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.

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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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