Perkins v. Commonwealth7/31/2001
Worcester.
October 5, 2000.
Negligence, Employer. Workers' Compensation Act, Exclusivity provision, To whom act applies. Common Law. Employment, Constructive discharge, Termination. Public Employment, Police. Public Policy. Anti-Discrimination Law, Employment.
Civil action commenced in the Superior Court Department on May 5, 1995. The case was heard by James P. Donohue, J., on motions for summary judgment.
While training as a cadet at the State Police Academy (Academy), the plaintiff became ill with a severe cold. She brought this action against three agencies of the Commonwealth and three employees of the Academy, alleging that during her illness she was required to participate in physical activities contrary to a physician's advice, was deprived of sufficient water, and suffered other humiliations and hazing. As a result, she became fearful for her health and found it necessary to resign. She contends that the defendant agencies were negligent in providing her with medical care and, citing G. L. c. 269, § 17, see note 7, infra, that the defendants, by allowing her to be hazed by Academy personnel, constructively discharged her in violation of public policy. She also claims that one of the individual defendants, Trooper Cambria, violated her civil rights. She sought damages for physical and emotional distress, loss of compensation and benefits, attorneys' fees, and reinstatement as a cadet at the Academy. A judge of the Superior Court granted motions for summary judgment for all the defendants. We affirm.
Although the defendants deny that the plaintiff was deprived of rest, water or medicine, for purposes of reviewing the motion judge's ruling, we assume the facts to be as alleged by the plaintiff and make all logically permissible inferences in her favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 203 (1991).
1. Negligence.
The plaintiff recognizes that under G. L. c. 152, § 24, unless an employee expressly preserves his or her common law rights of action, a claim alleging negligence of an employer or of a co-employee is foreclosed by the exclusivity provisions of the workers' compensation act (act). Foley v. Boston Housing Authy., 407 Mass. 640, 641 n.3 (1990). The plaintiff, however, argues that her common law claim of negligence is not barred because her illness, initially a severe cold, may have arisen from sources outside her employment and hence is not compensable under the act. This argument is without merit as her negligence claims are premised upon allegations that Academy personnel exacerbated her medical condition by misdiagnosing her condition and by negligently denying her requests for water, rest, and medication. If these claims were sustained at trial, the harm caused by the defendants' conduct would be compensable under G. L. c. 152, § 1(7A), as such conduct was at least a major cause of her disability or need for treatment. The exclusivity provisions of the act would, therefore, control and preclude her negligence claim.
The plaintiff also urges that her negligence claims are not barred because of the "dual persona" doctrine which provides that an employer's conduct may in some instances be regarded as conduct of a third party and be subject to liability despite the exclusivity provisions of G. L. c. 152. Under this theory, an employer may be subject to suit if its "liability to the injured employee 'derives from a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.'" Barrett v. Rodgers, 408 Mass. 614, 617 (1990), quoting from Gurry v. Cumberland Farms, Inc.
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