Volume 1982
Article 17
1-1-1982
Chapter 14: Civil Procedure
Michael F. Magistrali
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CHAPTER 14
Civil Procedure
MICHAEL F. MAGISTRAL!*
§ 14.1. Tort Claims Act - Presentment of Claim. In 1978 the Legislature enacted chapter 2S8 of the General Laws, the Massachusetts Tort Claims Act (the "Act").! Under section 4 of chapter 2S8, any person with a claim for damages under the Act must present the claim in writing to the executive officer of the appropriate public employer before commencing a civil action.2 During the Survey year the Supreme Judicial Court decided
three cases involving issues raised by the presentment requirement of the Act. In Proffit v. Commonwealth3 the Court considered whether the Act,
specifically the presentment requirement of section 4, could ever apply to an action filed before the date the statute took effect.4 The second case, Weaver v. Commonwealth,S involved the issue of who the proper party is for the purposes of presentment under the Act.6 Also examined in Weaver
was the effect ofthe relation back principles of Rule IS(c) of the Massa-chusetts Rules of Civil Procedure and the tolling provisions of chapter 260 of the General Laws in a situation where presentment is made to an improper party and not corrected within the permissible period under the Act.7 Finally, in Vasys v. Metropolitan District Commission8 the Court
considered whether an invalid presentment prevented a court from acquir-ing jurisdiction over a claim under the Act.9 The narrowness of the issue
*MICHAEL F. MAGISTRAL! is an Assistant Corporation Counsel for the City of Boston.
§ 14.1. I G.L. c. 258, §§ 1-13, added by Acts of 1978, c. 512, § 15.
2
A civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose.
G.L. c. 258, § 4.
3 385 Mass. 781, 434 N.E.2d 190 (1982).
4 See infra notes 13-22 and accompanying text.
5 387 Mass. 43, 438 N.E.2d 831 (1982).
6 See infra notes 23-36 and accompanying text.
7 See infra notes 37-42 and accompanying text.
s 387 Mass. 51, 438 N.E.2d 836 (1982).
examined in Proffit makes that decision of limited precedential value. 10 The Weaver and Vasys decisionsl l involved issues of wider concern
regarding the presentment requirement of the Act and are of particular significance to practitioners in the Commonwealth.
In Proffit v. Commonwealth12 the plaintiff filed a complaint in the
superior court on March 23, 1978 alleging that negligence on the part of an employee of the Commonwealth had caused him to fall and injure himself on September 20, 1977.13 The defendant filed a motion for dismissal or summary judgment on the ground that the Act provided plaintiff's remedy and the plaintiff had failed to present a claim in writing to the executive officer of the appropriate public employer before commencing suit as required by section 4 of the Act. 14 The superior court judge denied the defendant's motion and reported it to the Appeals Court. IS The Supreme
Judicial Court ordered direct review on its own initiative and affirmed. 16 The defendant in Proffit based its motion on the fact that the Legislature made the Act applicable to all causes of action arising on or after August
16, 1977Y Arguably, because the plaintiff's cause of action arose on September 20, 1977, the day he was injllred, the Act, including the presentment requirement, governed the plaintiff's claim. IS The plaintiff,
however, commenced his action on March 22, 1978, prior to the effective date of the Act, which was July 20,1978.19 The Proffit case thus presented the Supreme Judicial Court with the issue of whether the provisions ofthe Act apply to causes of action Which arose on or after August 16, 1977, but were commenced prior to July 20, 1978. In answering this question in the negative, the Court distinguished "the cause for which a civil action may be brought (cause of action) and the action itself,"20 and stated that the Act applied retroactively to ,. causes of action" arising on or after August 16, 1977, but not to "actions" commenced before the statute's effective date. 21
10 See infra text accompanying note 22.
11 Weaver and Vasys were decided on the same day, with Justice Lynch writing the opinion for the Court in both cases. See 387 Mass .. at 43-44, 438 N.E.2d at 831, 833; 387 Mass. at 51, 483 N.E.2d at 836, 838.
12 385 Mass. 781, 434 N.E.2d 190 (1982). 13 [d. at 781, 434 N.E.2d 191.
14 [d. at 781-82, 434 N.E.2d at 191.
15 /d. at 782, 434 N.E.2d at 191. 16 [d.
17 [d. Acts of 1978, c. 512, § 16 provides that, "[the Act] shall take effect upon its passage and shall apply to all causes of action arising on or after August sixteenth, nineteen hundred and seventy-seven."
18 See 385 Mass. at 782, 434 N.E.2d at 191. 19 [d.
20 [d.
The Proffit opinion has limited precedential value. The Court did not cite any authority for its distinction between "causes of action" and "actions," but relied only on the express language of the statute. 22 There should be very few cases, if any, which fall into this twilight zone between August 16, 1977 and July 22, 1978. This issue will not arise in the vast majority of civil practices.
In Weaver v. Commonwealth23 the plaintiff brought suit under the Act
as administratrix of the estate of a patient who committed suicide at the Westborough State Hospital on March 9, 1978. 24 The complaint alleged negligent treatment and supervision of the decedent. 25 The issue before the Supreme Judicial Court was whether the plaintiff had made a valid presentment of her claim within the two year time period specified by section 4 of chapter 258. 26 The plaintiff had presented a written claim to the Commissioner of the Department of Mental Health (the "Commis-sioner") and to the Administrator of Westborough State Hospital (the "Administrator") on March 6, 1980, within two years after the date upon which the cause of action aroseY The plaintiff also had presented an identical claim to the Secretary of the Executive Office of Human Ser-vices (the "Secretary") on June 6, 1980. 28 The defendant asserted that the plaintiff's action should be dismissed because the plaintiff's first presentment was not made to the appropriate public employer and the second presentment was not within the time limit set by the Act. 29 The plaintiff contended that the first presentment was made to the proper officials and, further, that the second presentment was timely.30 The superior court judge agreed with the defendant and dismissed the plain-tiff's actioh.Ji After taking the case sua sponte, the Supreme Judicial Court affirmed. 32
The Court in Weaver first determined that the plaintiff's initial pre-sentment to the Commissioner and to the Administrator, although within the two year limitation of the Act, was defective. 33 According to the Court, neither the Commissioner nor the Administrator was the
appropri-22 See id.
23 387 Mass. 43,438 N.E.2d 831 (1982).
24 /d. at 43-44, 438 N.E.2d at 831, 833. 25 [d. at 44, 438 N.E.2d at 833.
26 /d. at 45-46, 438 N .E.2d at 833-34. See supra note 2 (text of G.L. c. 258, § 4 prescribing the two year limit).
27 [d. at 44-45, 438 N.E.2d at 833. 28 [d. at 45, 438 N .E.2d at 833.
29 [d. at 45, 438 N.E.2d at 833.
30 /d. at 46-47, 438 N.E.2d at 834.
31 [d. at 45, 438 N.E.2d at 833.
32 [d.
ate public employer for the purposes of presentment under the Act. 34 Referring to the express language of chapter 258, section 1, and chapter 6A, section 16,35 the Court held that presentment of a claim under the Act arising out of the negligence of employees of Westborough State Hospital must be made to the Secretary. 36
The Court next considered the plaintiff's contention that her second presentment made to the Secretary, who was the appropriate public employer, was timely under the Act. 37 The plaintiff's argument concern-ing the timeliness of her second presentment was based on three separate assertions: (1) the first presentment, while not made to the S~cretary, presented the Secretary with constructive notice of her claim; (2) the second presentment was an amendment of the first and should be timely under the relation back principles of Rule 15(c) of the Massachusetts Rules of Civil Procedure; and (3) the two year presentment period was tolled by chapter 260, section 10 of the General Laws. 38 In rejecting the constructive notice argument, the Court discussed in some detail the necessity for presentment being made "in strict compliance with the statute. "39 The Court also declined to apply the relation back principles embodied in Rule 15 to the situation before it.40 The Court refused, "in the absence of compelling reasons, [to] construe the Act so as to abrogate the effect of its clearlanguage. "41 The Court similarly held that the tolling provisions of chapter 260 of the General Laws were inapplicable to causes of aetion arising under the Act because any such causes of action did not have common law origins, but rather were created by statute. 42
In the last of these three cases, Vasys v. Metropolitan District Commis-sion,43 the Supreme Judicial Court considered the effect of the present-ment requirepresent-ment on the jurisdiction of the courts of the Commonwealth over claims under the Act. 44 The Court in Vasys held that failure to make
34/d.
35 G.L. c. 6A, § 16 defines the scope of the Executive Office of Human Services. The pertinent provisions of section 16 are quoted by the Court. 387 Mass. at 46 n.4, 438 N .E.2d at 834 n.4.
36 387 Mass. at 46-47 & nn.4-5, 438 N.E.2d at 834 & nn.4-5. 37 [d. at 47, 438 N.E.2d at 834.
38 [d.
39 [d. at 47-48, 438 N.E.2d at 834-35.
40 [d. at 48-49, 438 N.E.2d at 835. Rule 15(c) provides:
Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment (including an amendment changing a party) relates back to the original pleading.
4\ 387 Mass. at 49, 438 N.E.2d at 835.
a proper presentment did not deprive a court of jurisdiction over the subject matter of a complaint brought under the Act, concluding instead that presentment was merely a condition precedent to bringing such an action.4s In so holding, the Court refused to follow the approach taken by some federal courts interpreting the Federal Tort Claims Act;46 those federal decisions treat the proper filing of an administrative claim as a jurisdictional prerequisite that cannot be waived. 47 The Court in Vasys also implicitly rejected a long line of Massachusetts cases holding that prior notice to a municipality is a jurisdictional requirement for actions brought under chapter 84 of the General Laws. 48
The practical effect of Vasys is that plaintiffs under the Act need only aver generally that all statutory conditions precedent to recovery have been met, and if the defendant does not specifically and with particularity deny those averments, the defendant will not be able to raise defective presentment of notice as a defense.49 If there is no general averment of the performance of conditions precedent, however, there is no obligation to deny the nonexistent averment specifically and with particularity, and the defendant may raise the issue any time before or during trial. so The Vasys case marks a significant departure from prior judicial treatment in Massa-chusetts of statutory causes of action and limitations on such actions, and brings such cases into conformity with the treatment accorded contractual conditions precedent, such as the notice of loss provisions often con-tained in policies of insurance.S!
§ 14.2. Medical Malpractice Tribunal Multiple Theories of Liability -OtTer of Proof. Under chapter 231, section 60B of the General Laws, medical malpractice actions in the Commonwealth are reviewed by a tribunal before they may be brought to trial.! A plaintiff who is
unsuccess-4S Id.
46 Id. at 54, 438 N .E.2d at 839. The pertinent provisions of the Federal Tort Claims Act appear at 28 U.S.C. §§ 1346(b), 2671 (1976).
47 See 387 Mass. at 54, 438 N.E.2d at 839.
48 G.L. c. 84, §§ 1-27A provides a statutory remedy against municipalities for travelers injured by reason of defects in public ways. Section 18 of chapter 84 requires that within
thirty days of any injury the name and place of residence of the person injured and the time,
place and cause of said injury be given by the person injured to the county, city, town or person obligated to keep the place of injury in repair. Section 19 requires that the notice be in writing and presented to specific officers of the body charged with keeping the way safe. This notice requirement cannot be waived by the officers of the municipality.
49 387 Mass. at 55-56, 438 N.E.2d at 840.
so Id.
SI See Travers v. Traveler's Ins. Co., 385 Mass. 81l, 434 N.E.2d 208 (1982); see also Mass. R. Civ. P. 9(c).
ful in establishing the merits of his claim before the tribunal must file a bond before he may proceed with a civil action.2 The scope of the
tribunal's review, however, is limited to medical questions.3 During the Survey year in Lubanes v. George4 the Supreme Judicial Court consid-ered whether an allegation of battery in the form of unauthorized surgery is an appropriate subject for the tribunal to review before it reaches a trial court.s In addition, the Court in Lubanes examined the extent of the offer of proof required before the tribunal when mUltiple theories of liability are relied on by the plaintiff. 6
The plaintiff's complaint in Lubanes alleged. that the defendant physi-cian was negligent in his treatment and care of the plaintiff, and that the defendant performed an operation on the plaintiff without his informed consent and contrary to his express instructions.7 At the required hearing
before a medical malpractice tribunal, the plaintiff offered no evidence to support his negligence claim, but concentrated solely on his claim of unauthorized surgery.s The tribunal concluded that plaintiff's offer of proof was not sufficient to raise a legitimate question of liability appropri-ate for judicial inquiry on the negligence claim.9 The tribunal also found
that the unauthorized surgery claim did not raise an appropriate question for decision by the tribunal. 1 0 The transcript of the hearing indicated that
the tribunal did not view the battery claim as within the scope of chapter 231, section 60B.ll Accordingly, when the plaintiff failed to post the $2,000.00 bond required by section 60B, his action was dismissed as to the negligence counts.12
On appeal before the Supreme Judicial Court, the plaintiff argued that a complaint alleging unauthorized surgery did raise an appropriate question
physician licensed to practice medicine in the commonwealth ... and an attorney authorized to practice law in the commonwealth." G.L. c. 231, § 6OB.
2
If a finding is made for the defendant the plaintiff may pursue the claim through the
usual judicial process only upon filing bond in the amount of two thousand dollars secured by cash or its equivalent with the clerk of the court in which the case is pending, payable to the defendant for costs assessed, including witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment. G.L. c. 231, § 6OB.
3 See Kapp v. Ballantine, 380 Mass. 186, 192 n.6, 402 N.E.2d 463, 467 n.6 (1980). 4 386 Mass. 320, 435 N.E.2d 1031 (1982).
5 See infra notes 13 and 16 and accompanying text. 6 See infra notes 14-15 and 17-20 and accompanying text. 7 386 Mass. at 321, 435 N.E.2d at 1032.
8 Id. .
91d. 101d.
II Id.
for a medical malpractice tribunal.13 The plaintiff further asserted that
because his offer of proof on the battery claim raised a question appropri-ate for judicial inquiry, he should have been allowed to go forward with his entire case, including his negligence claim, without the necessity of posting a bond. 14 In support of his latter contention, the plaintiff relied on the Court's earlier decision in Kapp v. BaliantineY The Court accepted the plaintiff's first proposition, but disagreed with the second.
The first argument was easily settled: The Court stated that "[t]he performance of a surgical procedure by a physician without the patient's consent constitutes professional misconduct. As such, we think it i:o: a type of 'malpractice' within the meaning of G.L. c.231, § 60B."16 The Court was unwilling, however, to permit the plaintiff's negligence claim to proceed to trial solely on the strength of the concurrent battery claim; the plaintiff would first have to present the negligence claim to a tribunal for determination, or else he would have to post the required bondY The Court distinguished Kapp v. Ballantine on the basis that, although several grounds for recovery were alleged in Kapp, including battery, the Kapp plaintiff's offer of proof as to negligence was independently sufficient, and therefore the concurrent claims could proceed without further inquiry by the tribunal and without the posting of any bond.IS The Lubanes Court
narrowed the Kapp rule "to the extent necessary to ensure that When two or more theories of liability, including a negligence claim, are proffered by the plaintiff, the case in negligence can proceed free of bond only upon a satisfactory offer of proof as to negligence." 19 The narrow scope of a tribunal's inquiry in claims based upon theories other than negligence prompted the Court's decision.20 Finally, because it found that the
plain-tiff's mistaken reliance on Kapp was not unreasonable, the Court ordered that the dismissal be removed and the plaintiff be permitted to offer his proof as to his negligence claims before a malpractice tribunal,21
§ 14.3. Standing - Labor Unions as Parties. During the Survey year in Diluzio v. United Electrical, Radio & Machine Workers of America,
13 /d. at 324, 435 N.E.2d at 1033.
14 ld. at 326, 435 N.E.2d at 1035.
IS Id.
16 ld. at 325, 435 N.E.2d at 1034.
17 ld. at 327, 435 N.E.2d at 1035. 18 ld. at 326-27, 435 N.E.2d at 1035.
19 /d. at 327, 435 N.E.2d at 1035.
20 ld. at 325, 435 N.E.2d at 1034. "The narrow focus ofa tribunal's inquiry in cases such
as this one is limited to determining whether the procedure actually performed is or is not the procedure admittedly authorized by the plaintiff." ld.; see also id. at 326-27,435 N.E.2d at 1035.
Local 274,1 the Supreme Judicial Court reconsidered the longstanding common law rule that labor unions, as unincorporated voluntary associa-tions, are not legal entities capable of being sued. The plaintiff in Diluzio was a woman who was assaulted by members of the Local 274 of the electrical, radio and machine workers union as she drove her automobile through a picket line at her place of employment. 2 In her complaint
seeking compensation for mental suffering and damages to her automo-bile, the plaintiff named as defendants two individuals and the local and national union.3 Both unions filed motions to dismiss on the ground that,
under Massachusetts law, labor unions, as unincorporated associations, are not subject to suit under a common name.4 The trial judge allowed the motions, dismissing the complaint as to the unions. 5 The Supreme Judicial
Court reversed the lower court's judgment.6
At the time of the Diluzio decision the state of the law was undisputed. In 1906, the Supreme Judicial Court clearly stated that unincorporated associations such as labor unions were immune from suit. 7 The practice in
Massachusetts was to join as party defendant every member of an unin-corporated association or, if the members were too numerous, to name a number of members to be defendants as representatives of the class.8
The Diluzio Court determined that the basis of the common law rule was no longer valid. It discussed the changing nature of labor unions, pointing out that:
At the time the common law rule was established, labor unions were struggling for their existence and for recognition. Now "[u]nions have become endowed with great privileges and responsibilities as representa-tives of their members. Existence of such privileges must be accompanied by a correlative duty not to misuse them to the injury of [the public or] individual union members. Immunity for liability for misuse is inconsistent with basic notions of justice. "9
The Court therefore concluded that "the rationales which gave meaning and coherence to [the] judicially created rule are no longer vital, and the rule itself is not consonant with the needs of contemporary society." 1 0
The Court observed that it "not only has the authority but also the duty to
§ 14.3. 1 386 Mass. 314,435 N.E.2d 1027 (1982). 2 [d. at 314, 435 N.E.2d at 1028.
3 [d. at 314-15, 435 N.E.2d at 1028. 4 [d. at 315, 435 N.E.2d at 1028. S [d.
o [d. at 319, 435 N.E.2d at 1031.
7 Pickett v. Walsh, 192 Mass. 572,589,78 N.E. 753,760 (1906).
8 See 386 Mass. at 317 n.4, 435 N.E.2d at 1029 n.4.
• [d. at 318, 435 N.E.2d at 1030 (quoting Donnelly v. United Fruit Co., 40 N.J. 61,71-72, 190 A.2d 825, _ (1963)).
§ 14.4 CIVIL PROCEDURE 443
reexamine its precedents rather than to apply by rote an antiquated formula. "II Accordingly, the Court in Diluzio refused to adhere to the established common law rule, and reversed the judgment dismissing the plaintiff's complaint against the labor unionsY
In holding that labor unions are legal entities capable of suing or being sued, the Court expressly limited its holding to labor unions alone, choos-ing not to extend the rulchoos-ing to other types of unincorporated voluntary associations.13 Such an approach recognizes the differences between labor organizations and the infinite variety of unincorporated fraternal, social, beneficial, and community service associations. The Court gave no indication of how it would resolve similar issues presented in the context of such other unincorporated associations. From a legal process point of view, however, it is clear that the Court will not hesitate similarly to "reexamine its precedents" in light of "new institutions and conditions of society ... [and] new usages and practices, as the progress of society in the advancement of civilization may require." 14 Should other
unincorpo-rated associations acquire privileges and responsibilities similar to those held by unions, they, too, will most likely become susceptible to suit.
§ 14.4. Summary Judgment. In considering a motion for summary
judgment, the main question for the court to resolve is whether there still exists a genuine issue of material fact.I During the Survey year in Attorney General v. Bailey2 the Supreme Judicial Court clearly stated the principles
to be observed in reaching this determination. According to the Bailey Court, this inquiry does not require a judge to "pass upon the credibility of witnesses or the weight of evidence [or to] make his own decision of facts. "3 Indeed, the Court strongly suggested that such an inquiry is
improper. 4
The Bailey Court began its analysis with a discussion of the general principles governing motions for summary judgment. The Court noted
[[ ld. (quoting Lewis v. Lewis, 370 Mass. 619,628,351 N.E.2d 526, 531 (1976».
[2 /d. at 319, 435 N.E.2d at 1031.
13 ld. at 319, n.6, 435 N.E.2d at 1031 n.6.
[4 See id. at 319, 435 N.E.2d at 1030-31.
§ 14.4. [MASS. R. CIV. P. 56(c) provides, in pertinent part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, an-swers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any materialfact and that the moving party is entitled to a judgment as a matter of law. (emphasis added).
2 386 Mass. 367,436 N.E.2d 139 (1982).
3 ld. at 370, 436 N.E.2d at 143 (quoting Hub Assocs. v. Goode, 356 Mass. 449,451,258 N.E.2d 733, 735 (1970), quoting Gordon v. American Tankers Corp., 286 Mass. 349, 353, 191 N.E. 51, 54 (1934)).
444 1982 ANNUAL SURVEY OF MASSACHUSETTS LAW § 14.4
that the moving party carries the burden of convincing the judge that there is no remaining issue of material fact. According to the Court, this is an affirmative burdens which the moving party must carry even if he would have no such burden at trial. 6 In determining whether this burden has
been met, the Court stated, the judge must resolve all doubt as to the existence of a genuine issue of material fact against the moving party. 7
Furthermore, the Court noted, the judge must view all inferences drawn from the underlying facts contained in any materials filed with a motion for summary judgment in the light most favorable to the opposing party. 8
Once the moving party has met its burden of showing that no issue as to a material fact exists, the Court indicated, the judge next considers whether that party is entitled to judgment as a matter of law. 9 In meeting its
burden, the Court noted, the moving party must pay particular attention to identifying all the material facts pertinent to the issues raised by the pleadings.tO If a particular fact, though admittedly in dispute, is not
"material" to the issues raised by the pleadings, it will not prevent the allowance of the motion for summary judgment.
The Bailey Court then applied these principles to the facts before it. The defendants contended that the affidavits submitted in the trial court raised a genuine issue of material fact, namely, whether the Grace Bible Church Christian School is a "school" within the meaning of chapter 72, section 2 of the General Laws.l l Accordingly, they argued that summary judgment
had been improperly allowed because there was a remaining issue of material fact.t2 The Court determined that although that issue was
cer-tainly "material" to a determination of the case before it, it was a question oflaw rather than offact.13 The Court therefore held that, under the principles outlined above, the controversy before it was a proper subject for a motion for summary judgment.t4
Another decision of the Supreme Judicial Court during the Survey year,
Slaven v. Salem,tS also dealt with issues concerning a motion for sum-mary judgment. In Slaven, the plaintiff brought an action against the City
5 Id. at 371, 436 N .E.2d at 143.
6 Id. (citing Mack v. Cape Elizabeth School Bd., 553 F.2d 720, 722 (1st Cir. 1977». 7 Id.
Sid.
9 See id. at 370, 436 N .E.2d at 142-43 (quoting MASS. R. CIV. P. 56(c)).
10 Id. at 371, 436 N.E.2d at 143. "[A] party moving for summary judgment assumes the
burden of affirmatively demonstrating that there is no genuine issue of fact on every relevant issue raised by the pleadings." Id. (quoting Mack v. Cape Elizabeth School Bd., 553 F.2d 720, 722 (1st Cir. 1977».
11/d.
12 See id. 13 Id. 141d.
§ 14.4 CIVIL PROCEDURE 445
of Salem as administratrix of her brother's estate. 16 Her brother commit-ted suicide while a prisoner in the custody ofthe City's police department on a charge of open and gross lewdness.17 The suicide took place only four hours after his arrest.I8 The lower court granted the defendant's
motion for summary judgment. 19 The Supreme Judicial Court affirmed the lower court's ruling.20
An apparent disputed fact in Slaven was whether the police officers involved knew that the prisoner was wearing a beltY The Court stated, however, that this fact was "not material because the fact could not aid in establishing negligence without at least a preliminary finding that the city knew, or should have known, that the deceased was a suicidal risk. "22 The defendant City submitted affidavits from the police officers involved that averred facts within their personal knowledge indicating that none of them knew, or should have known, that the prisoner was suicidaI.Z3 The plaintiff was therefore required to allege specific facts which established a genuine, triable issue as to whether in fact the police did know, or had reason to know, that the prisoner was suicidal. 24 Her failure to do so made summary judgment proper; she could not merely rest upon the allega-tions, or denials of her pleadings,25 and she could "not rely on the hope that the judge may draw 'contradictory inferences' in [her] favor from the apparently undisputed facts alleged in the affidavits [of the police officers]. "26 In response to the plaintiff's claim that the affidavits submit-ted by the City were based on facts known only to the police officers, who were interested parties, the Court stated that she should have resorted to Rule 56(f) of the Massachusetts Rules of Civil Procedure if she was "unable to present a sufficient affidavit because the necessary facts or evidence [were] possessed or controlled by the moving party." 27
16 /d. at 885, 438 N.E.2d at 348. 17 [d. at 886, 438 N.E.2d at 349. 18 [d.
19 /d. at 885, 438 N.E.2d at 348. 20 [d. at 886, 438 N.E.2d at 348.
21 See id. at 889-90, 438 N.E.2d at 350-51. 22 [d. at 889, 438 N.E.2d at 350-51. 23 [d. at 888, 438 N.E.2d at 350. 24 [d. at 888-89, 438 N.E.2d at 350.
25 MASS. R. CIV. P. 56(e) provides, in pertinent part:
When a motion for sum!llary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond,
summary judgment, if appropriate, shall be entered against him.
26 386 Mass. at 889, 438 N .E.2d at 350 (quoting Farley v. Sprague, 374 Mass. 419, 425,372
N .E.2d 1298, 1302 (1978».
446 1982 ANNUAL SURVEY OF MASSACHUSETTS LAW § 14.4
Attorney General v. Bailey and Slaven v. Salem reflect a balance between the adversarial positions present on motions for summary judg-ment inherent in the Rules of Civil Procedure. Bailey instructs moving parties to proceed with caution and diligence in identifying material facts presented by the pleadings. A failure to identify properly all material facts and to establish them affirmatively as not in dispute will lead to a denial of a motion for summary judgment. Slaven demonstrates that once this burden has been met, by the filing of proper affidavits or otherwise, the burden effectively shifts to the opposing party. That party must do more than merely rely on the pleadings in contesting the motion.
The primary focus for both parties on a motion for summary judgment must be on the identification of all material facts. Both Bailey and Slaven involved a dispute concerning what constituted a material fact. In Bailey the Court held that the issue whether the Grace Bible Church Christian School was a "school" within the meaning of chapter 72, section 2 of the General Laws was a question of law, and not an issue of material fact. 28 In
Slaven the Court held that the issue of whether the police officers knew or should have known that the decedent was wearing a belt, though a fact in dispute, was not material to the disposition of the motion for summary judgment.29 Both conclusions had a strong impact on the Court's
disposi-tion of the modisposi-tions in each case.
