Cormier, et al. v. City of Lynn, et al. (Lawyers Weekly No. 10-033-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-12323 ALYSSA CORMIER & another[1] vs. CITY OF LYNN & others.[2] Essex. November 9, 2017. – February 27, 2018. Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ. Massachusetts Tort Claims Act. Governmental Immunity. Municipal Corporations, Liability for tort, Governmental immunity. School and School Committee, Liability for tort. Negligence, Governmental immunity. Civil action commenced in the Superior Court Department on March 2, 2011. A motion to dismiss was heard by Robert N. Tochka, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Douglas K. Sheff (Sara W. Khan, Frank J. Federico, Jr., & Donald R. Grady, Jr., also present) for the plaintiffs. James P. Lamanna, Assistant City Solicitor (George S. Markopoulos, Assistant City Solicitor, also present) for city of Lynn. Gary Buseck, Patience Crozier, & Joseph N. Schneiderman, for GLBTQ Legal Advocates & Defenders, amicus curiae, submitted a brief. BUDD, J. Bullying is a persistent, pernicious problem in our schools — it can cause emotional and, at times, physical harm. In this case, Matthew Mumbauer suffered both. Matthew was a public elementary school student in Lynn when he was pushed down a stairwell at school by a classmate. Matthew’s fall led to a spinal injury, resulting in permanent paralysis. He and his parents, Alyssa Cormier and James Mumbauer (collectively, plaintiffs), brought claims against a number of defendants in connection with the incident and Matthew’s subsequent medical care. A Superior Court judge allowed a motion to dismiss all claims against the city of Lynn, Lynn Public Schools (school district), and their public employees (collectively, public defendants).[3] The Appeals Court affirmed that decision in an unpublished memorandum and order issued pursuant to its rule 1:28. Cormier v. Lynn, 91 Mass. App. Ct. 1101 (2017). We allowed the plaintiffs’ motion for further appellate review, limited to whether the Massachusetts Tort Claims Act (act), G. L. c. 258, § 10 (j), bars the plaintiffs from bringing claims against the public defendants in relation to this incident. Thus, the issue that we must decide is not whether the school was negligent for failing to act reasonably to prevent the bullying that led to Matthew’s injuries; the complaint alleges that it was, and for purposes of this appeal, we accept that allegation as true. Rather, […]
Grand Manor Condominium Association, et al. v. City of Lowell (Lawyers Weekly No. 10-015-18)
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 SJC-12294 GRAND MANOR CONDOMINIUM ASSOCIATION & others[1] vs. CITY OF LOWELL. Middlesex. October 5, 2017. – January 19, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Hazardous Materials. Massachusetts Oil and Hazardous Material Release Prevention Act. Real Property, Environmental damage. Limitations, Statute of. Practice, Civil, Statute of limitations. Damages, Hazardous waste contamination. Civil action commenced in the Superior Court Department on October 10, 2012. The case was tried before Kathe M. Tuttman, J. The Supreme Judicial Court granted an application for direct appellate review. Alan B. Rubenstein (Stacie A. Kosinski also present) for the plaintiff. C. Michael Carlson, Assistant City Solicitor (Rachel M. Brown, Assistant City Solicitor, also present) for city of Lowell. KAFKER, J. The owners of condominium units at Grand Manor and the Grand Manor Condominium Association (collectively, plaintiffs) filed suit against the city of Lowell (city) on October 10, 2012, for the release of hazardous materials at the Grand Manor condominium site. The plaintiffs brought claims for response costs under G. L. c. 21E, § 4A, and for damage to the plaintiffs’ property under G. L. c. 21E, § 5 (a) (iii).[2] A jury found that the plaintiffs’ claim under § 5 (a) (iii) was barred by the applicable statute of limitations, G. L. c. 21E, § 11A (4). The plaintiffs appealed, and we granted their application for direct appellate review. On appeal, the plaintiffs argue that (1) the statute of limitations did not begin to run until the plaintiffs knew that the property damage was permanent; and (2) the trial judge erred in instructing the jury that the plaintiffs had the burden of persuasion to show that they filed suit within the statute of limitations. The city contends that the plaintiffs needed to know only that there was environmental damage and that the defendant was the source of the damage, not that the damage was permanent, for the limitations period to begin to run. The city also contends that the jury were properly instructed. We conclude that a plaintiff must be on notice that he or she has a claim under § 5 (a) (iii) before that claim may be time barred, and that such notice is separate from a plaintiff’s notice that environmental contamination has occurred. A plaintiff has notice of a claim under § 5 (a) (iii) once the plaintiff learns whether or not […]
Categories: News Tags: 1001518, Association, City, Condominium, Grand, Lawyers, Lowell, Manor, Weekly
City of Beverly v. Bass River Golf Management, Inc., et al. (Lawyers Weekly No. 11-002-18)
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 15-P-171 Appeals Court CITY OF BEVERLY vs. BASS RIVER GOLF MANAGEMENT, INC., & another.[1] No. 15-P-171. Essex. November 14, 2016. – January 5, 2018. Present: Sullivan, Maldonado, & Neyman, JJ. Contract, Municipality, Performance and breach. Municipal Corporations, Contracts. Consumer Protection Act, Trade or commerce, Unfair or deceptive act. Bankruptcy, Stay of other proceedings. Practice, Civil, Directed verdict, Amendment, New trial, Instructions to jury. Judgment, Amendment. Civil action commenced in the Superior Court Department on March 11, 2011. The case was tried before Robert A. Cornetta, J., and a motion to alter or amend the judgment, or for a new trial, was heard by him. Denis J. Sullivan for the defendants. Eitan Y. Goldberg, Assistant City Solicitor (Stephanie M. Williams, City Solicitor, also present) for the plaintiff. MALDONADO, J. In this case, we consider the propriety of actions taken by the city of Beverly (city), which owns the Beverly Golf and Tennis Club (Golf Club), and by Bass River Golf Management, Inc. (Bass River), which operated the facility for almost two years pursuant to a management contract with the city. On March 11, 2011, the city commenced an action in the Superior Court against Bass River and 31 Tozer Road, L.L.C. (Tozer), the guarantor of Bass River’s payment obligations to the city, asserting claims for breach of contract against each party and seeking damages. Bass River filed counterclaims against the city (subsequently amended) which alleged violations of G. L. c. 93A, breach of contract, breach of an implied covenant of good faith and fair dealing, breach of warranty, and conversion. Following a trial, the jury, in response to special questions, found that Bass River had breached its management contract with the city, that Tozer had guaranteed Bass River’s payment obligations, and that the city was entitled to damages of $ 631,969.63. The jury also found that the city had violated the covenant of good faith and fair dealing in its contractual relationship with Bass River, and that the city had converted Bass River’s property. The jury awarded Bass River damages of $ 48,967.33. Thereafter, the judge determined that Bass River had not proved that the city violated G. L. c. 93A. Bass River and Tozer filed a motion to amend the findings of facts and rulings of law, to amend the judgment, […]
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 […]
Saliba v. City of Worcester (Lawyers Weekly No. 11-137-17)
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-591 Appeals Court PHILIP SALIBA vs. CITY OF WORCESTER. No. 16-P-591. Worcester. February 14, 2017. – October 27, 2017. Present: Green, Meade, & Agnes, JJ. Practice, Civil, Motion to dismiss. Public Employment, Polygraph test. Statute, Construction. Civil action commenced in the Superior Court Department on March 27, 2015. A motion to dismiss was heard by James R. Lemire, J. Allyson H. Cohen for the plaintiff. William R. Bagley, Jr., Assistant City Solicitor, for the defendant. AGNES, J. Massachusetts law prohibits employers, public as well as private, from subjecting applicants for employment, as well as employees, to a “lie detector test,” whether the test is administered in this State or elsewhere. G. L. c. 149, § 19B.[1] The statute includes safeguards for employees who assert their rights, provides criminal penalties for those who violate the statute, and permits persons aggrieved by a statutory violation to bring a civil action against the violator for injunctive relief and damages.[2] This appeal requires us to address a question of first impression, namely, whether § 19B(2) prohibits a Massachusetts employer from considering the results of a lie detector test administered lawfully by an out-of-State employer in connection with an individual’s earlier application for employment in another State.[3] For the reasons that follow, we conclude that § 19B(2) does not apply in the circumstances of this case, and accordingly, we affirm the judgment dismissing the plaintiff’s complaint. The plaintiff, Philip Saliba, alleges that the defendant, the city of Worcester (city), violated G. L. c. 149, § 19B(2), by obtaining and referring to a copy of the plaintiff’s lie detector (polygraph) test results from his application for a job with the Connecticut State police (CSP). The judge below allowed the defendant’s motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 747 (1974), and judgment entered accordingly. The plaintiff filed a timely appeal. Background. 1. 2007 CSP and Worcester police department applications. The plaintiff’s claim is based on the following series of events, which are summarized in his complaint. In 2007, the plaintiff, an honorably discharged United States Marine Corps veteran, was working full time as a plumber. He applied for a job with the CSP. As part of the hiring process, the plaintiff voluntarily underwent a polygraph examination.[4] On January 18, 2008, the plaintiff was informed that the reason he was […]
Smith, et al. v. City of Westfield, et al. (Lawyers Weekly No. 10-155-17)
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 SJC-12243 VIRGINIA B. SMITH & others[1] vs. CITY OF WESTFIELD & others.[2] Hampden. April 6, 2017. – October 2, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[3] Municipal Corporations, Parks, Use of municipal property. Parks and Parkways. Constitutional Law, Taking of property. Due Process of Law, Taking of property. Civil action commenced in the Superior Court Department on April 27, 2012. The case was heard by Daniel A. Ford, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Thomas A. Kenefick, III (Mary Patryn also present) for the plaintiffs. Seth Schofield, Assistant Attorney General, for the Commonwealth, amicus curiae. Anthony I. Wilson (John T. Liebel also present) for city of Westfield. The following submitted briefs for amici curiae: Luke H. Legere & Gregor I. McGregor for Massachusetts Association of Conservation Commissions, Inc. Edward J. DeWitt for Association to Preserve Cape Cod, Inc. Sanjoy Mahajan, pro se. Phelps T. Turner for Conservation Law Foundation. Jeffrey R. Porter & Colin G. Van Dyke for Trustees of Reservations & others. GANTS, C.J. Article 97 of the Amendments to the Massachusetts Constitution, approved by the Legislature and ratified by the voters in 1972, provides that “[l]ands and easements taken or acquired” for conservation purposes “shall not be used for other purposes or otherwise disposed of” without the approval of a two-thirds roll call vote of each branch of the Legislature. The issue on appeal is whether a proposed change in use of municipal parkland may be governed by art. 97 where the land was not taken by eminent domain and where there is no restriction recorded in the registry of deeds that limits its use to conservation or recreational purposes. We conclude that there are circumstances where municipal parkland may be protected by art. 97 without any such recorded restriction, provided the land has been dedicated as a public park. A city or town dedicates land as a public park where there is a clear and unequivocal intent to dedicate the land permanently as a public park and where the public accepts such use by actually using the land as a public park. Because the municipal land at issue in this case has been dedicated as a […]
Malden Police Patrolman’s Association v. City of Malden (Lawyers Weekly No. 11-103-17)
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-494 Appeals Court MALDEN POLICE PATROLMAN’S ASSOCIATION vs. CITY OF MALDEN. No. 16-P-494. Middlesex. February 7, 2017. – August 11, 2017. Present: Trainor, Blake, & Shin, JJ. Practice, Civil, Motion to dismiss, Summary judgment. Superior Court. Rules of the Superior Court. Administrative Law, Primary jurisdiction, Exhaustion of remedies. Unjust Enrichment. Contract, Collective bargaining contract, Unjust enrichment, Promissory estoppel. Public Employment, Collective bargaining. Police, Collective bargaining. Massachusetts Wage Act. Civil Service, Collective bargaining, Municipal finance. Municipal Corporations, Collective bargaining, Municipal finance. Civil action commenced in the Superior Court Department on January 21, 2015. The case was heard by Bruce R. Henry, J., on motions to dismiss and for summary judgment. Christopher G. Fallon for the plaintiff. Albert R. Mason for the defendant. BLAKE, J. The plaintiff, Malden Police Patrolman’s Association (union), is a labor organization comprised of approximately seventy-nine police officers employed by the defendant, the city of Malden (city). The union and the city were parties to a collective bargaining agreement (CBA) covering three fiscal years from July 1, 2010, through June 30, 2013. The CBA set forth the provisions governing, among other matters, paid detail work performed by the officers.[1] During the summer of 2014, the union notified the city that it was in arrears on the payment of compensation to officers for detail work, requested a written explanation for the nonpayment, and demanded the outstanding detail pay. The city took the position that, because the officers earned the detail pay for work performed for third parties, the city was exempt from the provisions of the Massachusetts wage and hour laws, requiring timely payment of earned wages. On January 21, 2015, the union filed a complaint in the Superior Court against the city,[2] alleging that the city owed the officers approximately $ 410,000 in compensation for the performance of past detail work.[3] The complaint requested relief under theories of breach of contract (count I), breach of an implied covenant of good faith and fair dealing (count II), promissory estoppel (count III), unjust enrichment (count IV), and violation of the Massachusetts Wage Act, G. L. c. 149, § 148 (Wage Act) (count V). The union then filed a motion for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). The city moved to dismiss the union’s complaint or, in […]
Categories: News Tags: 1110317, Association, City, Lawyers, Malden, Patrolman’s, Police, Weekly
City of Boston v. Boston Police Patrolmen’s Association (Lawyers Weekly No. 10-118-17)
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 SJC-12077 CITY OF BOSTON vs. BOSTON POLICE PATROLMEN’S ASSOCIATION. Suffolk. December 5, 2016. – July 12, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Arbitration, Confirmation of award, Authority of arbitrator. Municipal Corporations, Police. Police, Discharge. Public Employment, Police, Termination. Public Policy. Civil action commenced in the Superior Court Department on July 22, 2013. The case was heard by Dennis J. Curran, J. The Supreme Judicial Court granted an application for direct appellate review. Kay H. Hodge (Geoffrey R. Bok also present) for the plaintiff. Alan H. Shapiro (John M. Becker also present) for the defendant. HINES, J. This is an appeal from a judgment of the Superior Court confirming an arbitrator’s award reinstating a Boston police officer terminated for using a choke hold in arresting an unarmed suspect for disorderly conduct and making false statements in the ensuing departmental investigation. The arbitrator found that the officer, David Williams, had applied a choke hold, but that the choke hold had not actually choked the citizen, that the force was reasonable in the circumstances, and that the officer’s subsequent characterization of events was thus truthful. Accordingly, the arbitrator ruled that the city of Boston (city) lacked just cause to terminate Williams, and ordered his reinstatement with back pay. In July, 2013, the city filed a complaint in the Superior Court to vacate the arbitrator’s award. The court dismissed the complaint in June, 2015, and the city appealed. We granted the city’s application for direct appellate review. Because the award neither exceeds the arbitrator’s authority nor violates public policy, and because we are not free to vacate it where no underlying misconduct was found, we affirm. Background. a. Facts. On January 18, 2012, the city discharged Williams based on specifications arising from a disorderly conduct arrest on March 16, 2009. The specifications were use of excessive force, in violation of Boston police department rule 304 on use of nonlethal force, and untruthfulness in the subsequent investigation, in violation of rule 102, § 23, on truthfulness. Chosen by mutual agreement of the city and the Boston Police Patrolmen’s Association (union) pursuant to a collective bargaining agreement (CBA), an arbitrator held three days of hearings, concluded that the city had proved neither charge, and ordered Williams’s reinstatement […]
Categories: News Tags: 1011817, Association, boston, City, Lawyers, Patrolmen’s, Police, Weekly
Benoit v. City of Boston (and a consolidated case) (Lawyers Weekly No. 10-080-17)
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 SJC-12204 BRIAN BENOIT vs. CITY OF BOSTON (and a consolidated case[1]). Suffolk. January 9, 2017. – May 16, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Workers’ Compensation Act, Compensation, Public employee, Decision of Industrial Accident Reviewing Board, Insurer. Public Employment, Suspension, Worker’s compensation. Municipal Corporations, Officers and employees. Civil action commenced in the Superior Court Department on November 24, 2014. A motion to dismiss was heard by Linda E. Giles, J. Civil action commenced in the Superior Court Department on November 3, 2015. A motion to dismiss was heard by Paul D. Wilson, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John M. Becker for the plaintiff. David Susich (Thomas A. Pagliarulo also present) for the defendant. LENK, J. On September 5, 2011, after working almost twenty years as an emergency medical technician and paramedic for the defendant city’s emergency medical services (EMS), the plaintiff suffered an incapacitating ankle injury while transporting a patient. Unable to work, he received workers’ compensation payments for almost one year pursuant to G. L. c. 152, the workers’ compensation act. Learning that the plaintiff had been indicted on October 31, 2012, on charges relating to misuse of controlled substances intended for EMS patients, the defendant suspended him indefinitely without pay pursuant to G. L. c. 268A, § 25 (suspension statute). After the defendant, a self-insured municipal employer, discontinued the plaintiff’s workers’ compensation payments, he took the matter to the Department of Industrial Accidents (DIA); the defendant was ordered to restore those payments. When the defendant did not comply with the DIA order, the plaintiff sought enforcement in the Superior Court pursuant to G. L. c. 152, § 12 (1). The defendant argued then, as now, that the provision of the suspension statute requiring that suspended public employees “shall not receive any compensation or salary during the period of suspension” prevails over the requirements of the worker’s compensation act, and that the DIA order requiring proscribed payments should accordingly not be enforced. A Superior Court judge agreed and dismissed the enforcement actions.[2] We conclude that workers’ compensation benefits are not “compensation” as defined in the suspension statute, because they are not payments made “in return for services rendered.” G. L. c. 268A, § 1 (a). The Superior Court actions brought by […]
Gannon v. City of Boston (Lawyers Weekly No. 10-059-17)
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 SJC-12136 SEAN GANNON vs. CITY OF BOSTON. Suffolk. December 8, 2016. – April 18, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1] Anti-Discrimination Law, Handicap, Employment, Burden of proof. Employment, Discrimination. Handicapped Persons. Municipal Corporations, Police. Public Employment, Police. Practice, Civil, Summary judgment, Burden of proof. Civil action commenced in the Superior Court Department on September 27, 2012. The case was heard by Douglas H. Wilkins, J., on a motion for summary judgment, and a motion for reconsideration was considered by him. Harold L. Lichten (Adelaide H. Pagano also present) for the plaintiff. Nicole I. Taub, Senior Special Assistant Corporation Counsel, for the defendant. Simone R. Liebman & Constance M. McGrane, for the Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Robert S. Mantell, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. GANTS, C.J. The issue presented on appeal is whether a city is entitled to summary judgment on a handicap discrimination claim under G. L. c. 151B, § 4 (16), where the police department limits an officer to desk duty based on an informed, good faith belief that the officer can no longer safely patrol the streets because of his perceived handicap. We conclude that summary judgment is not appropriate where there are facts in dispute as to whether the officer is a qualified handicapped person capable of performing the full duties of a patrol officer without posing an unacceptably significant risk of serious injury to himself or others. The city at trial may present the evidence that caused the department to believe that the officer cannot safely assume the full duties of a police officer, but that determination rests with the fact finder based on the preponderance of the evidence, not with the department based on its informed, good faith belief. Therefore, we vacate the motion judge’s entry of summary judgment in favor of the city of Boston (city) and remand the case for a trial.[2] Background. The plaintiff, Sean Gannon (Gannon or plaintiff), began working for the Boston police department (department) in 1996. For the first decade of his employment, Gannon was a patrol officer performing the full range of patrol officer duties. Gannon is an avid practitioner of mixed martial arts (MMA) who has trained since his teenage […]