frost, claiming negligence and wrongful death.3 A judge

of the Superior Court allowed the school district's motion to

dismiss on the ground that the school district was immune from

liability under G. L. c. 258, § 10 (j).4 On appeal, Paradis

argues that the school district is not immune because it owed

Jacob a duty to take reasonable steps to prevent his suicide.

She also argues that the school district is not immune from

liability because Frost, a public employee, took affirmative

actions which were the original cause of Jacob's harm. In the

alternative, Paradis argues that even if immunity were to

somehow apply to the school district, the circumstances

presented here fall within three exceptions to the statute. We

affirm.

3 Counts I, II, and III of the amended complaint allege
negligence and wrongful death against Frost. The sole count
against the school district is Count IV under the Massachusetts
Tort Claims Act. The judge denied Frost's motion to dismiss,
ruling that the issue of whether Frost was a public employee was
not ripe for a decision. The claims against Frost were pending
at the time this case was argued; Frost is not a party to this
appeal and the only issue on appeal relates to Count IV against
the school district.

4 The judge ordered the entry of a separate and final
judgment for the school district, Mass. R. Civ. P. 54 (b), 365
Mass. 820 (1974), from which Paradis filed a timely notice of
appeal.
3

Background. We summarize the background of this case and,

because this appeal stems from the allowance of a motion to

dismiss, we "accept as true the facts alleged in the

plaintiff['s] [amended] complaint as well as any favorable

inferences that reasonably can be drawn from them." Polay v.

McMahon, 468 Mass. 379, 382 (2014).

In 2017, Jacob was a sixteen year old student who attended

the Acton-Boxborough Regional High School (school), a regional

public school. The school district operates and controls the

activities of the school. During the 2017-2018 school year,

Frost, a licensed independent clinical social worker, had a

contract with the school district to work at the school as a

high school social worker for one year, in addition to

maintaining her private practice as a licensed social worker.

During the relevant time period, school district officials

knew that Jacob suffered from anxiety, attention deficit

hyperactivity disorder, and impulsivity, and that the school was

providing him with accommodations through a "504 plan."5 Those

same officials also knew that five current or former students

from the school district had died by suicide in the two years

preceding Jacob's death. In the months prior to Jacob's death,

5 "[A] 504 plan is a plan to accommodate [a child's]
disability and enable [him or her] to attend public school"
(quotations and citation omitted). Commonwealth v. Olivier, 89
Mass. App. Ct. 836, 843 n.11 (2016).
4

a school guidance counselor (a different person from Frost)

included in her notes that three of Jacob's grandparents had

died in 2017 and that Jacob had been friends with another

student from the school district who had died by suicide. As of

early 2018, the school district also knew that Jacob had stopped

doing his homework and was failing his classes.

On May 30, 2018, Jacob's girlfriend interrupted a meeting

between Frost and another student to report concerns she had

about Jacob's well-being. She told Frost that earlier that day

she had seen Jacob drinking alcohol in the school commons, that

he was drunk, upset, and crying, and "that something was really

wrong." She told Frost that "she had noticed that things were

not right with Jacob" and that Jacob would not tell her what was

bothering him. She confided in Frost that his behavior reminded

her of another student at the school who had recently died by

suicide. She also "told Frost that she thought Jacob was going

to do something stupid, including possibly hurting himself."

"Frost told the girlfriend not to worry and that [she] would be

in contact with Jacob's parents and the [d]ean to ensure that

they got Jacob the help that he needed." Due to Frost's

assurances, the girlfriend (who was also being counseled by

Frost) did not inform Jacob's parents about her concerns, which

she otherwise would have done.
5

Shortly thereafter, Frost met with Jacob. Frost did not

keep a record of the meeting. Frost did not speak to Jacob's

parents about her meeting with Jacob or about the girlfriend's

concerns. Tragically, about six weeks later, during summer

school vacation, Jacob died by suicide at his home. Two months

thereafter, the school principal contacted Jacob's parents. He

informed them of the events of May 2018 between Frost and

Jacob's girlfriend, and that Frost was now "separated from her

contracted position at" the school.

Discussion. Paradis argues that the school district is not

immune from suit because Frost, for whose actions she contends

the school district is liable, was the original cause of Jacob's

suicide. She further argues that if the school district is

immune, her claims fall within three exceptions, as set forth in

G. L. c. 258, § 10 (j) (1), (2), and (4). In addition, relying

on Nguyen v. Massachusetts Inst. of Tech., 479 Mass. 436 (2018),

Paradis argues that the school district is liable for Jacob's

death because the school district owed Jacob a duty to take

reasonable steps to prevent his suicide. Because we conclude

that the school district is immune from suit, we need not -- and

do not -- reach the question of duty, although we set out the

contours of Paradis's argument for the sake of completeness.

1. Standard of review. "We review the allowance of a

motion to dismiss de novo." Curtis v. Herb Chambers I-95, Inc.,
6

458 Mass. 674, 676 (2011). We accept as true the allegations in

the amended complaint and draw every reasonable inference in

favor of Paradis. See Polay, 468 Mass. at 382. To survive a

motion to dismiss, the factual allegations must support an

entitlement to relief. See Iannacchino v. Ford Motor Co., 451

Mass. 623, 635-636 (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. See id. at 636.

2. Immunity. Taking the allegations of the amended

complaint as true, we must determine whether, under the

Massachusetts Tort Claims Act, the school district is immune

from suit. This is a question of law that we review de novo.

See Klevan v. Newton, 97 Mass. App. Ct. 87, 90 n.8 (2020).

Public employers are liable for the negligent acts and omissions

of their public employees "in the same manner and to the same

extent as a private individual under like circumstances,"

subject to certain limitations. G. L. c. 258, § 2. Section

10 (a)-(j) of G. L. c. 258, however, "sets forth several

exceptions to that general waiver of sovereign immunity."

Cormier v. Lynn, 479 Mass. 35, 39 (2018). In particular,

§ 10 (j) provides that government entities are immune from

claims "based on an act or failure to act to prevent or diminish

the harmful consequences of a condition or situation . . . which
7

is not originally caused by the public employer or any other

person acting on behalf of the public employer." See Cormier,

supra.

Paradis claims that immunity under § 10 (j) does not apply

where a public employer (the school district) is the original

cause of the harm. Specifically, she argues "that Frost's

affirmative act materially contributed to creating a condition

or situation that resulted in Jacob's death."

Our case law is clear that an "original cause" must be an

affirmative act; the failure to act does not suffice. See

Cormier, 479 Mass. at 40. "[T]he principal purpose of § 10 (j)

is to preclude liability [on the part of the Commonwealth] for

failures to prevent or diminish harm" (citation omitted).

Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 489 (2002). The

amended complaint alleges that Frost failed to take appropriate

action -- to inform Jacob's parents of Jacob's situation, and to

conduct an appropriate risk assessment of Jacob when she met

with him and to keep a record of the meeting -- after speaking

with Jacob's girlfriend. Paradis does not allege the kind of

"affirmative acts" necessary for Frost to be the original cause

of Jacob's suicide. For the original cause language of § 10 (j)

to apply, "the act must have materially contributed to creating

the specific 'condition or situation' that resulted in the harm"

(emphasis added). Kent v. Commonwealth, 437 Mass. 312, 319
8

(2002), quoting G. L. c. 258, § 10 (j). In essence, Paradis

claims that Frost was the original cause of Jacob's suicide by

affirmatively telling Jacob's girlfriend that she would inform

his parents and then failing to do so, thereby depriving his

family of an opportunity to intervene and obtain treatment for

Jacob.

We conclude, as the judge did, that Jacob's suicide was the

result of his own state of mind and not the failures of Frost.

See Jones v. Maloney, 74 Mass. App. Ct. 745, 749 (2009)

(plaintiff may be original cause of harmful "condition or

situation"). See also Jacome, 56 Mass. App. Ct. at 489-490

(defendant's failure to prevent drowning victim from swimming in

unsafe conditions not original cause of death). It therefore

follows that the school district is immune for any failure to

prevent or diminish the "harmful consequences" of Jacob's

"condition or situation." See McCarthy v. Waltham, 76 Mass.

App. Ct. 554, 561 (2010) (city immune from suit where original

cause of decedent's suicide, one hour after being released from

protective custody, was his "suicidal frame of mind"). In

essence, "the principal purpose of § 10 (j) is to preclude

liability for failures to prevent or diminish harm, including

harm brought about by the wrongful act of a third party." Brum

v. Dartmouth, 428 Mass. 684, 696 (1999) (stabbing by third party

was original cause of victim's injuries, not negligence of
9

defendant). For these reasons, the school district is immune

from suit.6

3. Exceptions. Paradis next argues that even if the

school district qualifies for immunity, there are three

exceptions that apply. We address each in turn.

a. Specific assurances. General Laws c. 258,

§ 10 (j) (1), provides in relevant part that immunity does not

apply to "any claim based upon explicit and specific assurances

of safety or assistance, beyond general representations that

investigation or assistance will be or has been undertaken, made

to the direct victim or a member of his family or household by a

public employee, provided that the injury resulted in part from

reliance on those assurances." This section only applies "to

the truly exceptional case where direct and explicit assurances

are given to a particular person quite apart from the normal

carrying out of officials' routine duties." Barnes v.

Metropolitan Hous. Assistance Program, 425 Mass. 79, 87 (1997).

Paradis argues that § 10 (j) (1) applies because Jacob's

6 Even if Frost's statements to the girlfriend were
affirmative acts, we agree with the judge that the claim still
fails because they must have materially contributed to the
"'condition or situation' that resulted in the harm." Cormier,
479 Mass. at 40. Paradis has failed to set forth facts to
support the required inference that Frost's statements to the
girlfriend in May set in motion a chain of events that caused
Jacob's state of mind in July.
10

girlfriend may be "properly viewed as a member of Jacob's

household," and Frost made explicit assurances to her. We are

not persuaded.

The phrase "member of his household" in this context has

not been defined by either statute or case law. Accordingly, we

apply well-settled rules of statutory interpretation. "When a

statute's language is plain and unambiguous, we afford it 'its

ordinary meaning.'" Commonwealth v. Keefner, 461 Mass. 507, 511

(2012), quoting Commonwealth v. Brown, 431 Mass. 772, 775

(2000). "If we determine that the intent of the Legislature is

unambiguously conveyed by the statutory language, we simply end

our analysis and give effect to the legislative intent." Nunes

v. Duffy, 101 Mass. App. Ct. 460, 463 (2022), quoting Adams v.

Boston, 461 Mass. 602, 609 (2012).

The term "household" is defined as "[a] group of people who

dwell under the same roof."7 Black's Law Dictionary 888 (11th

ed. 2019). None of the facts alleged in the amended complaint,

nor any of the inferences that can reasonably be drawn from the

facts, lead us to conclude that Jacob's girlfriend was "a member

of his household." Accordingly, § 10 (j) (1) does not apply.8

7 We decline to interpret, as Paradis argues, the term
"member of his [or her] household" as equivalent to the more
expansive definition of "family or household members" under
G. L. c. 209A, § 1.
11

b. Intervention. General Laws c. 258, § 10 (j) (2),

limits immunity when the claim is "based upon the intervention

of a public employee which causes injury to the victim or places

the victim in a worse position than he was in before the

intervention." Although the statute does not define

"intervention," we have interpreted the term to mean "the act or

fact of intervening." Stahr v. Lincoln Sudbury Regional High

Sch. Dist., 93 Mass. App. Ct. 243, 249 (2018), quoting Webster's

Third New International Dictionary 1183 (1993). In other words,

for § 10 (j) (2) to apply, the claim must be based on an

intervening act, not a failure to act. See Stahr, supra.

Paradis argues that Frost's assurances to the girlfriend

qualified as an intervention under § 10 (j) (2). We disagree.

At most, Frost's statements that she would inform Jacob's

parents (and her failure to do so) were negligent omissions, and

not acts of intervention. See Jones, 74 Mass. App. Ct. at 749-

750 (assistant principal's failure to act cannot be considered

act of intervention under § 10 [j] [2]). Because § 10 (j) (2)

eliminates immunity for affirmative acts of intervention, it

does not apply here.

8 Because Jacob's girlfriend was not a "member of his
household," we need not and do not address whether Frost's
assurances to the girlfriend were explicit and specific, or
whether the girlfriend's reliance on Frost's assurances was a
sufficiently proximate cause of Jacob's death. See G. L.
c. 258, § 10 (j) (1).
12

c. Negligent treatment. Finally, G. L. c. 258,

§ 10 (j) (4), limits immunity for "any claim by or on behalf of

a patient for negligent medical or other therapeutic treatment

received by the patient from a public employee." Paradis argues

that § 10 (j) (4) applies because the claims arise out of the

negligent therapeutic treatment of Jacob by Frost, a licensed

independent clinical social worker. For purposes of the motion

to dismiss, we accept that the limited contact between Frost and

Jacob could support the claim that Jacob was a patient of Frost.9

However, the amended complaint does not allege that Frost was

negligent in providing Jacob with "treatment." Instead the

amended complaint faults Frost –- and, derivatively, the school

district -- for failing to inform others of Jacob's girlfriend's

concerns. "We cannot stretch the plain language of the

operative phrase of § 10 (j) (4) -- negligent medical treatment

-- to encompass nonmedical acts or omissions by public

employees." Slavin v. American Med. Response of Mass., Inc., 99

Mass. App. Ct. 55, 58 (2021).

4. Negligence claim. Given that the school district is

immune from suit, we need not (and do not) reach Paradis's

argument that the school district owed a duty to take reasonable

9 It is undisputed that Frost met with Jacob only once.
13

steps to prevent Jacob's suicide. However, for the sake of

completeness, we set forth here the parameters of her argument.

Paradis contends that "Frost's negligence, carelessness

and/or unskillful interactions with and/or failure to provide

Jacob with the degree of care of the average qualified

practitioner . . . were direct and proximate causes of Jacob's

death." Put another way, Paradis claims that the school

district, a public employer, is responsible for Frost's actions.

See Berry v. Commerce Ins. Co., 488 Mass. 633, 637 n.3 (2021)

("Respondeat superior is a type of vicarious liability in which

the employer is held liable for the acts of the employee

committed within the scope of employment").

"Generally, there is no duty to prevent another from

committing suicide. Under our case law, 'we do not owe others a

duty to take action to rescue or protect them from conditions we

have not created.'" Nguyen, 479 Mass. at 448, quoting Cremins

v. Clancy, 415 Mass. 289, 296 (1993) (O'Connor, J., concurring).

However, the Supreme Judicial Court has "recognized that special

relationships may arise in certain circumstances imposing

affirmative duties of reasonable care . . . including the duty

to prevent suicide." Nguyen, supra. The most common examples

of such a situation are in jails or hospitals. See id. at 448-

449. Cf. Bonafini v. G6 Hospitality Prop., LLC, 101 Mass. App.

Ct. 612, 612-613 (2022) (no duty where innkeeper failed to call
14

police to conduct wellness check on guest who died by suicide in

rented room).

In Nguyen, 479 Mass. at 448-449, the Supreme Judicial Court

considered whether a special relationship existed between a

university and its graduate student. In doing so, the court

analyzed the role universities play in students' academic and

personal lives, and the fact that universities are "property

owners and landlords responsible for their students' physical

safety on campus." Id. at 450. The court concluded that

because of universities' significant involvement in their

students' lives, universities may have a special relationship

with their students that includes a duty to take reasonable

measures to prevent a student's suicide "[w]here a university

has actual knowledge of a student's suicide attempt that

occurred while enrolled at the university or recently before

matriculation, or of a student's stated plans or intentions to

commit suicide." Id. at 453. Because the student "never

communicated by words or actions to any MIT employee that he had

stated plans or intentions to commit suicide, and any prior

suicide attempts occurred well over a year before

matriculation," the court concluded that no duty was owed by MIT

to the student. Id. at 458.

Paradis argues that the principles of Nguyen should extend

to public school districts. Although Paradis's argument has
15

some force, we need not decide the question here because, for

the reasons we have already stated, the school district is

immune from suit regardless.

Judgment affirmed.