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Recent Case Law Regarding the Massachusetts Tort Claims Act

Does the Massachusetts Tort Claims Act offer immunity from a lawsuit against a state police K-9 officer in a case where a police dog bites an innocent bystander during a police chase? This was the question considered by the Massachusetts Appeals Court in a recent case.

Dudley v. Massachusetts State Police involved a negligence claim brought by the plaintiff after he was bitten by a police dog and seriously injured. Dudley v. Massachusetts State Police, 91 Mass. App. Ct. 616 (2017). The officer in question was involved in a police chase of a suspect who fled, first in his car and then on foot. The officer commanded his police dog to apprehend the suspect and let go of the dog's leash, releasing him toward the parking lot. Meanwhile, the plaintiff, who happened to be in the parking lot, heard the crash of a car and exited his vehicle. The dog focused on the plaintiff and bit him in the stomach. The plaintiff tried to dive into his truck, but the dog grabbed him by the leg and dragged him back out.

The plaintiff sued, claiming that in releasing the police dog to apprehend a suspect in a public space, where the presence of others would be expected, the officer’s conduct created a foreseeable and substantial risk of harm to an innocent bystander. The defendants filed a motion for summary judgment, claiming that they were immune from the lawsuit based on the Massachusetts Tort Claims Act. The trial court granted the defendants’ motion.

On appeal, the Appeals Court vacated that judgment. The Court discussed whether the trooper’s decision to release the canine in the parking lot “involved discretionary activity of the ‘planning or policy-making type’ that is immunized under [the law], as opposed to particular conduct that involves the ‘implementation’ of government policy, for which there is no immunity.” Id., at 7. The Court held that in this case, the trooper’s actions were not of a discretionary nature, meaning immunity did not apply and a suit could be brought.

“[The Trooper], while trying to capture a fleeing suspect, ordered and released [the dog], in a moderate to heavily occupied parking lot, to attack a suspect and, in doing so, the Trooper created the harmful condition that resulted in [the plaintiff’s] injury,” the Court noted. Id., at 9.

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