KELLY MANNION v. JUSTICE RESOURCE INSTITUTE, INC. & Others.

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-420

KELLY MANNION

vs.

JUSTICE RESOURCE INSTITUTE, INC. & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Kelly Mannion, appeals from the entry of

summary judgment in favor of the defendants. Mannion argues

that the Superior Court judge erred in concluding that the

defendants did not owe her a duty of care and that the

defendants' conduct was not a legal cause of her injury. For

the reasons set forth below, we agree with Mannion, vacate the

judgment, and remand the case for further proceedings consistent

with this memorandum and order.

Background. 1. Facts. We summarize the essential facts,

reserving certain details for later discussion. Because Mannion

appeals from the allowance of the defendants' motion for summary

judgment, we summarize the evidence in the light most favorable

1 Meredith Rapoza, as director of Meadowridge Academy, and John
Doe.
to her. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.

117, 120 (1991).

Defendant Justice Resource Institute, Inc. (JRI) operates

Meadowridge Behavioral Health Centers, Inc. (Meadowridge), a

residential group facility. At all relevant times, defendant

Meredith Rapoza was the director of Meadowridge.2 Families or

agencies, such as the Department of Children and Families (DCF),

refer minors to become students and residents of Meadowridge.

Students referred to Meadowridge exhibit varying mental health

diagnoses, such as anxiety disorders, mood disorders, psychotic

disorders, and posttraumatic stress disorder. Students also

often exhibit behavioral difficulties, including an inability to

control emotions and aggressive or assaultive behavior. To

handle the risks posed by and to its students, Meadowridge

operates as a restrictive site that controls who is approved to

visit and requires all employees to complete safety training,

including de-escalation training. Meadowridge relies on its

employees to control the safety of those on its campus, as it

does not have security guards. Individuals must show

identification before entering the facility and are escorted

inside.

2 The defendants made no argument that we should treat the
defendants differently for the purposes of this appeal. For
that reason, we treat JRI's and Rapoza's knowledge and
responsibilities as being the same.

2
At all relevant times, Mannion was employed as a social

worker for DCF. As part of her employment, Mannion supervised

Aya,3 a student residing at Meadowridge and a minor in the

permanent custody of DCF. Aya was assigned to Meadowridge by

DCF because she "could not make it in a less restrictive

environment" and because she had a history of assaultive

behavior. As part of her duties, Mannion was required to visit

Aya once a month. Communities for People, Inc. (CFP), a company

tasked by DCF with ensuring that facilities such as Meadowridge

were performing their functions adequately, was also required to

visit with Aya on a quarterly basis.

On November 18, 2014, Mannion arrived at Meadowridge for a

scheduled monthly visit with Aya that was to occur directly

after a quarterly CFP meeting. Mannion planned to tell Aya

during the meeting that Aya was not going to be permitted to

visit her mother the following weekend because Aya had violated

one of DCF's rules. Specifically, Aya had been given permission

to visit her home, but instead had gone out of state to visit a

friend. The defendants knew that Aya had violated the rule, as

it was Meadowridge that had reported the incident to DCF, but

there is no evidence that Mannion informed the defendants that

3 A pseudonym.

3
she planned after the meeting to revoke Aya's permission to

visit her mother.

The CFP meeting occurred in a conference room with Aya,

Mannion, a CFP employee, Aya's clinician, and other Meadowridge

staff.4 Aya sat on one side of the table and Mannion on the

other side of the table. During the CFP meeting, Aya was

responsive and engaged in the conversation as each individual

gave "a progress report" on Aya. At the conclusion of the CFP

meeting, the staff who had given their progress reports

departed, leaving in the room only Aya, Mannion, Aya's

clinician, and the CFP employee. Mannion then told Aya that

because she had broken the rules by visiting her friend instead

of her mother, Mannion "was going to have to hold her

accountable." When Mannion explained the consequences facing

Aya, Aya became agitated. Aya warned Mannion that "you need to

stop talking or I am going to jump over this table!" Mannion

responded to Aya by saying "I am going to continue to hold you

accountable." Aya then rose to her feet, threw an artificial

planted pot at Mannion, came around the table, and attacked

Mannion by grabbing her hair, slamming her head against the

wall, and pulling her to the ground. The CFP employee and Aya's

clinician quickly left the room to call for help. Within

4 Mannion recalled five to seven people in the room but could not
name them.

4
seconds, several people5 came back to the conference room and

were able to restrain Aya. As a result of the attack, Mannion

suffered extensive injuries, her ability to perform her duties

as a social worker was considerably impacted, and many of her

cases had to be transferred to other social workers.

Mannion presented evidence that the defendants' employees

and local law enforcement were often the targets of acts of

aggressive behavior by Meadowridge students. Additionally,

Mannion presented evidence that the defendants knew that Aya had

anger management issues and a history of assaultive behavior.

2. Procedural history. Mannion filed a complaint on

October 2, 2017, twice thereafter amended, alleging identical

counts of negligence against JRI and Rapoza.6 Mannion claimed

that the defendants owed her a duty to ensure that Meadowridge

was reasonably safe by providing adequate security, and that

they had breached that duty. The defendants filed a motion for

summary judgment. Mannion sought additional time to engage an

expert and conduct depositions before the judge ruled on the

defendants' motion. See Mass. R. Civ. P. 56 (f), 365 Mass. 824

(1974). The judge heard both parties' arguments during a

5 Mannion stated that it took "more than five" people to get Aya
off her.
6 The second amended complaint also alleged negligence by

employee John Doe, but he was dismissed from the suit under
Superior Court Standing Order 1-88 (2020), and Mannion does not
appeal that judgment.

5
hearing conducted over Zoom. On February 1, 2022, the judge

allowed the defendants' motion for summary judgment, concluding

that, as a matter of law, the defendants did not owe Mannion a

duty of care and did not cause Mannion's harm because Aya's

attack was not reasonably foreseeable. The judge also held that

Mannion had failed to demonstrate sufficient cause to allow

additional discovery.7

Discussion. Mannion argues that the allowance of the

defendants' motion for summary judgment was error. "To prevail

on a negligence claim, a plaintiff must prove that (1) the

defendant owed the plaintiff a duty, (2) the defendant breached

this duty, (3) damage to the plaintiff resulted, and (4) there

was a causal relationship between the breach of the duty and the

damage." R.L. Currie Corp. v. East Coast Sand & Gravel, Inc.,

93 Mass. App. Ct. 782, 784 (2018). "The standard of review of a

grant of summary judgment is whether, viewing the evidence in

the light most favorable to the nonmoving party, all material

facts have been established and the moving party is entitled to

a judgment as a matter of law." Augat, Inc., 410 Mass. at 120.

See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

7 In her brief, Mannion argues that the judge erred in denying
her the opportunity to complete several depositions and submit
expert opinions before ruling on the summary judgment motion.
Because we vacate the allowance of the motion on other grounds,
we need not address this point. Additional discovery may be had
before trial, in the discretion of the court.

6
"The allowance of a motion for summary judgment is reviewed de

novo." Brown v. Kalicki, 90 Mass. App. Ct. 534, 535 n.5 (2016),

quoting White v. Hartigan, 464 Mass. 400, 406 (2013). We

address the judge's rulings regarding both duty and causation

because either could independently support summary judgment.

1. Duty. "[T]he existence or nonexistence of a duty is

question of law, and is thus an appropriate subject of summary

judgment." Jupin v. Kask, 447 Mass. 141, 146 (2006). The

determination of duty must be made "by reference to existing

social values and customs and appropriate social policy." Id.

at 143, quoting Cremins v. Clancy, 415 Mass. 289, 292 (1993).

The owner or occupier of a property has a duty under the

general principles of common-law negligence to "act as a

reasonable [person] in maintaining [the] property in a

reasonabl[y] safe condition in view of all the circumstances,

including the likelihood of injury to others, the seriousness of

the injury, and the burden of avoiding the risk" [citation

omitted]. Mounsey v. Ellard, 363 Mass. 693, 708 (1973). "As a

general rule, a landowner does not owe a duty to take

affirmative steps to protect against dangerous or unlawful acts

of third persons." Luoni v. Berube, 431 Mass. 729, 731 (2000).

Nevertheless, a landowner is required "to exercise

reasonable care in preventing injury to a lawful visitor caused

by the reasonably foreseeable acts of another, whether those

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acts are accidental, negligent, or intentional." McKinney-

Vareschi v. Paley, 42 Mass. App. Ct. 953, 954 (1997). See Flood

v. Southland Corp., 416 Mass. 62, 72 (1993); Carey v. New Yorker

of Worcester, Inc., 355 Mass. 450, 452 (1969). This duty is not

premised on the existence of a "special relationship"; a

landowner's relationship to a person lawfully visiting the

premises is enough.8 See McKinney-Vareschi, supra at 954-955.

Liability may attach "in the rare cases 'in which a person

legally on the premises is attacked, and the owner or landlord

knew of or should have known of both the previous attacks and

the potential for a recurrence based on a failure to take

measures to make the premises safer.'" Belizaire v. Furr, 88

Mass. App. Ct. 299, 304 (2015), quoting Griffiths v. Campbell,

425 Mass. 31, 35 (1997).

Viewing the facts in the light most favorable to Mannion,

the defendants owed Mannion a duty. The summary judgment record

showed that the defendants knew of prior incidents of violence

8 Earlier cases, describing the existence of this duty as "a well
settled principle of law," were decided in the context of paying
customers on business premises. Rawson v. Massachusetts
Operating Co., 328 Mass. 558, 558 (1952). In Mounsey, supra at
707, however, the court determined we would "no longer follow
the common law distinction between licensees and invitees and,
instead, [would] create a common duty of reasonable care which
the occupier owes to all lawful visitors." Thus, in recognizing
a duty to the plaintiff as a lawful visitor to a parking area in
McKinney-Vareschi, supra at 954, the court did not discuss
whether the plaintiff was a paying customer, invitee, or
licensee.

8
by students at Meadowridge and of Aya's history of assaultive

behavior and anger management issues. Because the defendants

also knew or should have known of the potential for violence by

students if measures to make the premises safer were not taken,

the defendants had a duty to take affirmative steps to protect

visitors like Mannion from foreseeable dangerous or unlawful

acts by their students. Sound public policy also supports this

limited holding, despite the general bar on liability of

property owners due to actions of third parties, as any other

conclusion would allow JRI to operate its facilities with

careless disregard for the safety of providers required by their

employment to be on the grounds. See Jupin, 447 Mass. at 150-

154 (weighing costs associated with not recognizing duty against

costs to landowner). The defendants are in a better position

than visitors to take precautions against violent conduct by

students; indeed, there is evidence that the defendants had

already adopted some policies and taken some precautions to

protect against such conduct. We note that a distinguishing

factor with regard to reasonable foreseeability in this case is

that the plaintiff here, Mannion, is someone known to the

defendants and is among a class of visitors whom the defendants

regularly allow into the facility to interact with their

population of youth who suffer with behavioral issues and

frequently experience violent outbursts. It is also significant

9
that the third party, Aya, was housed in the defendants'

premises and was well known to them. This was not a random

attack by a third-party criminal actor. The defendants were

aware of the volatile nature of the residents and had a duty to

exercise reasonable care to those whom it allowed inside. We

note that whether the defendants acted negligently or not is not

before us and will be left to the finder of fact.9

2. Causation. Because we conclude that the defendants

owed Mannion a duty of care, we must also address whether, as a

matter of law, a reasonable jury could find that the defendants'

breach of that duty caused Mannion's harm. Summary judgment

based on lack of causation is appropriate only where "a

9 Because we conclude that the defendants owed Mannion a common-
law duty as a lawful visitor to the defendants' premises, we
need not definitively resolve the validity of Mannion's other
theories of duty. We observe, however, that her theory of a
special relationship -- in particular, one based on the
defendants having "charge of a person with dangerous
propensities" -- was not adequately developed in her brief. Lev
v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 243 (2010),
citing Restatement (Second) of Torts § 319 (1965). Her theory
of a voluntarily assumed duty was not adequately supported by
citation to any record evidence that she relied on any such
undertaking. Her theory of a contractual duty of care to her as
a DCF worker was unsupported by a citation to any provision of
the defendants' contract with DCF that specifically established
such a duty. Finally, her theory of a regulatory duty of care
is not supported by the regulation she cites, 104 Code Mass.
Regs. § 27.12(8)(b) (2021), though, at the time of these events,
the effective version was 104 Code Mass. Regs. § 27.12(5)(b)
(2006). The regulation, assuming arguendo that it governed the
defendants' relationship with Aya, merely authorized the use of
restraints in certain instances of threatened or actual
violence; on its face it imposed no duty to use such restraints.

10
plaintiff has no reasonable expectation of proving that 'the

injury to the plaintiff was a foreseeable result of the

defendant's negligent conduct.'" R.L. Currie Corp., 93 Mass.

App. Ct. at 784, quoting Hebert v. Enos, 60 Mass. App. Ct. 817,

820-821 (2004). A party "is bound to anticipate and provide

against what usually happens and what is likely to happen, but

is not bound in like manner to guard against what is . . . only

remotely and slightly probable" (citation omitted). Hebert,

supra at 821.

We conclude that the summary judgment record does not

establish, as a matter of law, that the injury to Mannion was

not a reasonably foreseeable result of the lack of safety

measures. The record showed that the defendants' employees and

local law enforcement were often the targets of acts of

aggressive behavior by Meadowridge students. Even if that were

not the case, a jury could conclude that Meadowridge's main

function, to house students with behavioral problems, would make

aggressive conduct by students reasonably foreseeable. The fact

that the defendants were unaware of a particularized danger to

Mannion from Aya does not negate a conclusion that harm from

students to permitted visitors was reasonably foreseeable. See

Luisi v. Foodmaster Supermkts., Inc., 50 Mass. App. Ct. 575, 580

(2000) (material issue of fact regarding causation where

defendant left knives uncovered even though defendant had no

11
knowledge of particularized danger posed by third party who used

said knife to stab victim). We cannot say on this record that

Mannion had no reasonable expectation of proving that her injury

was a foreseeable result of the defendants' negligent conduct.

The issue must be resolved by the finder of fact. See R.L.

Currie Corp., 93 Mass. App. Ct. at 784.

Conclusion. Because there are genuine issues of material

fact with respect to both duty and causation, we vacate the

judgment and remand the case to the Superior Court for further

proceedings consistent with this memorandum and order.

So ordered.

By the Court (Massing,
Sacks & Walsh, JJ.10),

Clerk

Entered: March 7, 2023.

10 The panelists are listed in order of seniority.

12