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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss SUFFOLK SUPERIOR COURT
C.A. NO. 2384CV02160
HARKER KEE RE REE RAR AERE EERE ERRER GREER
SD, individually and on behalf of
her minor grandson, JD.
Plaintiffs
os
V.
Tae
Ba
o
City of Boston, Boston Public Schools he
im
and Ashley Bowman
MER AK LARA ALAR E RE ERE RR ER RIERA IO
DEFENDANTS’, CITY OF BOSTON AND BOSTON PUBLIC SCHOOLS,
MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TODISMISS 5
NOW COMES Defendants, City of Boston and Boston Public Schools (collectively,
“City” or “Defendants”)! and, pursuant to Mass. R. Civ. P. 12(b)(6), hereby submit the within
Memorandum of Law in Support of their Motion To Dismiss.
I FACTS
This is an action brought on behalf of the minor Plaintiff, ID, by his grandmother, SD,
stemming from personal injuries suffered when, allegedly, a teacher pushed JD down stairs.
According to the Plaintiffs’ Complaint (“Complaint”), on or about January 13, 2022, during the
dismissal process, Ashley Bowman (“Bowman”), a former employee of Boston Public Schools
as a teacher at Higginson Elementary School, took JD outside. As JD began to leave the school
premises, Bowman is alleged to have shoved JD in the back, sending him down the stairs. See
! Boston Public Schools is not an independent legal entity. It is a department of the City of
Boston. See Stratton v. Boston, 731 F. Supp. 42, 46 (D. Mass. 1989).
Complaint, 10-18. Plaintiffs allege that, as a direct and proximate result of Bowman’s actions,
JD suffered physical and emotional injuries, including back and stomach pain, and emotional
trauma. The Plaintiffs filed their Complaint on or about September 26, 2023, bringing claims
against City of Boston and Boston Public Schools (Count I, Negligence, and, Count II, Negligent
Infliction of Emotional Distress). The Plaintiffs also brought two claims against the individual
defendant, Ashley Bowman, The Defendants here move to dismiss Counts I and II of Plaintiff's
Complaint.
IL ARGUMENT
A. LEGAL STANDARD
When deciding a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), the Court must
determine whether the plaintiffs have stated a legally cognizable claim by making allegations
that, if true, would show that the plaintiffs are entitled to relief. See Bell Atl, Corp. v. Twombly,
550 U.S. 544, 557 (2007) (interpreting Rule 12(b)(6) to require allegations with “enough heft to
show that the pleader is entitled to relief’). To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Bell Atl Corp., 550 U.S. at 570.
In considering the merits of a motion to dismiss, the Court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor.
Langadinos y. Am. Airlines, Inc. 199 F.3d 68, 69 (1st Cir, 2000). Yet “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,” do not suffice to state a
cause of action. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Accordingly, a complaint does not
state a claim for relief where the well-pled facts fail to warrant an inference of anything mor
ethan the mere possibility of misconduct. Id, at 679.
In Iannachino v. Ford Motor Co., 451 Mass. 623, 635 (2008), the Supreme Judicial Court
(“SJC”) adopted the standards set forth by the United States Supreme Court in Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) for reviewing the adequacy of complaints pursuant to Mass.
R. Civ. P. 12(b)(6). In Iannachino, the SJC specified the standard of review on a motion to
dismiss for failure to state a claim:
“While a complaint attacked by a...motion to dismiss does not need detailed factual
allegations...a plaintiff’s obligation to provide the “grounds” of his entitle[ment] to
relief” requires more than labels and conclusions...Factual allegations must be enough to
aise a right to relief above the speculative level...[based] on the assumption that all the
allegations in the complaint are true (even if doubtful in fact)...” What is required at the
pleading stage are factual “allegations plausibly suggesting (not merely consistent with)”
an entitlement to relief”
Iannachino, 451 Mass. 623, 635-36 (2008) {internal citations omitted).
“While legal conclusions can provide the complaint’s framework, they must be supported
by factual allegations.” Ashcroft v, Iqbal, 556 U.S. 662, 664 (2008). To survive a motion to
dismiss, the Complaint must contain sufficient factual matters to state a claim to relief. That
claim must be plausible on its face to allow a judge to draw a reasonable inference that the
defendant is liable to the plaintiff. “[TJhe tenet that a court must accept a complaint’s allegations
as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere
conclusory statements...” Ashcroft, 556 U.S. at 664, citing Twombly, 550 U.S. at 555. Where a
complaint pleads facts that are “merely consistent” with a defendant’s liability, it “stops short of
the line between possibility and plausibility of entitlement to relief.” Twombly, 550 U.S. at 557.
B. THE DEFENDANTS ARE NOT LIABLE FOR THE INTENTIONAL
TORTS OF THEIR EMPLOYEE
The Massachusetts Tort Claims Act (“MTCA”) creates “a cause of action against public
employers for the negligent or wrongful acts or omissions of of their employees acting within the
scope of their employment.” n_v. Sale: 446 Mass. 525 (2006). Intentional
torts are expressly exempted from [sic] the Massachusetts Tort Claim Act, so public employers
are not liable for the intentional torts of their employees. Luthy v. Proulx, 464 F. Supp. 2d 69, 76
(D. Mass. 2006); See Mass. Gen. Laws. ch. 258, § 10(c), Indeed, Section 2 of the MTCA
provides in relevant part that “[p]ublic employers shall be liable for injury...caused by the
negligent or wrongful act or omission of any public employee while acting within the scope of
his office or employment, in the same manner and to the same extent as a private individual
under like circumstances...” Mass. Gen. Laws, ch. 258, § 2. Thus, “the City could be liable
under [the MTCA] for the negligence of defendant [employees] acting within the scope of their
duty.” Lewis v. Kendrick, 944 F.2d 949, 953 (1st Cir. 1991). However, the MTCA “shall not
apply to...any claim arising out of an intentional tort, including. ..battery.” Sce Mass. Gen. Laws.
ch, 258, § 10(c).
Here, the Complaint alleges that Bowman intentionally pushed JD down the stairs
causing him injury. Such alleged conduct constitutes an intentional tort by a BPS cmployee-to
which the Defendants are immune from liability under G.L. ch. 258 § 10(c). Although the
Complaint attempts to characterize Bowman’s alleged conduct as negligence rather than an
intentional tort, the only reasonable inference to be drawn from the alleged facts-that Bowman
pushed Plaintiff JD down a flight of stairs—is that such conduct was intentional, not accidental.
Further, Counts HI (Massachusetts Civil Rights Act) and IV (42 U.S.C. § 1983) against Bowman
individually for her act of pushing Plaintiff JD down the stairs contradict her allegations that
such conduct was negligent.
Accordingly, Count I, against the City and BPS should be dismissed because they are
immune from liability for the intentional torts of their employees pursuant to G.L. ch. 258.
C. THE DEFENDANTS CANNOT BE HELD LIABLE UNDER A
RESPONDEAT SUPERIOR THEORY AS BOWMAN WAS NOT ACTING
WITHIN HER SCOPE OF EMPLOYMENT WHEN SHE PUSHED
PLAINTIFF JD.
Alternatively, The Plaintiffs allege that “[T]he City and BPS are responsible for the
negligent or wrongful acts of their employees pursuant to Mass. Gen. Laws c. 258, § 2 and the
doctrine of respondeat superior.” Sec Complaint at 40. Under the doctrine of respondeat
superior, “an employer, or master, should be held vicariously liable for the torts of its employee,
or servant, committed within the scope of employment.” Dias v. Brigham Med. Assocs.. Inc. 438
Mass. 317, 319-320 (2002) (emphasis added). [The Court] has stated that “[t]he conduct of an
agent is within the scope of employment if it is the kind he is employed to perform...if it occurs
substantially within the authorized time and space limits...and if it is motivated, at least in part,
by a purpose to serve the employer.” Mosko v. Raytheon Co., 416 Mass. 395, 399 (1993).
If the employee was acting outside the scope of the employee's office or employment, the
school retains its immunity from liability. See Doe v. Old Rochester Reg'l Sch, Dist., 56 F. Supp.
2d 114, 121 (D. Mass. 1999). Here, the conduct alleged in the Complaint-that a teacher pushed
a student down a flight of stairs—is unequivocally outside the scope of the employee’s job
responsibilities. Indeed, it cannot reasonably be argued that pushing a student down a flight of
stairs could be motivated by a desire to serve BPS. See Doe v. Fournier, 851 F. Supp. 2d 207,
226 (D. Mass. 2012), on reconsideration in part (Mar. 20, 2012).
Further, both Massachusetts Law and Boston Public Schools policy prohibit corporal
punishment by school district employees.’ See M.G.L, c. 71, Section 37G; See also Complaint at
Exhibit D. Viewing the allegations in the light most favorable to the Plaintiffs, Bowman shoved
a student down a flight of stairs causing him injury. Neither state law nor BPS policy allow for
such intentional physical acts of harm toward children by school employees. Accordingly,
? The Defendants request that this Court take judicial notice of BPS’ policy against corporal
punishment. See Complaint at Exhibit D.
Bowman was acting outside the scope of her employment as a BPS employee when she pushed
Plaintiff JD down the stairs. See Complaint at 15, 16. Accordingly, dismissal of Count I is
appropriate.
D. PLAINTIFFS’ NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
CLAIM FAILS AS A MATTER OF LAW
Plaintiff’s negligent infliction of emotional distress claim also fails because it
arises out of an allegation that a BPS employee committed an intentional tort. To state a claim
for negligent infliction of emotional distress, Plaintiff SD must plead “(1) negligence; (2)
emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology;
and (5) that a reasonable person would have suffered emotional distress under the circumstances
of the case.” Sullivan v. Boston Gas Co., 414 Mass. 129, 132 (1993). Here, the allegations in the
Complaint fail to allege facts sufficient to plead a plausible claim of negligent infliction of
emotional distress because there are no underlying allegations of negligence that caused Plaintiff
JD’s emotional distress. In other words,the Complaint alleges that Bowman pushed Plaintiff JD
down the stairs—an intentional but not negligent act-which in turn caused Plaintiff JD to suffer
emotional harm. Such allegations fail to establish the existence of an underlying negligent act
and therefore, Plaintiff SD’s claim of negligent infliction of emotional distress against the City
and BPS fails. Plaintiff SD’s claim of negligent infliction of emotional distress similarly fails
because the factual allegations do not establish the existence of any negligent conduct because
the conduct alleged is that of an intentional tort. For SD to sufficiently allege a claim of
negligent infliction of emotional distress, she would have to allege that she was a “bystande
who, although never in danger, observed or later came upon the effects of the defendants
negligence upon another. Calderon
v. Royal Park, LLC, 96 Mass. App. Ct. 49, 57 (2019); See
Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 340 (1983). As stated supra, there are no
allegations that Bowman’s act of pushing JD down the stairs was one of negligence.
Accordingly, Plaintiff SD’s negligent infliction of emotional distress claim fails.
Notwithstanding, the Complaint does not allege that Plaintiff SD was within the zone of
danger or had “substantial physical injury and proof that the injury was caused by the
defendant’s negligence.” Accordingly, even if the Complaint had alleged that the plaintiffs
injuries arose from the Defendants’ negligence, it fails to allege that Plaintiff SD was in the zone
of danger or suffered “substantial physical injury.” See Migliori v. Airborne Freight Corp., 426
Mass. 629, 637-638 (1998) (bystander doctrine applied where rescuer plaintiff came upon
injured victim after accident had occurred); Stockdale v. Bird & Son, Inc., 399 Mass. 249,
252-253 (1987) (bystander doctrine applied where plaintiff mother did not learn of accident until
several hours after it occurred and did not see injuries to son until later); Cohen v. McDonnell
Douglas Corp., 389 Mass. 327, 342-344 (1983) (bystander doctrine applied where plaintiff
mother did not learn of victim's death until seven hours after accident and did not observe
accident or victim).
Within this analytical framework Count II fails to allege facts sufficient to plead a
plausible claim of negligent infliction of emotional distress.
E. PLAINTIFFS’ LOSS OF CONSORTIUM CLAIM FAILS AS A MATTER
OF LAW
Massachusetts provides a cause of action to parents for loss of consortium with their child
where the child has been “seriously injured” by a tortfeasor. See Mass. Gen. Laws ch. 231, §
85X. See also Doe v. Dennis-Yarmouth Reg'l Sch. Dist., 578 F. Supp. 3d 164, 182-83 (D. Mass.
2022). As established by the statute, in order to recover damages under a loss of consortium
claim, the Plaintiffs must plead an underlying tort action (as claims for loss of consortium are
derivative claims), which they have not done here. As such, this claim fails as a matter of law.
See Doe v, Dennis-Yarmouth Reg'l Sch. Dist., 578 F. Supp. 3d 164, 182-83 (D. Mass. 2022),
Indeed, in joe v. Dennis-Yarmout! 1 Sch, Dist., the Plaintiffs’ loss of consortium claim was
dismissed because the Plaintiffs did not plead an underlying tort claim. See Id. See also
Harrington v. Attleboro, 172 F. Supp. 3d 337, 354 (D. Mass. 2016); Doe v. Bradshaw, No.
11-cv—-11593-DPW, 2013 WL 5236110, at *11 (D-Mass. Sept. 16, 2013); Senav.
Commonwealth, 417 Mass. 250, 264 (1994).
Alternatively, Courts have routinely determined that the plain text of M.G.L. ch. 231, §
85X does not include government entities, including municipalities. M.G.L. c. 231 § 85X states,
“The parents of a minor child or an adult child who is dependent on his parents for support shall
have a cause of action for loss of consortium of the child who has been seriously injured against
any person who is legally responsible for causing such injury.” See M.G.L. c. 231 § 85X
(emphasis added). Courts have declined to extend the meaning of “person” to include
municipalities. See Harrington v. Attleboro, 172 F. Supp. 3d 337, 354 (D. Mass. 2016); Doe v.
Bi radshaw, No. 11-cv—11593-DPW, 2013 WL 5236110 (D.Mass. Sept. 16, 2013); Doe v.
Dennis-Yarmouth Reg'l Sch. Dist., 578 F. Supp. 3d 164, 182-83 (D. Mass. 2022), Thomas v.
Cc helmsford, 267 F. Supp. 3d 279 (D. Mass. 2017). Only one (1) court has extended the meaning
of “person” to include a governmental entity. See Doe I vs. Northampton, D. Mass., No. CV
19-30027-MGM (Mar. 6, 2023). The Defendants respectfully request that this Court decline to
extend the meaning of the word “person” within the context of M.G.L. ¢. 231, § 85X to include
governmental entities, including municipalities.
As such, the Plaintiffs’ claims for loss of consortium must be dismissed as a matter of
law.
Til. CONCLUSION
WHEREFORE, for the reasons stated herein, Defendants, City of Boston and Boston
Public Schools, hereby request that their Motion to Dismiss be ALLOWED, and that judgment
of dismissal with prejudice enter in their favor as to the two counts asserted against them in this
action and the Plaintiffs’ claim for loss of consortium be dismissed as a matter of law.
Respectfully submitted,
The Defendants
City of Boston and
Boston Public Schools
Through its Attorneys,
Adam Cederbaum, Corporation Counsel,
Ci
Edward J. DelSignore, BBO#703 100
Assistant Corporation Counsel
Office of the Legal Advisor
Boston Public Schools
2300 Washington Street, 4th Floor
Boston, MA 02119
edelsignore@bostonpublicschools.org
(617) 935-9320
CERTIFICATE OF COMPL E WITH SU WR RT RULE 9C
I, Edward DelSignore, counsel for the Defendants, City of Boston and Boston Public Schools, in
the above-captioned matter, hereby certify that I initiated and conducted conferences with
opposing counsel on November 15, 2023 in an attempt to make a good faith effort to narrow
areas of disagreement that may be resolved through amendment of the pleading, curative action
in respect to defective service, or other means related to the subject of the motion to dismiss.
This conference was held on November 15, 2023 at approximately 9:30 AM with Attorney
Joseph Koltun, counsel for the Plaintiffs, The parties were unable to narrow their area of
disagreement.
Cc T' R E
Thereby certify that on this 27th day of November, 2023, in compliance with Paragraph No. 1 of
the Order Concerning Email Service In Cases Under Rule 5(b) of the Mass. Rules of Civi
Procedure issued by the Supreme Judicial Court and dated March 30, 2020, I served the
foregoing upon Plaintiffs’ counsel by emailing a copy thereof to counsel of record at the
following address and to Ashley Bowman by mail.
Daniel T.S. Hefferman
Joseph J. Koltun
KOTIN, CRABTREE & STRONG LLP
Three Newton Executive Park
2223 Washington Street, Suite 101
Newton, MA 02462
(617) 227-7031
dhefferman@kcslegal.com
jkoltun@kcslegal.com
Ashley Bowman
430 Brook Bend Road
Hanson, MA 02341
GC 4S
Edward J. DelSignore
10
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COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUFFOLK SUPERIOR COURT C.A. NO. 2384CV02160 HARKER KEE RE REE RAR AERE EERE ERRER GREER SD, individually and on behalf of her minor grandson, JD. Plaintiffs os V. Tae Ba o City of Boston, Boston Public Schools he im and Ashley Bowman MER AK LARA ALAR E RE ERE RR ER RIERA IO DEFENDANTS’, CITY OF BOSTON AND BOSTON PUBLIC SCHOOLS, MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TODISMISS 5 NOW COMES Defendants, City of Boston and Boston Public Schools (collectively, “City” or “Defendants”)! and, pursuant to Mass. R. Civ. P. 12(b)(6), hereby submit the within Memorandum of Law in Support of their Motion To Dismiss. I FACTS This is an action brought on behalf of the minor Plaintiff, ID, by his grandmother, SD, stemming from personal injuries suffered when, allegedly, a teacher pushed JD down stairs. According to the Plaintiffs’ Complaint (“Complaint”), on or about January 13, 2022, during the dismissal process, Ashley Bowman (“Bowman”), a former employee of Boston Public Schools as a teacher at Higginson Elementary School, took JD outside. As JD began to leave the school premises, Bowman is alleged to have shoved JD in the back, sending him down the stairs. See ! Boston Public Schools is not an independent legal entity. It is a department of the City of Boston. See Stratton v. Boston, 731 F. Supp. 42, 46 (D. Mass. 1989). Complaint, 10-18. Plaintiffs allege that, as a direct and proximate result of Bowman’s actions, JD suffered physical and emotional injuries, including back and stomach pain, and emotional trauma. The Plaintiffs filed their Complaint on or about September 26, 2023, bringing claims against City of Boston and Boston Public Schools (Count I, Negligence, and, Count II, Negligent Infliction of Emotional Distress). The Plaintiffs also brought two claims against the individual defendant, Ashley Bowman, The Defendants here move to dismiss Counts I and II of Plaintiff's Complaint. IL ARGUMENT A. LEGAL STANDARD When deciding a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), the Court must determine whether the plaintiffs have stated a legally cognizable claim by making allegations that, if true, would show that the plaintiffs are entitled to relief. See Bell Atl, Corp. v. Twombly, 550 U.S. 544, 557 (2007) (interpreting Rule 12(b)(6) to require allegations with “enough heft to show that the pleader is entitled to relief’). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl Corp., 550 U.S. at 570. In considering the merits of a motion to dismiss, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos y. Am. Airlines, Inc. 199 F.3d 68, 69 (1st Cir, 2000). Yet “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” do not suffice to state a cause of action. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Accordingly, a complaint does not state a claim for relief where the well-pled facts fail to warrant an inference of anything mor ethan the mere possibility of misconduct. Id, at 679. In Iannachino v. Ford Motor Co., 451 Mass. 623, 635 (2008), the Supreme Judicial Court (“SJC”) adopted the standards set forth by the United States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) for reviewing the adequacy of complaints pursuant to Mass. R. Civ. P. 12(b)(6). In Iannachino, the SJC specified the standard of review on a motion to dismiss for failure to state a claim: “While a complaint attacked by a...motion to dismiss does not need detailed factual allegations...a plaintiff’s obligation to provide the “grounds” of his entitle[ment] to relief” requires more than labels and conclusions...Factual allegations must be enough to aise a right to relief above the speculative level...[based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact)...” What is required at the pleading stage are factual “allegations plausibly suggesting (not merely consistent with)” an entitlement to relief” Iannachino, 451 Mass. 623, 635-36 (2008) {internal citations omitted). “While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations.” Ashcroft v, Iqbal, 556 U.S. 662, 664 (2008). To survive a motion to dismiss, the Complaint must contain sufficient factual matters to state a claim to relief. That claim must be plausible on its face to allow a judge to draw a reasonable inference that the defendant is liable to the plaintiff. “[TJhe tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements...” Ashcroft, 556 U.S. at 664, citing Twombly, 550 U.S. at 555. Where a complaint pleads facts that are “merely consistent” with a defendant’s liability, it “stops short of the line between possibility and plausibility of entitlement to relief.” Twombly, 550 U.S. at 557. B. THE DEFENDANTS ARE NOT LIABLE FOR THE INTENTIONAL TORTS OF THEIR EMPLOYEE The Massachusetts Tort Claims Act (“MTCA”) creates “a cause of action against public employers for the negligent or wrongful acts or omissions of of their employees acting within the scope of their employment.” n_v. Sale: 446 Mass. 525 (2006). Intentional torts are expressly exempted from [sic] the Massachusetts Tort Claim Act, so public employers are not liable for the intentional torts of their employees. Luthy v. Proulx, 464 F. Supp. 2d 69, 76 (D. Mass. 2006); See Mass. Gen. Laws. ch. 258, § 10(c), Indeed, Section 2 of the MTCA provides in relevant part that “[p]ublic employers shall be liable for injury...caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances...” Mass. Gen. Laws, ch. 258, § 2. Thus, “the City could be liable under [the MTCA] for the negligence of defendant [employees] acting within the scope of their duty.” Lewis v. Kendrick, 944 F.2d 949, 953 (1st Cir. 1991). However, the MTCA “shall not apply to...any claim arising out of an intentional tort, including. ..battery.” Sce Mass. Gen. Laws. ch, 258, § 10(c). Here, the Complaint alleges that Bowman intentionally pushed JD down the stairs causing him injury. Such alleged conduct constitutes an intentional tort by a BPS cmployee-to which the Defendants are immune from liability under G.L. ch. 258 § 10(c). Although the Complaint attempts to characterize Bowman’s alleged conduct as negligence rather than an intentional tort, the only reasonable inference to be drawn from the alleged facts-that Bowman pushed Plaintiff JD down a flight of stairs—is that such conduct was intentional, not accidental. Further, Counts HI (Massachusetts Civil Rights Act) and IV (42 U.S.C. § 1983) against Bowman individually for her act of pushing Plaintiff JD down the stairs contradict her allegations that such conduct was negligent. Accordingly, Count I, against the City and BPS should be dismissed because they are immune from liability for the intentional torts of their employees pursuant to G.L. ch. 258. C. THE DEFENDANTS CANNOT BE HELD LIABLE UNDER A RESPONDEAT SUPERIOR THEORY AS BOWMAN WAS NOT ACTING WITHIN HER SCOPE OF EMPLOYMENT WHEN SHE PUSHED PLAINTIFF JD. Alternatively, The Plaintiffs allege that “[T]he City and BPS are responsible for the negligent or wrongful acts of their employees pursuant to Mass. Gen. Laws c. 258, § 2 and the doctrine of respondeat superior.” Sec Complaint at 40. Under the doctrine of respondeat superior, “an employer, or master, should be held vicariously liable for the torts of its employee, or servant, committed within the scope of employment.” Dias v. Brigham Med. Assocs.. Inc. 438 Mass. 317, 319-320 (2002) (emphasis added). [The Court] has stated that “[t]he conduct of an agent is within the scope of employment if it is the kind he is employed to perform...if it occurs substantially within the authorized time and space limits...and if it is motivated, at least in part, by a purpose to serve the employer.” Mosko v. Raytheon Co., 416 Mass. 395, 399 (1993). If the employee was acting outside the scope of the employee's office or employment, the school retains its immunity from liability. See Doe v. Old Rochester Reg'l Sch, Dist., 56 F. Supp. 2d 114, 121 (D. Mass. 1999). Here, the conduct alleged in the Complaint-that a teacher pushed a student down a flight of stairs—is unequivocally outside the scope of the employee’s job responsibilities. Indeed, it cannot reasonably be argued that pushing a student down a flight of stairs could be motivated by a desire to serve BPS. See Doe v. Fournier, 851 F. Supp. 2d 207, 226 (D. Mass. 2012), on reconsideration in part (Mar. 20, 2012). Further, both Massachusetts Law and Boston Public Schools policy prohibit corporal punishment by school district employees.’ See M.G.L, c. 71, Section 37G; See also Complaint at Exhibit D. Viewing the allegations in the light most favorable to the Plaintiffs, Bowman shoved a student down a flight of stairs causing him injury. Neither state law nor BPS policy allow for such intentional physical acts of harm toward children by school employees. Accordingly, ? The Defendants request that this Court take judicial notice of BPS’ policy against corporal punishment. See Complaint at Exhibit D. Bowman was acting outside the scope of her employment as a BPS employee when she pushed Plaintiff JD down the stairs. See Complaint at 15, 16. Accordingly, dismissal of Count I is appropriate. D. PLAINTIFFS’ NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIM FAILS AS A MATTER OF LAW Plaintiff’s negligent infliction of emotional distress claim also fails because it arises out of an allegation that a BPS employee committed an intentional tort. To state a claim for negligent infliction of emotional distress, Plaintiff SD must plead “(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case.” Sullivan v. Boston Gas Co., 414 Mass. 129, 132 (1993). Here, the allegations in the Complaint fail to allege facts sufficient to plead a plausible claim of negligent infliction of emotional distress because there are no underlying allegations of negligence that caused Plaintiff JD’s emotional distress. In other words,the Complaint alleges that Bowman pushed Plaintiff JD down the stairs—an intentional but not negligent act-which in turn caused Plaintiff JD to suffer emotional harm. Such allegations fail to establish the existence of an underlying negligent act and therefore, Plaintiff SD’s claim of negligent infliction of emotional distress against the City and BPS fails. Plaintiff SD’s claim of negligent infliction of emotional distress similarly fails because the factual allegations do not establish the existence of any negligent conduct because the conduct alleged is that of an intentional tort. For SD to sufficiently allege a claim of negligent infliction of emotional distress, she would have to allege that she was a “bystande who, although never in danger, observed or later came upon the effects of the defendants negligence upon another. Calderon v. Royal Park, LLC, 96 Mass. App. Ct. 49, 57 (2019); See Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 340 (1983). As stated supra, there are no allegations that Bowman’s act of pushing JD down the stairs was one of negligence. Accordingly, Plaintiff SD’s negligent infliction of emotional distress claim fails. Notwithstanding, the Complaint does not allege that Plaintiff SD was within the zone of danger or had “substantial physical injury and proof that the injury was caused by the defendant’s negligence.” Accordingly, even if the Complaint had alleged that the plaintiffs injuries arose from the Defendants’ negligence, it fails to allege that Plaintiff SD was in the zone of danger or suffered “substantial physical injury.” See Migliori v. Airborne Freight Corp., 426 Mass. 629, 637-638 (1998) (bystander doctrine applied where rescuer plaintiff came upon injured victim after accident had occurred); Stockdale v. Bird & Son, Inc., 399 Mass. 249, 252-253 (1987) (bystander doctrine applied where plaintiff mother did not learn of accident until several hours after it occurred and did not see injuries to son until later); Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 342-344 (1983) (bystander doctrine applied where plaintiff mother did not learn of victim's death until seven hours after accident and did not observe accident or victim). Within this analytical framework Count II fails to allege facts sufficient to plead a plausible claim of negligent infliction of emotional distress. E. PLAINTIFFS’ LOSS OF CONSORTIUM CLAIM FAILS AS A MATTER OF LAW Massachusetts provides a cause of action to parents for loss of consortium with their child where the child has been “seriously injured” by a tortfeasor. See Mass. Gen. Laws ch. 231, § 85X. See also Doe v. Dennis-Yarmouth Reg'l Sch. Dist., 578 F. Supp. 3d 164, 182-83 (D. Mass. 2022). As established by the statute, in order to recover damages under a loss of consortium claim, the Plaintiffs must plead an underlying tort action (as claims for loss of consortium are derivative claims), which they have not done here. As such, this claim fails as a matter of law. See Doe v, Dennis-Yarmouth Reg'l Sch. Dist., 578 F. Supp. 3d 164, 182-83 (D. Mass. 2022), Indeed, in joe v. Dennis-Yarmout! 1 Sch, Dist., the Plaintiffs’ loss of consortium claim was dismissed because the Plaintiffs did not plead an underlying tort claim. See Id. See also Harrington v. Attleboro, 172 F. Supp. 3d 337, 354 (D. Mass. 2016); Doe v. Bradshaw, No. 11-cv—-11593-DPW, 2013 WL 5236110, at *11 (D-Mass. Sept. 16, 2013); Senav. Commonwealth, 417 Mass. 250, 264 (1994). Alternatively, Courts have routinely determined that the plain text of M.G.L. ch. 231, § 85X does not include government entities, including municipalities. M.G.L. c. 231 § 85X states, “The parents of a minor child or an adult child who is dependent on his parents for support shall have a cause of action for loss of consortium of the child who has been seriously injured against any person who is legally responsible for causing such injury.” See M.G.L. c. 231 § 85X (emphasis added). Courts have declined to extend the meaning of “person” to include municipalities. See Harrington v. Attleboro, 172 F. Supp. 3d 337, 354 (D. Mass. 2016); Doe v. Bi radshaw, No. 11-cv—11593-DPW, 2013 WL 5236110 (D.Mass. Sept. 16, 2013); Doe v. Dennis-Yarmouth Reg'l Sch. Dist., 578 F. Supp. 3d 164, 182-83 (D. Mass. 2022), Thomas v. Cc helmsford, 267 F. Supp. 3d 279 (D. Mass. 2017). Only one (1) court has extended the meaning of “person” to include a governmental entity. See Doe I vs. Northampton, D. Mass., No. CV 19-30027-MGM (Mar. 6, 2023). The Defendants respectfully request that this Court decline to extend the meaning of the word “person” within the context of M.G.L. ¢. 231, § 85X to include governmental entities, including municipalities. As such, the Plaintiffs’ claims for loss of consortium must be dismissed as a matter of law. Til. CONCLUSION WHEREFORE, for the reasons stated herein, Defendants, City of Boston and Boston Public Schools, hereby request that their Motion to Dismiss be ALLOWED, and that judgment of dismissal with prejudice enter in their favor as to the two counts asserted against them in this action and the Plaintiffs’ claim for loss of consortium be dismissed as a matter of law. Respectfully submitted, The Defendants City of Boston and Boston Public Schools Through its Attorneys, Adam Cederbaum, Corporation Counsel, Ci Edward J. DelSignore, BBO#703 100 Assistant Corporation Counsel Office of the Legal Advisor Boston Public Schools 2300 Washington Street, 4th Floor Boston, MA 02119 edelsignore@bostonpublicschools.org (617) 935-9320 CERTIFICATE OF COMPL E WITH SU WR RT RULE 9C I, Edward DelSignore, counsel for the Defendants, City of Boston and Boston Public Schools, in the above-captioned matter, hereby certify that I initiated and conducted conferences with opposing counsel on November 15, 2023 in an attempt to make a good faith effort to narrow areas of disagreement that may be resolved through amendment of the pleading, curative action in respect to defective service, or other means related to the subject of the motion to dismiss. This conference was held on November 15, 2023 at approximately 9:30 AM with Attorney Joseph Koltun, counsel for the Plaintiffs, The parties were unable to narrow their area of disagreement. Cc T' R E Thereby certify that on this 27th day of November, 2023, in compliance with Paragraph No. 1 of the Order Concerning Email Service In Cases Under Rule 5(b) of the Mass. Rules of Civi Procedure issued by the Supreme Judicial Court and dated March 30, 2020, I served the foregoing upon Plaintiffs’ counsel by emailing a copy thereof to counsel of record at the following address and to Ashley Bowman by mail. Daniel T.S. Hefferman Joseph J. Koltun KOTIN, CRABTREE & STRONG LLP Three Newton Executive Park 2223 Washington Street, Suite 101 Newton, MA 02462 (617) 227-7031 dhefferman@kcslegal.com jkoltun@kcslegal.com Ashley Bowman 430 Brook Bend Road Hanson, MA 02341 GC 4S Edward J. DelSignore 10