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COMMONWEALTH OF MASSACHUSETTS
BERKSHIRE, ss. SUPERIOR COURT
CIVIL ACTION
NO. 19-0236
EUGENE V. ANDERSON as Personal Representative of the Estate for
TESSA KATHLEEN MARY ANDERSON
Plaintiff
BARD COLLEGE, ANTHONY DOYLE as Personal Representative of the
Estate of KAREN ELAINE BEAUMONT BIGGS, ROBERT GRAVES,
JUDITH WIN and MADELINE ALLEN
Defendants
MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANTS ROBERT
GRAVES AND MADELINE ALLEN/S MOTION FOR SUMMARY JUDGMENT and
EUGENE V. ANDERSON’S CROSS-MOTION FOR SUMMARY JUDGMENT
The plaintiff, Eugene V. Anderson, brings this wrongful death action on behalf of the
Estate of Tessa Anderson against the defendants, Bard College at Simon’s Rock (“Bard” or
“School”) and four individuals. This case arises out of the death by suicide of Tessa Anderson at
the’ School.
The defendants, Robert Graves and Madeline Allen, individually, now move for
summary judgment pursuant to Mass. R. Civ. P. 56.! All the defendants also move to dismiss
plaintiff's contract claim. In addition, Bard College moves for summary judgment regarding
nforcement of the charitable limitation. On the contrary, the plaintiff seeks to have this case
decided under either the laws of New York or Oregon, essentially to avoid the charitable
limitation.
' The standard that this Court applies to the summary judgment motion is well established. “[A] party moving for
summary judgment in a case in which the opposing party {has} the burden of proof at trial is entitled to summary
judgment if he [or she] demonstrates . . that the party opposing the motion has no reasonable expectation of
proving an essential element of that party’ 's case,” Brooks v, Peabody & Arnold, LLP, 71 Mass. App. Ct. 46, 50
(2008), quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The opposing party cannot
simply rest on the pleadings or mere assertions that there are disputed facts. See, e.g., Changv. Winklevoss, 95
Mass. App. Ct. 202, 214 (2019) (court may not credit factual assertions “not supported by the summary judgment
record”). Although this Court must draw all reasonable inferences in favor of the nonmovant, that does not require
the Court to accept conclusory allegations, draw improbable inferences, or engage in unsupported speculation. A
party cannot avoid or obtain summary judgment by making factual assertions unsupported by evidence.
A. GRAVES AND ALILEN’S MOTION FOR SUMMARY JUDGMENT
ON THE NEGLIGENCE CLAIMS
I Relevant Facts
The following facts are taken from the summary judgment record and the exhibits
attached thereto, with all reasonable inferences in favor of the plaintiff.
Ms. Anderson was enrolled as a student at Bard College in Great Barrington from
approximately September 2013, at the age of 16, until her death by suicide on November 14,
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2016, at the age of 19. Her time at the college was unfortunately troubled, and there were several
concerning incidents during her enrollment that came to the attention of various college
employees, including Robert Graves, the Dean of Campus Life, and Madeline Allen, the
Residence Director responsible for Ms. Anderson’s dorm during her final year at the School.
On November 22, 2013, just mont after Ms. Anderson’s enrollment, Residence
Director Mark Mirasol received an email 1m a student stating that Ms. Anderson had “insisted”
that the student’s friend “make out with her” and had threatened to harm herself otherwise. The
student also wrote that Ms. Anderson had previously disclosed that “she used to cut herself with
some frequency but has not done so for a couple months.” Mirasol forwarded this email to
defendant Robert Graves, the School’s Dean of Campus Life. He also informed Graves that,
according to the reporting student, Ms. Anderson had been holding a razor during the November
2013 incident. Neither Mirasol nor the reporting student identified or characterized Ms.
Anderson’s behavior during this incident as a suicide attempt.
A few months later, on February 9, 2014, a campus security officer performed a wellness
check on Ms. Anderson at the request of another student, who reported that Ms. Anderson was
“not acting herself.” The security officer prepared a report, which detailed that Ms. Anderson
was alert and oriented, but admitted to drinking vodka. Ms. Anderson also had five cuts on her
left arm, near the wrist. The security officer asked Ms. Anderson about the cuts. She declined
medical care, but admitted that she had a history of cutting herself. She also declined counseling
services. The security officer sent a copy of the report to Graves, who followed up with Ms
Anderson and referred her for mental health counseling. The report did not identify or
characterize Ms. Anderson’s behavior during this incident as a suicide attempt.
Ms. Anderson received mental health counseling the School in February 2014. She had
also previously received counseling in September 2013. At both times, to different counselors,
Ms. Anderson disclosed that she had a history of self-harm and suicidal ideation, and that she
had previously engaged in self-harm in the form of cutting. In February 2014, Ms. Anderson also
disclosed that her cutting had increased in frequency: where before she would only cut herself
once or twice a year, at Bard she had cut herself at least six times during the previous semester.
Ms. Anderson further disclosed that she had previously attempted to commit suicide when she
was in fifth grade, when she had attempted to hang herself. Finally, Ms. Anderson admitted that
she continued to experience suicidal thoughts, though she denied any intention to act on them.
These counseling sessions were kept confidential, and none of the information was reported to
Graves.
After February 2014, no further incidents of concern involving Ms. Anderson were
reported to Graves during the 2013-14 or 2014-15 academic years.” In May 2015, Ms. Anderson
completed her initial program at Bard and received her associate’s degree. She elected to stay on
for an additional two years to pursue her bachelor’s degree. During the 2015-16 academic year,
no incidents of concern involving Ms. Anderson were reported to Graves, although Ms.
Anderson sought and received permission to graduate early, at the end of the Fall 2016 (rather
than Spring 2017) semester.
During the Fall 2016 semester, Ms! Anderson resided in the Pibly House residence hall,
where Madeline Allen was Residence Director. Allen had no information regarding either the
November 13 or February 2014 incidents that had been reported to Graves. She also had no
information regarding any other previous incidents of concern involving Ms. Anderson.
On Friday, September 16, 2016, a friend of Ms. Anderson’s from another school called
Judith Win, a mental health counselor at ¢ School, to express concerns about Ms. Anderson.
Win wrote a summary of the phone call, which detailed that Ms. Anderson told her friend she
“had a lot going on” and “didn’t want to think about things anymore,” and that Ms. Anderson
was planning to cut off communication for a while. The summary further detailed that the friend
reported that Ms. Anderson was drinking heavily; that Ms. Anderson’s boyfriend was not present
to support her; that Ms. Anderson and her boyfriend might have been having relationship
problems; that Ms. Anderson always had ‘(depressive tendencies” and could be prone to
overreacting; that Ms. Anderson was stressed about her senior thesis, which was due at the end
of the semester; and that the friend did not believe Ms. Anderson was suicidal.
That same day, Win emailed Allen, stating that she had “received a call from a student at
another school who is worried about a friend here” and who “hoped that someone who knows
her would be aware that she was struggling and keep an eye on her discreetly.” Win indicated
that she would attach a summary of the conversation, but did not do so, and did not identify Ms.
Anderson in the body of the email. Allen replied to Win that evening requesting additional
information, but explained that she was on a weekend off and would not be reliably accessible
until the following Monday. Win sent the summary to Allen as an email attachment and stated, “I
think it can wait until Monday.”
On Monday, September 19, Allen shared Win’s information about Ms. Anderson with
another Residence Director, Mickey Spaulding. She also sent a follow-up email to Win, stating
“T shared this information with [Spaulding], who knows [Ms. Anderson] a little better than I do
We will both keep a discrete [sic] eye on her and see how she seems to be doing.” Thereafter,
Allen observed Ms. Anderson to appear positive and upbeat both in her direct interactions with
? The plaintiff points to evidence in the summary judgment record that in March 2014, Ms. Anderson reported that
she had been raped on campus by another student. Although there is evidence that the incident was known to various
employees at Simon’s Rack, there is nothing to suggest that either Graves or Allen, specifically, knew about this
incident. '
Allen and in her interactions with other Pibly House residence, Allen continued to observe Ms.
Anderson during the remainder of the semester and did not see anything that caused her concern
for Ms. Anderson’s well-being. No one other than Win reported any concerns about Ms.
Anderson to Allen.
Win’s information about Ms. Anderson was not reported to Graves. No other incidents of
concern involving Ms. Anderson were reported to Allen or to Graves prior to Ms. Anderson’s
death on November 14, 2016.3
IL Analysis
The plaintiff brings claims for negligence (Count 4), conscious pain and suffering (Count
5), and punitive damages (Count 6) against Graves. The plaintiff also brings the same claims
(Counts 10, 11, and 12, respectively) against Allen.
The defendants now move for s ummary judgment on Counts 4 and 10 on the ground
neither Allen nor Graves had actual knowledge of a previous suicide attempt by Ms. Anderson,
and. therefore neither can be held liable under Nguyen v. Massachusetts Inst. of Tech., 479 Mass.
436 (2018). The plaintiff has filed a cross- mo tion for summary judgment on the same claims.‘
Dzung Duy Nguyen, sets out the relevant standards against which the present motions
must be measured. Nguyen involved a suicide of a student at a university, and established the
circumstances under which a university has a duty of care to prevent a student from committing
suicide and the steps that should be taken When that duty is implicated. In Nguyen, the Supreme
Judicial Court held that nonclinicians in a iversity or college setting have a “limited” duty to
prevent student suicide. Nguyen, 479 Mass. at 457. This duty “is created only by actual
knowledge of a student’s suicide attempt that occurred while enrolled at the university or
recently before matriculation, or of a student’s stated plans or intentions to commit suicide.” Jd.
Here, the undisputed facts demonstrate that Ms. Anderson did not state a plan or intention to
commit suicide. Indeed, during her counseling in February 2014, Ms. Anderson denied any such
intention. The question, therefore, is whether Allen or Graves had actual knowledge of any facts
that constituted a suicide attempt by Ms. derson during her time at Bard.
3 The plaintiff points to evidence in the summary judgment record that in October 2016, Ms. Anderson (1) attempted
to commit suicide by hanging in her dorm room; (2) overdosed on benzodiazepines, alcohol, and other drugs in the
dorm bathroom; (3) was involved in a car crash in which she drove into a tree; and (4) fainted during a rehearsal for
her senior thesis play, following which she was taken to Fairview Hospital where bloodwork records (provided to
Bard before Ms. Anderson’s death) showed positive results for benzodiazepines and cannabinoids. The plaintiff also
describes, in extensive detail, Ms. Anderson’s interactions with Professor Karen Beaumont Briggs, whose apartment
she stayed at on the night of November 11, 2016, Just days before her death on November 14. However, there is no
evidence — and the plaintiff does not argue — that either Graves or Allen knew about any of these incidents.
* The claims for conscious pain and suffering and punitive damages are derivative of the negligence claims, and
therefore neither the parties nor the court discuss them separately; the sole issue before the court is the viability of
the negligence claims against Graves and Allen (Counts 4 and 10, respectively).
5 It is questionable whether Ms. Anderson’s suicide in fifth grade would qualify as a “suicide attempt . . . recently
before matriculation” (emphasis added), Nguyen, 479 Mass. at 457, even considering Ms. Anderson’s early
enrollment at the age of 16. Regardless, however, here is no evidence that Allen or Graves knew of this attempt.
4
1. Madeline Allen
Although there is evidence that Ms! Anderson attempted suicide while at Bard in October
2016, there is no evidence that Allen knew, about this incident. The only. relevant information
Allen had was Win’s September 2016 summary of a conversation with a student at another
school who expressed concern about Ms. Anderson’s well-being. While undoubtedly concerning,
this information does include any detail, or even speculation, about a suicide attempt by Ms.
Anderson, whether past or contemplated.
Therefore, the undisputed facts demonstrate that Allen did not have actual knowledge of
any suicide attempt by Ms. Anderson during her time at the School. She therefore did not have
the limited duty to prevent suicide imposed on nonclinicians by Nguyen, and is entitled to
summary judgment on Count 10 as it relates to this theory of liability.
2. Robert Graves
The analysis is less straightforward regarding Graves. As with Allen, there is no evidence
that Graves knew of Ms. Anderson’s suicide attempt in October 2016. However, Graves did
know of the November 2013 incident, during which Ms. Anderson threatened to harm herself
while holding a razor, and the February 2014 incident, during which Ms, Anderson admitted to
cutting herself recently. Graves argues persuasively that he could not be expected to construe
either of these incidents as suicide attempts under Nguyen because they were not, in fact, suicide
attempts. Graves further argues that, as a nonclinician, he could not reasonably be expected to
identify either incident as a suicide attempt when neither Mirasol’s email nor the campus security
officer’s report characterized them as such,
The plaintiff has, however, sct forth at least some evidence suggesting that the November
2013 incident and/or the February 2014 incident should reasonably have been viewed as suicide
attempts. Specifically, the plaintiff has disclosed the expert testimony of Dr. Thomas Joiner, an
academic psychologist, who is anticipatedito testify that Ms. Anderson’s threats of, and actual,
self-harm are “properly viewed” as suicide attempts in light of her age (16 at the time of both
incidents) and other factors. Based on this|anticipated expert testimony, the plaintiff argues that,
even as a nonclinician, Graves should have been able to recognize one or both incidents as
suicide attempts even if those reporting the facts to him did not.
It is undisputed that Graves had “actual knowledge” of both incidents. Whether he had
“actual knowledge ofa. . . suicide attempt” (emphasis added) sufficient to impose liability under
Nguyen, therefore, turns not on the question of what facts Graves knew, but whether the facts of
either incident amount to a suicide attempt by Ms. Anderson. While the plaintiff's evidence on
this point is far from compelling, it is at least some evidence. “A tochold . . . is enough to survive
a motion for summary judgment.” Marr Equipment Corp. v. LT.O. Corp. of New England, 14
Mass. App. Ct. 231, 235 (1982).
The court cannot discount the possibility that a reasonable person would construe the
November 2013 or the February 2014 incident as constituting suicide attempts by Ms. Anderson,
5
and that Graves should have recognized them as such and initiated Bard’s suicide prevention
protocol. See Nguyen, 479 Mass. at 456 (“Reasonable measures by the university to satisfy a
triggered duty will include initiating its suicide prevention protocol if the university has
developed such a protocol”). Although thejevidence may not be particularly strong, it is not for
this court to grant summary judgment merely because the facts which one of the moving parties
offers appear more plausible than those wilich the opposing party offers or because it appears
that the opposing party is not likely to prevail at trial. Attorney General v. Bailey, 386 Mass. 367
(1982). Summary judgment may enter only when no genuine issue of material fact exists; and
on this record, I find that such facts exit.
Therefore, summary judgment must be denied as to so much of Count 4 as asserts a.
negligence claim against Graves based on Nguyen.
Ii. Voluntary Assumption of the/Risk
Irrespective of the “special relationship” theory identified in Nguyen, the plaintiff is also
proceeding on the alternative theory that Bard had a duty stemming from its voluntary
assumption of a duty of care. Massachusetts recognizes that “a duty voluntarily assumed must be
performed with due care,” and the SJC hag approved the principles pertaining to voluntary
assumption of a duty as set forth in the Restatement (Second) of Torts § 323 (1965). See, Mullins
v. Pine Manor College, 389 Mass. 47, 52 (1983). “If a person voluntarily assumes a duty or
undertakes to render services to another that should have been seen as necessary for her
protection, that person may be liable for harm caused because of the negligent performance of
his undertaking.” Thorson v. Mandell, 402 Mass. 744, 748 (1988)(policy prohibiting certain uses
of auditorium “was not an undertaking to ender services for the protection of its users.”).°
Section 323 of the Restatement (S. cond) of Torts states the requirements for an assumed
duty of care:
5 As stated in, Doe v. Irs. of Boston Coll.,|892 F.3d 67, 94-95 (1st Cir. 2018):
When Massachusetts courts have recognized certain legal duties imposed on universities
through their “voluntary assumption” of care, they have done so narrowly. See Nguyen v.
Mass. Inst. of Tech., 479 Mass. 436, 96 N.E.3d 128, 140-41 (2018) (discussing the
moder university-student relationship in Massachusetts tort law); Mullins, 449 N.E.2d at
336 (finding that a college undertook a duty to protect students against foreseeable
criminal acts of third parties because the school charged students a dormitory fee for this
|
service) (emphasis added).; Bash v, Clark Univ., No. 06745A, 2006 WL 4114297, at *4-5
(Mass. Super. Ct. Nov. 20, 2006) (i
inding no duty to protect a student from voluntary
consumption of illegal drugs because of Mullins's foreseeability, requirement); Doe v.
Westlake Acad., No. 97-cv-2187, 2000 WL 1724887, at *7 (Mass. Super. Ct. Nov. 21,
2000) (explaining the foreseeability limitation of a University's duty of care under the
student-university special relationship); Erickson v, Tsutsumi, No. CA199801842B, 2000
WL 1299515, at *2 (Mass. Super. ct. May 17, 2000) (recognizing that Mullins limited its
holding to situation in which a duty of care is traditionally imposed).
One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the other's person or things,
is subject to liability to the other for physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if:
(a) his failure to exercise such carejincreases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
The plaintiff asserts that the defendants voluntarily assumed the duty of reasonable care
in protecting Tessa from any self-inflicted harm. Specifically, he identifies certain
responsibilities including, enforcement of yelevant policies and procedures, education of staff,
maintain appropriate communication regarding student’s health issues, and notification to
1
parents. In essence, the theory is that once il the school discovered the threat of self-harm, they
ec
were bound under section 323 to take all n essary steps to prevent such conduct.
The mere fact that Bard voluntaril a greed to provide a myriad of support services to
Tessa is not sufficient to impose a duty. It tn ust also be shown that either (a) the failure to
exercise due care increased the risk of harm, or (b) the harm is suffered because of the students’
reliance on the undertaking. The increase in the risk of harm required is not simply that which
occurs when a person fails to do something that he or she reasonably should have. Section 323(a)
applies only when the defendant’s actions increased the risk of harm to plaintiff relative to the
tisk that would have existed had the defendant never provided the services initially. Put another
way, the defendant’s negligent performance must somehow put the plaintiff in a worse situation
than if the defendant had never begun performance.
Likewise with respect to the “reli ce” prong of section 323(b), the plaintiff must
establish “actual or affirmative reliance, reliance ‘based on specific actions or
representations which cause a person to ‘0; go other alternatives of protecting themselves.
The duty the plaintiff seeks to impose upon the School cannot be squared with section
323(a) or (b). The record, read in the light'most favorable to the plaintiff, reveals that Tessa may
have been at risk of harming herself. No affirmative action by the defendant’s employees,
however, increased that risk of self-harm. [To the contrary, it is undisputed that the employees
appropriately intervened offering support and encouragement, referred Tessa to counseling at the
School, and interacted with and monitored her behavior. In short, no action by School personnel
prevented Tessa from taking advantage ofithe support and encouragement being offered, nor did
they do anything to prevent her from seeking help on her own accord.
The record is similarly devoid of any proof that Tessa relied, to her detriment, on the
services offered by these same personnel.
The case of Jain v. State, 617 N.W.2d 293, 299 (Iowa 2000), a decision of the lowa
Supreme Court interpreting § 323, is ins ctive. In Jain, prior to a student’s suicide, university
employees were aware that the student had previously tried to commit suicide by inhaling
exhaust fumes, a university counselor had attempted to help the student through counseling, and
the university had a policy of informing parents when a student engaged in self-destructive
behavior. The plaintiff asserted that the university’s failure to inform the student’s parents of his
prior suicide attempt and other suicidal behaviors, contrary to the university’s policy, implicated
duties under section 323 of the Restatement.
, The Iowa Supreme Court, reviewing the trial court’s grant of summary judgment in favor
of the university, concluded that the record when viewed in the light most favorable to the
ff
plaintiff, established that the university o red to help the student cope with his suicidal
ideations, but that the student rebuffed these efforts. Id. at 299. The record also failed to establish
that the student “relied, to his detriment, on the services gratuitously offered by these same
personnel.” Id. at 299-300. In light of these facts, the court concluded that “no legal duty on the
part of the university arose under Restatement section 323 as a matter of law.” Id. at 300.
By contrast, in Leary v. Wesleyan Wniversity, 47 Conn. L. Rptr. 340, WL 865679 (2009),
the Connecticut Superior Court, applying section 323 of the Restatement, found that the
university police officers, by undertaking to transport the student to a hospital after he
complained of a panic attack, dropping him off without further investigating or securing medical
attention for him, breached a duty owed to|the student, who committed suicide shortly after
being dropped off at the hospital. Id. at 2009 WL 865679, at *6~8. The court found that the
decedent was in the custody or control of the defendant’s public safety officers and the officers
could have prohibited him from leaving the hospital before he received medical attention. There
was an issue of fact as to whether the decedent was free to leave and whether he had the capacity
to assume control over himself. Summary judgment was denied.
The record reveals that the School’s intervention in this case neither increased the risk
that Tessa would commit suicide nor led her to abandon other avenues of relief from her distress.
Therefore, no legal duty on the part of the School arose under Restatement section 323 as a
matter of law.
For the above reasons, the defendants’ motion for summary judgment is allowed, and the
plaintiff's motion‘is denied, as to Counts 10, 11 and 12 against Allen. The defendants’ motion
and the plaintiff's motion are both denied as to Counts 4, 5, and 6 against Graves.
B. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
ON THE CONTRACT CLAIM
Bard also seek to dismiss the contract claim as there was no contract between the parties
that was breached. The defendants contend that the complaint fails to allege that any particular
4
Bard College document, policy manual, or handbook includes any definite and certain promises
about the school's environment or service: or of an obligation to notify a student's parent of
significant safety concerns regarding the student. Secondly, the essential claim in this case is for
negligence in the failure to provide support to Tessa during this critical period. Putting the label
of “breach of contract” on the claim does not change its essential nature as a tort claim.
1'
The plaintiff, in its response, did net challenge the defendants’ argument that a contract
claim would not be applicable to this situation. In any event, such a claim would not be
appropriate. First, to assert a breach of contract claim, the plaintiff must allege (1) a valid
contract with Bard; (2) Bard breached the contract; and (3) the Estate suffered damages as a
result of the breach. Singarella v. Boston, 342 Mass. 385, 387 (1961) (listing elements of breach
of contract claim). The plaintiff has not identified any contract language, expressed or implied,
for any claim against Bard.
In addition, “a plaintiff may not designate what is essentially a personal injury claim as a
contract claim...” Ayala v. Boston Hous. Auth., 404 Mass. 689, 704 (1989). “[W]here ... the
‘essential nature of the plaintiff's claim is recovery for personal injuries founded on ...
negligence,' [her] action, whether it be denominated tort or contract, is governed by c. 258.”
Schenker v. Binns, 18 Mass. App. Ct. 404,|406 (1984), quoting Thomas v. Massachusetts Bay
Transp. Auth., 389 Mass. 408, 410 (1983)( (holding that where the essential nature of the
plaintiff's claim is recovery for personal injuries .» founded on negligence, the action, whether it
be denominated tort or contract, is governed by tort principles).
It is possible that 2 party who has a'relationship with another party may be entitled to
assert claims for breach of contract as well as tort claims. However, there are often instances in
the law when parties try to treat a contract claim as though it were a tort claim, or to treat a tort
claim as though it were a contract claim, in order to obtain a perceived advantage in terms of the
damages that may be awarded, the limitations period that may apply, or for other reasons.
Massachusetts courts use the “gist of the attion” doctrine to resolve disputes as to whether a
particular claim sounds in tort or in contract.
The gist of the plaintiff's claims is that Bard and its employees failed to exercise
reasonable care, i.¢., they were negligent. See Anthony’s Pier Four, Inc., 396 Mass. at 823 (court
!
looks to gist of action to determine whether plaintiff is attempting to avoid tort principles merely
by labelling the claim as contractual); see also Harris v. McIntyre, 2000 WL 942559 at *7
(Mass.Super.2000) (Gants, J.) (breach of implied warranty claim based on “failure ‘to construct
the buildings in a good and workmanlike tmanner[’] ... is different phraseology for claiming that
[defendant] was negligent in its construction”).
The plaintiff does not assert a claim “to recover from another money which in equity and
good conscience he is not entitled to keep)” The latter type of claim, according to the Supreme
Judicial Court, is usually advanced in a contract action. Kagan v. Lévenson, 334 Mass. 100, 103
(1956). Here, the plaintiff's claim—failing to protect a student from self-destructive behavior—
can be fairly characterized as negligence claim. It involves the type of “[conduct] resulting in
injuries to person or property.” Royal—Globe Ins. Co. v. Craven, 411 Mass. 629 (1992).
Accordingly, the defendant’s mntion to dismiss the contract claim (Count 17) is allowed.
9
C. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
The plaintiff has also moved for summary judgment regarding the state law that should
be applied to this civil precluding the imposition of the charitable cap on any recovery against
Bard College.
I, | Conflict of Laws
Initially, the plaintiff moves this court to order that either New York or Oregon law
applies to the wrongful death claims against the defendants. The defendants oppose this motion,
arguing that Massachusetts law applies. For the following reasons, the plaintiff's motion is
denied, and the law of Massachusetts applies to this case.
The parties agree that there is a conflict between the pertinent law of damages in
Massachusetts and both New York and Oregon and they disagree about which law governs. I
I
M
must apply “the conflict-of-laws rules of assachusetts, the forum State, in order to determine
which State’s law is applicable.” Clarendon Nat'l Ins. Co. v. Arbella Mut. Ins. Co., 60 Mass.
App. Ct. 492, 495 (2004). “Massachusetts follows ‘a functional choice-of-law approach that
responds to the interests of the parties, the States involved, and the interstate system as a whole.’
” UBS Financial Servs., Inc. y. Aliberti, 483 Mass. 396, 405 n.12 (2019), quoting Bushkin
Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 631 (1985). This approach is guided by the
Restatement (Second) of Conflict of Laws/(1971)(“Restatement”). UBS Financial, 483 Mass. at
405 n.12, quoting Clarendon Nat’l, 60 Mass. App. Ct. at 496.
The plaintiff's argument for the application of New York or Oregon law is related to the
charitable damage limitation. The parties agree that Massachusetts limits recovery in tort claims
against a recognized charity to $20,000; New York and Oregon have no such limitation on
damages. See G.L. c. 231, §85K. Given this conflict, the plaintiff asserts that either New York
or Oregon laws would be more appropriate as “Tessa and her parent were at all times domiciled
in and permanent residents of Orego: and “Bard College is a New York Corporation.” The
defendants contend that Massachusetts limitation of damages against Bard is an established and
thoughtful compromise in balancing the desirability of protection for charitable corporation
against the interest of the person who is injure.
The plaintiff asserts that Oregon has an interest in protecting its citizens, and in
compensating them for injuries, even those that may have occurred outside state boundaries.
However, “a generalized interest in protecting its citizens ... alone is insufficient to override ...
superior interest on all other fronts.” Romani v. Cramer, Inc., 992 F.Supp. 74, 79 (1998). In
contrast, Massachusetts, where the death occurred, has an interest in addressing injuries
occurring within state boundaries and regulating and supporting nonprofit business. This is
particularly true with respect to students and educational institutes. It is difficult to conclude that
Oregon’s interests outweigh those of the Commonwealth. As noted, the place of the death was in
Great Barrington, Massachusetts, where is. Anderson resided at the school, her treating
therapist worked, she received counseling|and was observed and monitored by several
individuals.
10
For New York or Oregon law to apply, the plaintiff must demonstrate that these states
have a more significant relationship to the occurrence and the parties. The Supreme Judicial
i
Court looks to the Restatement as an “obvi ou is source of guidance” to the courts when
determining which law to apply. Bushkin A socs., Inc. v. Raytheon Co., 393 Mass. 622, 632
(1985). The court will be guided by §§ 6 & 145 of the Restatement.
The considerations outlined in § 6 of the Restatement are: (a) the needs of interstate and
international systems, (b) policies of the forum, (c) policies of interested states and interest in the
particular issue, (d) protection of justified expectations, (e) basic policies underlying the
particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in
I
determining and applying law. The analysis of the factors outlined in the Restatement is
functional, determined by these choice-influencing considerations. Buskin Associates, Inc., 393
Mass. at 631.
There is no dispute that the death occurred in Berkshire County, Massachusetts. The law
gives the place of injury/death significant Weight by creating a presumption that its law should
apply. Cosme, 417 Mass. 646-647; Cohen|y. McDonnell Douglas Corp., 389 Mass. 327, 333-
334 (1990). The place where “the last event necessary to make an actor liable for an alleged tort
takes place.” Id. at 334.
1. Section 6 Factors
The first factor considers “the needs of the interstate and international systems.”
Restatement § 6(2)(a). “Choice-of-law rules, among other things, should seek to further
harmonious relations between states and to facilitate commercial intercourse between them ...
[A] state should have regard for the needs and policies of other states and of the community of
states.” Id., § 6, cmt. d. In this case, nothing suggests that the law applied to this matter would
affect harmonious relations or commerciallinteractions between Massachusetts and New York or
Oregon. For that reason, the first factor under § 6 “do[es] not point ... in any particular
direction.” Cosme, 417 Mass. at 649.
The second and third factors are “ e relevant policies of the forum” as compared to the
relevant policies and interests of the other two states. Restatement §§ 6(2)(b), (c). Massachusetts”
statutory scheme limiting the damages of tort victims is designed to protect charitable
corporations from the financial burden of large damage awards; to protect defendants from large
verdicts not to limit the compensation of plaintiffs. There is no dispute that Massachusetts law
would significantly restrict the damages plaintiff could recover. New York and Oregon law, i
contrast, does not place limits on recoverable damages in cases involving a recognized charity,
and would permit plaintiffs to recover the 1 amount of its damages, “for the loss of the
reasonably expected net income, services,|protection, care, assistance, society, companionship,
comfort, guidance, counsel, and advice ofjthe decedent to the persons entitled to the damages
recovered,” damages for conscious pain and suffering, and potential punitive damages. G.L.c.
229, §§ 2, 6. Although these policies differ in determining damages, the Oregon and New York
approach does not create a more significant relationship to the occurrence and parties by
expanding how damages may be assessed!
1
11
Moreover, Massachusetts has a much greater interest in this issue than either New York
or Oregon in enforcing its statutory policy of protecting nonprofits from significant damage
awards; a public policy that that repeatedly|been expressed by the legislature and SJC. Section
85K embodies a Massachusetts policy that ‘the funds of charitable institutions” should be
“devoted to charitable purposes,” so that charities are protected from “[being] impaired or wholly
destroyed” by extensive liability claims. English y. New England Med. Ctr. 405 Mass. 423, 429
(1989). The interest Massachusetts has expressed in protecting its charitable institutions from
insolvency is long standing. In Simpson v. Truesdale Hosp., Inc., 338 Mass. 787, 787-788
(1958), the SJC noted that “[w]bile as an otiginal proposition the doctrine [charitable limitation]
might not commend itself to us today, it has been firmly embedded in our law for over three
quarters of a century and we think that its “termination should be at legislative, rather than at
judicial, hands' (citations omitted).” Id. That the undisputed evidence establishes all of Bard’s
alleged liability occurred in Massachusetts/and were charitable rather than commercial in nature
heightens the charitable interests advanced|by the charitable cap.
Applying Oregon or New York law on this point precludes the Massachusetts loss-
cn
|
allocation policy of imposing a cap on ages for charitable institutions in tort cases, at least,
as applied within the borders of Massachusetts or as to Massachusetts residents. Equally
important, having a tort compensation system that would favor nonresidents over residents
would be inconsistent with fundamental fairness. Factors 2 and 3 align with the Commonwealth.
See Alpert v. Starwood Hotels, 2018 WL 5456493 at * 6 (D. Conn. Oct. 29, 2018) (Mexican law
applies to claims for injuries Massachusetts plaintiff incurred during stay at Mexican resort
because “Mexico has a compelling interest i[n]regulating its tourism industry and setting its own
safety standards.”), aff'd, 799 Fed. Appx. 89 (2d Cir. 2020).
The fourth factor, concerning the protection of justified expectations, is irrelevant here,
because none of the parties anticipated negligent acts or formed an expectation as to which law
would apply in the event of negligence. See Cosme, 417 Mass. at 650, quoting Restatement, §
145, cmt. b (“[P]ersons who cause injury on nonprivileged occasions, particularly when the
injury is unintentionally caused, usually act without giving thought to the law that may be
applied to determine the legal consequences of this conduct. Such persons have few, if any,
justified expectations in the area of choice|of law to protect, and as to them the protection of
justified expectations can play little or no part in the decision of a choice of law question”).
The fifth factor considers “the basic policies underlying the particular field of law.”
Restatement § 6(2)(e). “This factor is of particular importance in situations where the policies of
the interested states are largely the same but where there are nevertheless minor differences
between their relevant local law rules.” Restatement § 6, cmt. h. “[A] number of policies, such as
the deterrence of tortious conduct and the provision of compensation for the injured victim,
underlie the tort field.” Id., § 145, cmt. b. Massachusetts’ compensatory damages scheme is in
some ways more restrictive than that of New York or Oregon; in other ways it is more expansive.
Applying Oregon or New York law would frustrate the compensatory and deterrent goals of
Massachusetts tort law. Accordingly, the fifth factor favors application of Massachusetts law.’
7 States vary, considerably, on awarding personal injury damages. For example, laws related to punitive damages
vary by state, and there are limits to the amount of punitive damages that can be distributed. Some states have
12
The sixth factor, concerning predictability and uniformity of result, does not point in
I
5
either direction. This factor is of greatest i Ip ortance in cases where the parties are likely to give
advance thought to the legal consequences r f their transactions (such as parties to a contract) and
is of little significance where, as here, negligence is at issue. See Restatement § 6, cmt. i.
However, the remaining factors examine the parties’ justified expectations, and whether the
choice of law implicates considerations like certainty, predictability, and uniformity of result.
I
Restatement § 6(d), (f). These factors generally favor Massachusetts law, as the simpler, more
straightforward rule is to apply the law of the jurisdiction in which the injury occurred. Sec
Restatement § 146 cmt. c (describing the rule favoring application of the law of the place of
injury as furthering the values listed in § 6(d) and (f) “since the state whcre the injury occurred
will usually be readily ascertainable,” which aids “in the determination and application” of the
appropriate law.
2. Section 145 Factors
In conjunction with the analysis under § 6 of the Restatement, the court may also
consider contacts enumerated in § 145. Cosme v. Whitin Machine Works, Inc., 417 Mass. 643,
646 (1994). Restatement § 145 identifies the following contacts: (a) the place of injury, (b) the
place of conduct causing such injury, (c) the domicile, residence, nationality, place of
incorporation and place of business of the parties, and (d) the place where the relationship, if
any, between the parties is centered. The analysis of these considerations is qualitative, not
quantitative. Buskin, 393 Mass at 632.
Essentially, the contact factors under § 145 of the Restatement strongly favor
Massachusetts as factors (a), (b) and (d) all involve Massachusetts locations. Factor (c) is a wash
as the decedent’s domicile is Oregon and place of incorporation is New York, however, her
residence and the place of business is Massachusetts.
In this matter, virtually all of the relevant factors weigh heavily in favor of applying the
Massachusetts statute in this case. Massachusetts has a more significant relationship to the
parties and their activities. Massachusetts also has a strong interest in enforcing its statutory
policy of protecting charitable limitations jo damage claims. Both New York and Oregon, in
contrast, has relatively little interest in damages awarded in other states. Although the plaintiff
has raised certain considerations in determining which state’s law is applicable, they are
insufficient to create a more significant relationship to the occurrence and the parties than
Massachusetts’s interest as the place of injury. The purpose of the damage cap reflects a
legislative attempt to balance the plaintiffs strong interest with receiving full compensation with
other interests that are equally strong, if not stronger.
imposed caps on the amount that can be awarded, and some states do not allow punitive damages at all.
Massachusetts allows full punitive damages. On the contrary, Oregon has a somewhat unusual law that requires 70%
of the total punitive damages awarded to a plaintiff to be paid to the state of Oregon and has a limit on non-
economic damages for pain and suffering. Governments giveth and taketh away.
13
In sum, Tessa died in the state where she resided as a student. Having considered all relevant
factors and principles articulated in the Restatement and incorporated into the Massachusetts
‘
choice-of-law analysis, the Court conclud les that Massachusetts’ contacts and interests are more
significant than those of New York or Oregon in the context of this case. Massachusetts law will
apply to this case.
The Court does recognize that the limitation of $20,000 is a “paltry” sum, English v. New
England Med. Ctr., 405 Mass. 423, 426 (1989), and, as argued by the plaintiff, the
Commonwealth has an important interest in “providing wrongful death recovery to
compensation a decedent’s survivors[.]” The fact that Massachusetts is one of the few states
clinging to such a remedy notwithstanding} this is an issue best left to the SJC and Legislature.
B. Charitable Limitation
The Defendant, Bard College, moves for partial summary judgment on the ground that its
liability is limited by the doctrine of charitable immunity and G.L. c. 231, § 85K. Pursuant to
G.L.c. 231, § 85K,
if the tort was committed in the course of any activity carried on to accomplish directly
the charitable purposes of such corporation, trust, or association, liability in any such
cause of action shall not exceed thé sum of twenty thousand dollars.. . [Thhe liability of
i
charitable corporations.. . shall notibe subject to the limitations set forth in this section if
the tort was committed in the course of activities primarily commercial in character even
though carried on to obtain revenue to be used for charitable purposes.
The purpose of the doctrine of ¢! itable immunity arose from the theory that the funds
of a charity should not be depleted for reasons other than those envisioned by the charity, and
therefore, charities should be immune from paying damages stemming from tort liability.
English, 405 Mass. at 424-425. Thus, a ecmmon-law tule arose granting charities absolute
immunity from liability for torts committed in furtherance of its charitable purpose.
In Colby v. Carney Hosp., 356 ale 527, 528 (1969), the SJC observed that any
renunciation of the charitable immunity doctrine would be best accomplished by legislative
action. However, on the assumption that legislative action would be unlikely in the near future, it
announced the intention to abolish the doctrine “the next time we [were to be] squarely
confronted by a legal question respecting [i ” Id. In 1971, after the decision in Colby, the
Legislature enacted G.L. c. 231, § 85K. Section 85K abolishes the doctrine of charitable
immunity and limits the liability of charitable institutions to $20,000 if the tort was committed in
the course of an activity carried on to accomplish the purpose of the charitable organization.
The $20,000 cap has itself been challenged but nevertheless upheld by the courts as
constitutional. See English, 405 Mass. 426- 431 (statutory cap is constitutional, despite
“paltriness”). The “cap” for malpractice claims against nonprofit health-care organizations was
raised to $100,000 by legislative action. See G.L. c. 231, § 85K.
14
“To be shielded by § 85K, a defendant must show: (a) it is a charity, and (b) the injury it
may be held responsible for, under tort law/principles, occurred in the course of activities that
‘accomplish directly’ its charitable purposes.” Blauvelt v. AFSCME Council 93, Local 1703, 74
Mass. App. Ct. 794, 797 (2009); Goldberg v. Northeastern Univ., 60 Mass. App. Ct. 707, 711
(2004) (“The burden is on [the defendant] to prove that it is charitable and that the tort was
committed during an activity in direct erance of [the defendant’s] charitable purposes”).
Bard seeks partial summary judgment on this issue, arguing that this charitable cap
applies to limit its liability, if any, to $20,000. Specifically, it asserts that the “services related to
[Tessa’s] mental and phys
Preview
(182) COMMONWEALTH OF MASSACHUSETTS BERKSHIRE, ss. SUPERIOR COURT CIVIL ACTION NO. 19-0236 EUGENE V. ANDERSON as Personal Representative of the Estate for TESSA KATHLEEN MARY ANDERSON Plaintiff BARD COLLEGE, ANTHONY DOYLE as Personal Representative of the Estate of KAREN ELAINE BEAUMONT BIGGS, ROBERT GRAVES, JUDITH WIN and MADELINE ALLEN Defendants MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANTS ROBERT GRAVES AND MADELINE ALLEN/S MOTION FOR SUMMARY JUDGMENT and EUGENE V. ANDERSON’S CROSS-MOTION FOR SUMMARY JUDGMENT The plaintiff, Eugene V. Anderson, brings this wrongful death action on behalf of the Estate of Tessa Anderson against the defendants, Bard College at Simon’s Rock (“Bard” or “School”) and four individuals. This case arises out of the death by suicide of Tessa Anderson at the’ School. The defendants, Robert Graves and Madeline Allen, individually, now move for summary judgment pursuant to Mass. R. Civ. P. 56.! All the defendants also move to dismiss plaintiff's contract claim. In addition, Bard College moves for summary judgment regarding nforcement of the charitable limitation. On the contrary, the plaintiff seeks to have this case decided under either the laws of New York or Oregon, essentially to avoid the charitable limitation. ' The standard that this Court applies to the summary judgment motion is well established. “[A] party moving for summary judgment in a case in which the opposing party {has} the burden of proof at trial is entitled to summary judgment if he [or she] demonstrates . . that the party opposing the motion has no reasonable expectation of proving an essential element of that party’ 's case,” Brooks v, Peabody & Arnold, LLP, 71 Mass. App. Ct. 46, 50 (2008), quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The opposing party cannot simply rest on the pleadings or mere assertions that there are disputed facts. See, e.g., Changv. Winklevoss, 95 Mass. App. Ct. 202, 214 (2019) (court may not credit factual assertions “not supported by the summary judgment record”). Although this Court must draw all reasonable inferences in favor of the nonmovant, that does not require the Court to accept conclusory allegations, draw improbable inferences, or engage in unsupported speculation. A party cannot avoid or obtain summary judgment by making factual assertions unsupported by evidence. A. GRAVES AND ALILEN’S MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE CLAIMS I Relevant Facts The following facts are taken from the summary judgment record and the exhibits attached thereto, with all reasonable inferences in favor of the plaintiff. Ms. Anderson was enrolled as a student at Bard College in Great Barrington from approximately September 2013, at the age of 16, until her death by suicide on November 14, | 2016, at the age of 19. Her time at the college was unfortunately troubled, and there were several concerning incidents during her enrollment that came to the attention of various college employees, including Robert Graves, the Dean of Campus Life, and Madeline Allen, the Residence Director responsible for Ms. Anderson’s dorm during her final year at the School. On November 22, 2013, just mont after Ms. Anderson’s enrollment, Residence Director Mark Mirasol received an email 1m a student stating that Ms. Anderson had “insisted” that the student’s friend “make out with her” and had threatened to harm herself otherwise. The student also wrote that Ms. Anderson had previously disclosed that “she used to cut herself with some frequency but has not done so for a couple months.” Mirasol forwarded this email to defendant Robert Graves, the School’s Dean of Campus Life. He also informed Graves that, according to the reporting student, Ms. Anderson had been holding a razor during the November 2013 incident. Neither Mirasol nor the reporting student identified or characterized Ms. Anderson’s behavior during this incident as a suicide attempt. A few months later, on February 9, 2014, a campus security officer performed a wellness check on Ms. Anderson at the request of another student, who reported that Ms. Anderson was “not acting herself.” The security officer prepared a report, which detailed that Ms. Anderson was alert and oriented, but admitted to drinking vodka. Ms. Anderson also had five cuts on her left arm, near the wrist. The security officer asked Ms. Anderson about the cuts. She declined medical care, but admitted that she had a history of cutting herself. She also declined counseling services. The security officer sent a copy of the report to Graves, who followed up with Ms Anderson and referred her for mental health counseling. The report did not identify or characterize Ms. Anderson’s behavior during this incident as a suicide attempt. Ms. Anderson received mental health counseling the School in February 2014. She had also previously received counseling in September 2013. At both times, to different counselors, Ms. Anderson disclosed that she had a history of self-harm and suicidal ideation, and that she had previously engaged in self-harm in the form of cutting. In February 2014, Ms. Anderson also disclosed that her cutting had increased in frequency: where before she would only cut herself once or twice a year, at Bard she had cut herself at least six times during the previous semester. Ms. Anderson further disclosed that she had previously attempted to commit suicide when she was in fifth grade, when she had attempted to hang herself. Finally, Ms. Anderson admitted that she continued to experience suicidal thoughts, though she denied any intention to act on them. These counseling sessions were kept confidential, and none of the information was reported to Graves. After February 2014, no further incidents of concern involving Ms. Anderson were reported to Graves during the 2013-14 or 2014-15 academic years.” In May 2015, Ms. Anderson completed her initial program at Bard and received her associate’s degree. She elected to stay on for an additional two years to pursue her bachelor’s degree. During the 2015-16 academic year, no incidents of concern involving Ms. Anderson were reported to Graves, although Ms. Anderson sought and received permission to graduate early, at the end of the Fall 2016 (rather than Spring 2017) semester. During the Fall 2016 semester, Ms! Anderson resided in the Pibly House residence hall, where Madeline Allen was Residence Director. Allen had no information regarding either the November 13 or February 2014 incidents that had been reported to Graves. She also had no information regarding any other previous incidents of concern involving Ms. Anderson. On Friday, September 16, 2016, a friend of Ms. Anderson’s from another school called Judith Win, a mental health counselor at ¢ School, to express concerns about Ms. Anderson. Win wrote a summary of the phone call, which detailed that Ms. Anderson told her friend she “had a lot going on” and “didn’t want to think about things anymore,” and that Ms. Anderson was planning to cut off communication for a while. The summary further detailed that the friend reported that Ms. Anderson was drinking heavily; that Ms. Anderson’s boyfriend was not present to support her; that Ms. Anderson and her boyfriend might have been having relationship problems; that Ms. Anderson always had ‘(depressive tendencies” and could be prone to overreacting; that Ms. Anderson was stressed about her senior thesis, which was due at the end of the semester; and that the friend did not believe Ms. Anderson was suicidal. That same day, Win emailed Allen, stating that she had “received a call from a student at another school who is worried about a friend here” and who “hoped that someone who knows her would be aware that she was struggling and keep an eye on her discreetly.” Win indicated that she would attach a summary of the conversation, but did not do so, and did not identify Ms. Anderson in the body of the email. Allen replied to Win that evening requesting additional information, but explained that she was on a weekend off and would not be reliably accessible until the following Monday. Win sent the summary to Allen as an email attachment and stated, “I think it can wait until Monday.” On Monday, September 19, Allen shared Win’s information about Ms. Anderson with another Residence Director, Mickey Spaulding. She also sent a follow-up email to Win, stating “T shared this information with [Spaulding], who knows [Ms. Anderson] a little better than I do We will both keep a discrete [sic] eye on her and see how she seems to be doing.” Thereafter, Allen observed Ms. Anderson to appear positive and upbeat both in her direct interactions with ? The plaintiff points to evidence in the summary judgment record that in March 2014, Ms. Anderson reported that she had been raped on campus by another student. Although there is evidence that the incident was known to various employees at Simon’s Rack, there is nothing to suggest that either Graves or Allen, specifically, knew about this incident. ' Allen and in her interactions with other Pibly House residence, Allen continued to observe Ms. Anderson during the remainder of the semester and did not see anything that caused her concern for Ms. Anderson’s well-being. No one other than Win reported any concerns about Ms. Anderson to Allen. Win’s information about Ms. Anderson was not reported to Graves. No other incidents of concern involving Ms. Anderson were reported to Allen or to Graves prior to Ms. Anderson’s death on November 14, 2016.3 IL Analysis The plaintiff brings claims for negligence (Count 4), conscious pain and suffering (Count 5), and punitive damages (Count 6) against Graves. The plaintiff also brings the same claims (Counts 10, 11, and 12, respectively) against Allen. The defendants now move for s ummary judgment on Counts 4 and 10 on the ground neither Allen nor Graves had actual knowledge of a previous suicide attempt by Ms. Anderson, and. therefore neither can be held liable under Nguyen v. Massachusetts Inst. of Tech., 479 Mass. 436 (2018). The plaintiff has filed a cross- mo tion for summary judgment on the same claims.‘ Dzung Duy Nguyen, sets out the relevant standards against which the present motions must be measured. Nguyen involved a suicide of a student at a university, and established the circumstances under which a university has a duty of care to prevent a student from committing suicide and the steps that should be taken When that duty is implicated. In Nguyen, the Supreme Judicial Court held that nonclinicians in a iversity or college setting have a “limited” duty to prevent student suicide. Nguyen, 479 Mass. at 457. This duty “is created only by actual knowledge of a student’s suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student’s stated plans or intentions to commit suicide.” Jd. Here, the undisputed facts demonstrate that Ms. Anderson did not state a plan or intention to commit suicide. Indeed, during her counseling in February 2014, Ms. Anderson denied any such intention. The question, therefore, is whether Allen or Graves had actual knowledge of any facts that constituted a suicide attempt by Ms. derson during her time at Bard. 3 The plaintiff points to evidence in the summary judgment record that in October 2016, Ms. Anderson (1) attempted to commit suicide by hanging in her dorm room; (2) overdosed on benzodiazepines, alcohol, and other drugs in the dorm bathroom; (3) was involved in a car crash in which she drove into a tree; and (4) fainted during a rehearsal for her senior thesis play, following which she was taken to Fairview Hospital where bloodwork records (provided to Bard before Ms. Anderson’s death) showed positive results for benzodiazepines and cannabinoids. The plaintiff also describes, in extensive detail, Ms. Anderson’s interactions with Professor Karen Beaumont Briggs, whose apartment she stayed at on the night of November 11, 2016, Just days before her death on November 14. However, there is no evidence — and the plaintiff does not argue — that either Graves or Allen knew about any of these incidents. * The claims for conscious pain and suffering and punitive damages are derivative of the negligence claims, and therefore neither the parties nor the court discuss them separately; the sole issue before the court is the viability of the negligence claims against Graves and Allen (Counts 4 and 10, respectively). 5 It is questionable whether Ms. Anderson’s suicide in fifth grade would qualify as a “suicide attempt . . . recently before matriculation” (emphasis added), Nguyen, 479 Mass. at 457, even considering Ms. Anderson’s early enrollment at the age of 16. Regardless, however, here is no evidence that Allen or Graves knew of this attempt. 4 1. Madeline Allen Although there is evidence that Ms! Anderson attempted suicide while at Bard in October 2016, there is no evidence that Allen knew, about this incident. The only. relevant information Allen had was Win’s September 2016 summary of a conversation with a student at another school who expressed concern about Ms. Anderson’s well-being. While undoubtedly concerning, this information does include any detail, or even speculation, about a suicide attempt by Ms. Anderson, whether past or contemplated. Therefore, the undisputed facts demonstrate that Allen did not have actual knowledge of any suicide attempt by Ms. Anderson during her time at the School. She therefore did not have the limited duty to prevent suicide imposed on nonclinicians by Nguyen, and is entitled to summary judgment on Count 10 as it relates to this theory of liability. 2. Robert Graves The analysis is less straightforward regarding Graves. As with Allen, there is no evidence that Graves knew of Ms. Anderson’s suicide attempt in October 2016. However, Graves did know of the November 2013 incident, during which Ms. Anderson threatened to harm herself while holding a razor, and the February 2014 incident, during which Ms, Anderson admitted to cutting herself recently. Graves argues persuasively that he could not be expected to construe either of these incidents as suicide attempts under Nguyen because they were not, in fact, suicide attempts. Graves further argues that, as a nonclinician, he could not reasonably be expected to identify either incident as a suicide attempt when neither Mirasol’s email nor the campus security officer’s report characterized them as such, The plaintiff has, however, sct forth at least some evidence suggesting that the November 2013 incident and/or the February 2014 incident should reasonably have been viewed as suicide attempts. Specifically, the plaintiff has disclosed the expert testimony of Dr. Thomas Joiner, an academic psychologist, who is anticipatedito testify that Ms. Anderson’s threats of, and actual, self-harm are “properly viewed” as suicide attempts in light of her age (16 at the time of both incidents) and other factors. Based on this|anticipated expert testimony, the plaintiff argues that, even as a nonclinician, Graves should have been able to recognize one or both incidents as suicide attempts even if those reporting the facts to him did not. It is undisputed that Graves had “actual knowledge” of both incidents. Whether he had “actual knowledge ofa. . . suicide attempt” (emphasis added) sufficient to impose liability under Nguyen, therefore, turns not on the question of what facts Graves knew, but whether the facts of either incident amount to a suicide attempt by Ms. Anderson. While the plaintiff's evidence on this point is far from compelling, it is at least some evidence. “A tochold . . . is enough to survive a motion for summary judgment.” Marr Equipment Corp. v. LT.O. Corp. of New England, 14 Mass. App. Ct. 231, 235 (1982). The court cannot discount the possibility that a reasonable person would construe the November 2013 or the February 2014 incident as constituting suicide attempts by Ms. Anderson, 5 and that Graves should have recognized them as such and initiated Bard’s suicide prevention protocol. See Nguyen, 479 Mass. at 456 (“Reasonable measures by the university to satisfy a triggered duty will include initiating its suicide prevention protocol if the university has developed such a protocol”). Although thejevidence may not be particularly strong, it is not for this court to grant summary judgment merely because the facts which one of the moving parties offers appear more plausible than those wilich the opposing party offers or because it appears that the opposing party is not likely to prevail at trial. Attorney General v. Bailey, 386 Mass. 367 (1982). Summary judgment may enter only when no genuine issue of material fact exists; and on this record, I find that such facts exit. Therefore, summary judgment must be denied as to so much of Count 4 as asserts a. negligence claim against Graves based on Nguyen. Ii. Voluntary Assumption of the/Risk Irrespective of the “special relationship” theory identified in Nguyen, the plaintiff is also proceeding on the alternative theory that Bard had a duty stemming from its voluntary assumption of a duty of care. Massachusetts recognizes that “a duty voluntarily assumed must be performed with due care,” and the SJC hag approved the principles pertaining to voluntary assumption of a duty as set forth in the Restatement (Second) of Torts § 323 (1965). See, Mullins v. Pine Manor College, 389 Mass. 47, 52 (1983). “If a person voluntarily assumes a duty or undertakes to render services to another that should have been seen as necessary for her protection, that person may be liable for harm caused because of the negligent performance of his undertaking.” Thorson v. Mandell, 402 Mass. 744, 748 (1988)(policy prohibiting certain uses of auditorium “was not an undertaking to ender services for the protection of its users.”).° Section 323 of the Restatement (S. cond) of Torts states the requirements for an assumed duty of care: 5 As stated in, Doe v. Irs. of Boston Coll.,|892 F.3d 67, 94-95 (1st Cir. 2018): When Massachusetts courts have recognized certain legal duties imposed on universities through their “voluntary assumption” of care, they have done so narrowly. See Nguyen v. Mass. Inst. of Tech., 479 Mass. 436, 96 N.E.3d 128, 140-41 (2018) (discussing the moder university-student relationship in Massachusetts tort law); Mullins, 449 N.E.2d at 336 (finding that a college undertook a duty to protect students against foreseeable criminal acts of third parties because the school charged students a dormitory fee for this | service) (emphasis added).; Bash v, Clark Univ., No. 06745A, 2006 WL 4114297, at *4-5 (Mass. Super. Ct. Nov. 20, 2006) (i inding no duty to protect a student from voluntary consumption of illegal drugs because of Mullins's foreseeability, requirement); Doe v. Westlake Acad., No. 97-cv-2187, 2000 WL 1724887, at *7 (Mass. Super. Ct. Nov. 21, 2000) (explaining the foreseeability limitation of a University's duty of care under the student-university special relationship); Erickson v, Tsutsumi, No. CA199801842B, 2000 WL 1299515, at *2 (Mass. Super. ct. May 17, 2000) (recognizing that Mullins limited its holding to situation in which a duty of care is traditionally imposed). One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if: (a) his failure to exercise such carejincreases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking. The plaintiff asserts that the defendants voluntarily assumed the duty of reasonable care in protecting Tessa from any self-inflicted harm. Specifically, he identifies certain responsibilities including, enforcement of yelevant policies and procedures, education of staff, maintain appropriate communication regarding student’s health issues, and notification to 1 parents. In essence, the theory is that once il the school discovered the threat of self-harm, they ec were bound under section 323 to take all n essary steps to prevent such conduct. The mere fact that Bard voluntaril a greed to provide a myriad of support services to Tessa is not sufficient to impose a duty. It tn ust also be shown that either (a) the failure to exercise due care increased the risk of harm, or (b) the harm is suffered because of the students’ reliance on the undertaking. The increase in the risk of harm required is not simply that which occurs when a person fails to do something that he or she reasonably should have. Section 323(a) applies only when the defendant’s actions increased the risk of harm to plaintiff relative to the tisk that would have existed had the defendant never provided the services initially. Put another way, the defendant’s negligent performance must somehow put the plaintiff in a worse situation than if the defendant had never begun performance. Likewise with respect to the “reli ce” prong of section 323(b), the plaintiff must establish “actual or affirmative reliance, reliance ‘based on specific actions or representations which cause a person to ‘0; go other alternatives of protecting themselves. The duty the plaintiff seeks to impose upon the School cannot be squared with section 323(a) or (b). The record, read in the light'most favorable to the plaintiff, reveals that Tessa may have been at risk of harming herself. No affirmative action by the defendant’s employees, however, increased that risk of self-harm. [To the contrary, it is undisputed that the employees appropriately intervened offering support and encouragement, referred Tessa to counseling at the School, and interacted with and monitored her behavior. In short, no action by School personnel prevented Tessa from taking advantage ofithe support and encouragement being offered, nor did they do anything to prevent her from seeking help on her own accord. The record is similarly devoid of any proof that Tessa relied, to her detriment, on the services offered by these same personnel. The case of Jain v. State, 617 N.W.2d 293, 299 (Iowa 2000), a decision of the lowa Supreme Court interpreting § 323, is ins ctive. In Jain, prior to a student’s suicide, university employees were aware that the student had previously tried to commit suicide by inhaling exhaust fumes, a university counselor had attempted to help the student through counseling, and the university had a policy of informing parents when a student engaged in self-destructive behavior. The plaintiff asserted that the university’s failure to inform the student’s parents of his prior suicide attempt and other suicidal behaviors, contrary to the university’s policy, implicated duties under section 323 of the Restatement. , The Iowa Supreme Court, reviewing the trial court’s grant of summary judgment in favor of the university, concluded that the record when viewed in the light most favorable to the ff plaintiff, established that the university o red to help the student cope with his suicidal ideations, but that the student rebuffed these efforts. Id. at 299. The record also failed to establish that the student “relied, to his detriment, on the services gratuitously offered by these same personnel.” Id. at 299-300. In light of these facts, the court concluded that “no legal duty on the part of the university arose under Restatement section 323 as a matter of law.” Id. at 300. By contrast, in Leary v. Wesleyan Wniversity, 47 Conn. L. Rptr. 340, WL 865679 (2009), the Connecticut Superior Court, applying section 323 of the Restatement, found that the university police officers, by undertaking to transport the student to a hospital after he complained of a panic attack, dropping him off without further investigating or securing medical attention for him, breached a duty owed to|the student, who committed suicide shortly after being dropped off at the hospital. Id. at 2009 WL 865679, at *6~8. The court found that the decedent was in the custody or control of the defendant’s public safety officers and the officers could have prohibited him from leaving the hospital before he received medical attention. There was an issue of fact as to whether the decedent was free to leave and whether he had the capacity to assume control over himself. Summary judgment was denied. The record reveals that the School’s intervention in this case neither increased the risk that Tessa would commit suicide nor led her to abandon other avenues of relief from her distress. Therefore, no legal duty on the part of the School arose under Restatement section 323 as a matter of law. For the above reasons, the defendants’ motion for summary judgment is allowed, and the plaintiff's motion‘is denied, as to Counts 10, 11 and 12 against Allen. The defendants’ motion and the plaintiff's motion are both denied as to Counts 4, 5, and 6 against Graves. B. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE CONTRACT CLAIM Bard also seek to dismiss the contract claim as there was no contract between the parties that was breached. The defendants contend that the complaint fails to allege that any particular 4 Bard College document, policy manual, or handbook includes any definite and certain promises about the school's environment or service: or of an obligation to notify a student's parent of significant safety concerns regarding the student. Secondly, the essential claim in this case is for negligence in the failure to provide support to Tessa during this critical period. Putting the label of “breach of contract” on the claim does not change its essential nature as a tort claim. 1' The plaintiff, in its response, did net challenge the defendants’ argument that a contract claim would not be applicable to this situation. In any event, such a claim would not be appropriate. First, to assert a breach of contract claim, the plaintiff must allege (1) a valid contract with Bard; (2) Bard breached the contract; and (3) the Estate suffered damages as a result of the breach. Singarella v. Boston, 342 Mass. 385, 387 (1961) (listing elements of breach of contract claim). The plaintiff has not identified any contract language, expressed or implied, for any claim against Bard. In addition, “a plaintiff may not designate what is essentially a personal injury claim as a contract claim...” Ayala v. Boston Hous. Auth., 404 Mass. 689, 704 (1989). “[W]here ... the ‘essential nature of the plaintiff's claim is recovery for personal injuries founded on ... negligence,' [her] action, whether it be denominated tort or contract, is governed by c. 258.” Schenker v. Binns, 18 Mass. App. Ct. 404,|406 (1984), quoting Thomas v. Massachusetts Bay Transp. Auth., 389 Mass. 408, 410 (1983)( (holding that where the essential nature of the plaintiff's claim is recovery for personal injuries .» founded on negligence, the action, whether it be denominated tort or contract, is governed by tort principles). It is possible that 2 party who has a'relationship with another party may be entitled to assert claims for breach of contract as well as tort claims. However, there are often instances in the law when parties try to treat a contract claim as though it were a tort claim, or to treat a tort claim as though it were a contract claim, in order to obtain a perceived advantage in terms of the damages that may be awarded, the limitations period that may apply, or for other reasons. Massachusetts courts use the “gist of the attion” doctrine to resolve disputes as to whether a particular claim sounds in tort or in contract. The gist of the plaintiff's claims is that Bard and its employees failed to exercise reasonable care, i.¢., they were negligent. See Anthony’s Pier Four, Inc., 396 Mass. at 823 (court ! looks to gist of action to determine whether plaintiff is attempting to avoid tort principles merely by labelling the claim as contractual); see also Harris v. McIntyre, 2000 WL 942559 at *7 (Mass.Super.2000) (Gants, J.) (breach of implied warranty claim based on “failure ‘to construct the buildings in a good and workmanlike tmanner[’] ... is different phraseology for claiming that [defendant] was negligent in its construction”). The plaintiff does not assert a claim “to recover from another money which in equity and good conscience he is not entitled to keep)” The latter type of claim, according to the Supreme Judicial Court, is usually advanced in a contract action. Kagan v. Lévenson, 334 Mass. 100, 103 (1956). Here, the plaintiff's claim—failing to protect a student from self-destructive behavior— can be fairly characterized as negligence claim. It involves the type of “[conduct] resulting in injuries to person or property.” Royal—Globe Ins. Co. v. Craven, 411 Mass. 629 (1992). Accordingly, the defendant’s mntion to dismiss the contract claim (Count 17) is allowed. 9 C. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The plaintiff has also moved for summary judgment regarding the state law that should be applied to this civil precluding the imposition of the charitable cap on any recovery against Bard College. I, | Conflict of Laws Initially, the plaintiff moves this court to order that either New York or Oregon law applies to the wrongful death claims against the defendants. The defendants oppose this motion, arguing that Massachusetts law applies. For the following reasons, the plaintiff's motion is denied, and the law of Massachusetts applies to this case. The parties agree that there is a conflict between the pertinent law of damages in Massachusetts and both New York and Oregon and they disagree about which law governs. I I M must apply “the conflict-of-laws rules of assachusetts, the forum State, in order to determine which State’s law is applicable.” Clarendon Nat'l Ins. Co. v. Arbella Mut. Ins. Co., 60 Mass. App. Ct. 492, 495 (2004). “Massachusetts follows ‘a functional choice-of-law approach that responds to the interests of the parties, the States involved, and the interstate system as a whole.’ ” UBS Financial Servs., Inc. y. Aliberti, 483 Mass. 396, 405 n.12 (2019), quoting Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 631 (1985). This approach is guided by the Restatement (Second) of Conflict of Laws/(1971)(“Restatement”). UBS Financial, 483 Mass. at 405 n.12, quoting Clarendon Nat’l, 60 Mass. App. Ct. at 496. The plaintiff's argument for the application of New York or Oregon law is related to the charitable damage limitation. The parties agree that Massachusetts limits recovery in tort claims against a recognized charity to $20,000; New York and Oregon have no such limitation on damages. See G.L. c. 231, §85K. Given this conflict, the plaintiff asserts that either New York or Oregon laws would be more appropriate as “Tessa and her parent were at all times domiciled in and permanent residents of Orego: and “Bard College is a New York Corporation.” The defendants contend that Massachusetts limitation of damages against Bard is an established and thoughtful compromise in balancing the desirability of protection for charitable corporation against the interest of the person who is injure. The plaintiff asserts that Oregon has an interest in protecting its citizens, and in compensating them for injuries, even those that may have occurred outside state boundaries. However, “a generalized interest in protecting its citizens ... alone is insufficient to override ... superior interest on all other fronts.” Romani v. Cramer, Inc., 992 F.Supp. 74, 79 (1998). In contrast, Massachusetts, where the death occurred, has an interest in addressing injuries occurring within state boundaries and regulating and supporting nonprofit business. This is particularly true with respect to students and educational institutes. It is difficult to conclude that Oregon’s interests outweigh those of the Commonwealth. As noted, the place of the death was in Great Barrington, Massachusetts, where is. Anderson resided at the school, her treating therapist worked, she received counseling|and was observed and monitored by several individuals. 10 For New York or Oregon law to apply, the plaintiff must demonstrate that these states have a more significant relationship to the occurrence and the parties. The Supreme Judicial i Court looks to the Restatement as an “obvi ou is source of guidance” to the courts when determining which law to apply. Bushkin A socs., Inc. v. Raytheon Co., 393 Mass. 622, 632 (1985). The court will be guided by §§ 6 & 145 of the Restatement. The considerations outlined in § 6 of the Restatement are: (a) the needs of interstate and international systems, (b) policies of the forum, (c) policies of interested states and interest in the particular issue, (d) protection of justified expectations, (e) basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in I determining and applying law. The analysis of the factors outlined in the Restatement is functional, determined by these choice-influencing considerations. Buskin Associates, Inc., 393 Mass. at 631. There is no dispute that the death occurred in Berkshire County, Massachusetts. The law gives the place of injury/death significant Weight by creating a presumption that its law should apply. Cosme, 417 Mass. 646-647; Cohen|y. McDonnell Douglas Corp., 389 Mass. 327, 333- 334 (1990). The place where “the last event necessary to make an actor liable for an alleged tort takes place.” Id. at 334. 1. Section 6 Factors The first factor considers “the needs of the interstate and international systems.” Restatement § 6(2)(a). “Choice-of-law rules, among other things, should seek to further harmonious relations between states and to facilitate commercial intercourse between them ... [A] state should have regard for the needs and policies of other states and of the community of states.” Id., § 6, cmt. d. In this case, nothing suggests that the law applied to this matter would affect harmonious relations or commerciallinteractions between Massachusetts and New York or Oregon. For that reason, the first factor under § 6 “do[es] not point ... in any particular direction.” Cosme, 417 Mass. at 649. The second and third factors are “ e relevant policies of the forum” as compared to the relevant policies and interests of the other two states. Restatement §§ 6(2)(b), (c). Massachusetts” statutory scheme limiting the damages of tort victims is designed to protect charitable corporations from the financial burden of large damage awards; to protect defendants from large verdicts not to limit the compensation of plaintiffs. There is no dispute that Massachusetts law would significantly restrict the damages plaintiff could recover. New York and Oregon law, i contrast, does not place limits on recoverable damages in cases involving a recognized charity, and would permit plaintiffs to recover the 1 amount of its damages, “for the loss of the reasonably expected net income, services,|protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice ofjthe decedent to the persons entitled to the damages recovered,” damages for conscious pain and suffering, and potential punitive damages. G.L.c. 229, §§ 2, 6. Although these policies differ in determining damages, the Oregon and New York approach does not create a more significant relationship to the occurrence and parties by expanding how damages may be assessed! 1 11 Moreover, Massachusetts has a much greater interest in this issue than either New York or Oregon in enforcing its statutory policy of protecting nonprofits from significant damage awards; a public policy that that repeatedly|been expressed by the legislature and SJC. Section 85K embodies a Massachusetts policy that ‘the funds of charitable institutions” should be “devoted to charitable purposes,” so that charities are protected from “[being] impaired or wholly destroyed” by extensive liability claims. English y. New England Med. Ctr. 405 Mass. 423, 429 (1989). The interest Massachusetts has expressed in protecting its charitable institutions from insolvency is long standing. In Simpson v. Truesdale Hosp., Inc., 338 Mass. 787, 787-788 (1958), the SJC noted that “[w]bile as an otiginal proposition the doctrine [charitable limitation] might not commend itself to us today, it has been firmly embedded in our law for over three quarters of a century and we think that its “termination should be at legislative, rather than at judicial, hands' (citations omitted).” Id. That the undisputed evidence establishes all of Bard’s alleged liability occurred in Massachusetts/and were charitable rather than commercial in nature heightens the charitable interests advanced|by the charitable cap. Applying Oregon or New York law on this point precludes the Massachusetts loss- cn | allocation policy of imposing a cap on ages for charitable institutions in tort cases, at least, as applied within the borders of Massachusetts or as to Massachusetts residents. Equally important, having a tort compensation system that would favor nonresidents over residents would be inconsistent with fundamental fairness. Factors 2 and 3 align with the Commonwealth. See Alpert v. Starwood Hotels, 2018 WL 5456493 at * 6 (D. Conn. Oct. 29, 2018) (Mexican law applies to claims for injuries Massachusetts plaintiff incurred during stay at Mexican resort because “Mexico has a compelling interest i[n]regulating its tourism industry and setting its own safety standards.”), aff'd, 799 Fed. Appx. 89 (2d Cir. 2020). The fourth factor, concerning the protection of justified expectations, is irrelevant here, because none of the parties anticipated negligent acts or formed an expectation as to which law would apply in the event of negligence. See Cosme, 417 Mass. at 650, quoting Restatement, § 145, cmt. b (“[P]ersons who cause injury on nonprivileged occasions, particularly when the injury is unintentionally caused, usually act without giving thought to the law that may be applied to determine the legal consequences of this conduct. Such persons have few, if any, justified expectations in the area of choice|of law to protect, and as to them the protection of justified expectations can play little or no part in the decision of a choice of law question”). The fifth factor considers “the basic policies underlying the particular field of law.” Restatement § 6(2)(e). “This factor is of particular importance in situations where the policies of the interested states are largely the same but where there are nevertheless minor differences between their relevant local law rules.” Restatement § 6, cmt. h. “[A] number of policies, such as the deterrence of tortious conduct and the provision of compensation for the injured victim, underlie the tort field.” Id., § 145, cmt. b. Massachusetts’ compensatory damages scheme is in some ways more restrictive than that of New York or Oregon; in other ways it is more expansive. Applying Oregon or New York law would frustrate the compensatory and deterrent goals of Massachusetts tort law. Accordingly, the fifth factor favors application of Massachusetts law.’ 7 States vary, considerably, on awarding personal injury damages. For example, laws related to punitive damages vary by state, and there are limits to the amount of punitive damages that can be distributed. Some states have 12 The sixth factor, concerning predictability and uniformity of result, does not point in I 5 either direction. This factor is of greatest i Ip ortance in cases where the parties are likely to give advance thought to the legal consequences r f their transactions (such as parties to a contract) and is of little significance where, as here, negligence is at issue. See Restatement § 6, cmt. i. However, the remaining factors examine the parties’ justified expectations, and whether the choice of law implicates considerations like certainty, predictability, and uniformity of result. I Restatement § 6(d), (f). These factors generally favor Massachusetts law, as the simpler, more straightforward rule is to apply the law of the jurisdiction in which the injury occurred. Sec Restatement § 146 cmt. c (describing the rule favoring application of the law of the place of injury as furthering the values listed in § 6(d) and (f) “since the state whcre the injury occurred will usually be readily ascertainable,” which aids “in the determination and application” of the appropriate law. 2. Section 145 Factors In conjunction with the analysis under § 6 of the Restatement, the court may also consider contacts enumerated in § 145. Cosme v. Whitin Machine Works, Inc., 417 Mass. 643, 646 (1994). Restatement § 145 identifies the following contacts: (a) the place of injury, (b) the place of conduct causing such injury, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. The analysis of these considerations is qualitative, not quantitative. Buskin, 393 Mass at 632. Essentially, the contact factors under § 145 of the Restatement strongly favor Massachusetts as factors (a), (b) and (d) all involve Massachusetts locations. Factor (c) is a wash as the decedent’s domicile is Oregon and place of incorporation is New York, however, her residence and the place of business is Massachusetts. In this matter, virtually all of the relevant factors weigh heavily in favor of applying the Massachusetts statute in this case. Massachusetts has a more significant relationship to the parties and their activities. Massachusetts also has a strong interest in enforcing its statutory policy of protecting charitable limitations jo damage claims. Both New York and Oregon, in contrast, has relatively little interest in damages awarded in other states. Although the plaintiff has raised certain considerations in determining which state’s law is applicable, they are insufficient to create a more significant relationship to the occurrence and the parties than Massachusetts’s interest as the place of injury. The purpose of the damage cap reflects a legislative attempt to balance the plaintiffs strong interest with receiving full compensation with other interests that are equally strong, if not stronger. imposed caps on the amount that can be awarded, and some states do not allow punitive damages at all. Massachusetts allows full punitive damages. On the contrary, Oregon has a somewhat unusual law that requires 70% of the total punitive damages awarded to a plaintiff to be paid to the state of Oregon and has a limit on non- economic damages for pain and suffering. Governments giveth and taketh away. 13 In sum, Tessa died in the state where she resided as a student. Having considered all relevant factors and principles articulated in the Restatement and incorporated into the Massachusetts ‘ choice-of-law analysis, the Court conclud les that Massachusetts’ contacts and interests are more significant than those of New York or Oregon in the context of this case. Massachusetts law will apply to this case. The Court does recognize that the limitation of $20,000 is a “paltry” sum, English v. New England Med. Ctr., 405 Mass. 423, 426 (1989), and, as argued by the plaintiff, the Commonwealth has an important interest in “providing wrongful death recovery to compensation a decedent’s survivors[.]” The fact that Massachusetts is one of the few states clinging to such a remedy notwithstanding} this is an issue best left to the SJC and Legislature. B. Charitable Limitation The Defendant, Bard College, moves for partial summary judgment on the ground that its liability is limited by the doctrine of charitable immunity and G.L. c. 231, § 85K. Pursuant to G.L.c. 231, § 85K, if the tort was committed in the course of any activity carried on to accomplish directly the charitable purposes of such corporation, trust, or association, liability in any such cause of action shall not exceed thé sum of twenty thousand dollars.. . [Thhe liability of i charitable corporations.. . shall notibe subject to the limitations set forth in this section if the tort was committed in the course of activities primarily commercial in character even though carried on to obtain revenue to be used for charitable purposes. The purpose of the doctrine of ¢! itable immunity arose from the theory that the funds of a charity should not be depleted for reasons other than those envisioned by the charity, and therefore, charities should be immune from paying damages stemming from tort liability. English, 405 Mass. at 424-425. Thus, a ecmmon-law tule arose granting charities absolute immunity from liability for torts committed in furtherance of its charitable purpose. In Colby v. Carney Hosp., 356 ale 527, 528 (1969), the SJC observed that any renunciation of the charitable immunity doctrine would be best accomplished by legislative action. However, on the assumption that legislative action would be unlikely in the near future, it announced the intention to abolish the doctrine “the next time we [were to be] squarely confronted by a legal question respecting [i ” Id. In 1971, after the decision in Colby, the Legislature enacted G.L. c. 231, § 85K. Section 85K abolishes the doctrine of charitable immunity and limits the liability of charitable institutions to $20,000 if the tort was committed in the course of an activity carried on to accomplish the purpose of the charitable organization. The $20,000 cap has itself been challenged but nevertheless upheld by the courts as constitutional. See English, 405 Mass. 426- 431 (statutory cap is constitutional, despite “paltriness”). The “cap” for malpractice claims against nonprofit health-care organizations was raised to $100,000 by legislative action. See G.L. c. 231, § 85K. 14 “To be shielded by § 85K, a defendant must show: (a) it is a charity, and (b) the injury it may be held responsible for, under tort law/principles, occurred in the course of activities that ‘accomplish directly’ its charitable purposes.” Blauvelt v. AFSCME Council 93, Local 1703, 74 Mass. App. Ct. 794, 797 (2009); Goldberg v. Northeastern Univ., 60 Mass. App. Ct. 707, 711 (2004) (“The burden is on [the defendant] to prove that it is charitable and that the tort was committed during an activity in direct erance of [the defendant’s] charitable purposes”). Bard seeks partial summary judgment on this issue, arguing that this charitable cap applies to limit its liability, if any, to $20,000. Specifically, it asserts that the “services related to [Tessa’s] mental and phys