In a decision released February 27, 2018, the Supreme Judicial Court held that the Massachusetts Tort Claims Act, (“Act”), G.L. c. 258, § 10 (j), shielded the City of Lynn and Lynn Public Schools from liability for negligently failing to prevent bullying. The decision, Cormier v. City of Lynn, SJC-12323, involved a Lynn elementary school student who suffered permanent paralysis as a result of being pushed down a stairwell by a classmate. The student’s parents brought claims against a number of defendants, including the city of Lynn, the Lynn Public Schools, and their public employees. A Superior Court judge allowed a motion to dismiss all claims against the public defendants. The Appeals Court affirmed that decision. Granting the plaintiff’s application for further review, the SJC took the case, limited to whether the Act barred the plaintiff’s claims.

The court accepted as true the plaintiff’s allegation that the school was negligent for failing to act reasonably to prevent the bullying that led to the student’s injury. The sole issue before the court was whether the defendants could be held liable for that negligence. Under the Act, a public employer generally may be held liable for the negligent or wrongful acts or omissions of its employees acting within the scope of their employment. However, an exception in the statute eliminates liability for a public employer’s act or failure to act to prevent harm from the wrongful conduct of a third party, unless the condition or situation was “originally caused” by the public employer. A public employer “originally causes” a condition or situation if the public employer took an affirmative action and the action “materially contributed to creating the specific condition or situation that resulted in the harm.” A failure to act will not suffice as such an “affirmative action.”

Here, because a third party (the student-aggressor) directly harmed the student-target, the court had to determine whether the Lynn Public Schools “originally caused” the dangerous situation that resulted in the student’s injuries. The complaint alleged that, prior to his injury, the student-target had endured constant bullying at school, including from the student-aggressor who ultimately pushed him down the stairs, despite numerous reports to teachers and school administrators about the bullying and harassment. The plaintiff alleged that the defendants were negligent for failing to investigate these complaints and for failing to implement the school committee policies designed to ensure a safe learning environment. Additionally, the plaintiff argued that the school’s policy of having students line up outside of school each morning, without guidance or supervision, exposed the student-target to his aggressor which constituted an affirmative act that led to the injury.

The court disagreed, ruling that the school’s conduct involved a failure to act rather than an affirmative action. The court acknowledged that bullying is a “persistent, pernicious problem in our schools” and that the Lynn Public Schools could and should have done more to protect the student. Nevertheless, the court considered the school’s actions to be “too remote as a matter of law to be the original cause of [the student’s] injuries.” The court also noted that the Massachusetts anti-bullying statute, G.L. c. 71 § 37O, though not in effect for the relevant times in this case, now imposes a statutory requirement on Massachusetts schools to prevent and address bullying. Finally, the court observed that “it remains to be seen whether the regulatory mechanisms of the anti-bullying statute provide sufficient incentives for schools to develop and adhere to adequate measures to protect students from these harms.”

Obviously, there are numerous practical and policy reasons why schools should vigorously enforce their anti-bullying policies. For the moment, however, it appears that a mere failure to enforce, without more, does not trigger tort liability. As always, a school district confronted by legal questions regarding bullying should consult our attorneys about specific cases, since the facts may dictate a different conclusion.

This update is provided for informational purposes only and should not be considered legal advice.