Andrade, et al. v. City of Somerville (Lawyers Weekly No. 11-139-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1407 Appeals Court CARLOS ANDRADE & others[1] vs. CITY OF SOMERVILLE. No. 16-P-1407. Middlesex. September 13, 2017. – October 30, 2017. Present: Massing, Kinder, & Ditkoff, JJ. Massachusetts Tort Claims Act. Firearms. License. Governmental Immunity. Municipal Corporations, Governmental immunity. Negligence, Governmental immunity. Police, Negligence. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on November 9, 2015. A motion to dismiss was heard by Maureen B. Hogan, J. David P. Shapiro, Assistant City Solicitor, for the defendant. Keith J. Nicholson for the plaintiffs. MASSING, J. This appeal concerns the scope of § 10(e) of the Massachusetts Tort Claims Act, G. L. c. 258, which exempts public employers from liability in tort with respect to “any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization.” G. L. c. 258, § 10(e), inserted by St. 1993, c. 495, § 57. Plaintiff Carlos Andrade was grievously and permanently injured when Santano Dessin shot him in the neck, shattering Andrade’s spine and leaving him paralyzed from the neck down. The plaintiffs allege that the gun Dessin used to shoot Andrade had been wrongly returned to Dessin by defendant city of Somerville (city) and the Somerville police department (department) after the department had previously confiscated it in the course of revoking Dessin’s license to carry firearms. We conclude that the city’s conduct was “based upon” licensing activity described in § 10(e) and that the city is accordingly exempt from suit. Background. Because this appeal comes to us on interlocutory review of the denial of the city’s motion to dismiss,[2] we accept the facts as alleged in the plaintiffs’ complaint. See Kent v. Commonwealth, 437 Mass. 312, 317 (2002); Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012). In January, 2010, the department notified Dessin that his license to carry had been revoked because of a disqualifying adjudication of delinquency that appeared on his juvenile record. The department took possession of three firearms belonging to Dessin.[3] Dessin appealed the department’s decision, and a Superior Court judge determined that Dessin was permitted to possess firearms. Following the judge’s ruling, although the department was awaiting a decision of the Massachusetts […]