Civil action commenced in the Superior Court Department on January 21, 2022.

      A motion to dismiss was heard by Michael A. Cahillane, J.

David Hadas for the defendants.

Hugh R. Curran (Danielle L. Nudelman-McGonigle also

present) for the plaintiffs.

      TOONE, J.  This interlocutory appeal concerns the standard for pleading negligence claims against public employees for alleged conduct committed outside the scope of their office or employment.  Following a man's tragic death at a private establishment in Quincy (city), his estate, wife, and children sued the city's police chief and a police officer who was assigned to work there on a police detail.  After these defendants moved to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), a Superior Court judge dismissed the claims against them in their official capacity, but denied the motion as to the claims against them in their individual capacity because the Massachusetts Tort Claims Act (MTCA) does not immunize public employees from liability for conduct outside "the scope of [their] office or employment."  G. L. c. 258, § 2.  After examining whether the allegations in the complaint plausibly suggest that they acted outside the scope of their office or employment, we affirm the denial of the motion as to the officer but conclude that all claims against the chief of police should be dismissed.

      Background.  We summarize the pertinent facts as alleged in the plaintiffs' complaint, accepting as true the factual allegations therein and drawing all reasonable inferences in the plaintiffs' favor.  See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).  The lead plaintiff is the personal representative of the estate of Christopher W. McCallum, who was killed in a fight at the Robert I. Nickerson Post No. 382, Inc. (Nickerson Post), in the city after attending a concert there on January 26, 2019.  The defendant Paul Keenan was the chief of the city's police department, and the defendant Christopher Bulger was an officer in that department. 

      The Nickerson Post invited and sold concert tickets to the general public. It also hired a "Quincy police detail" to ensure safety and security.  Bulger was the police officer assigned to work the detail on January 26.  That evening, the Nickerson Post was "over capacity" and in "complete chaos."  It overserved alcohol to patrons, and there were numerous fights, disturbances, and assaults.  Bulger did nothing to stop the overservice of alcohol, address violent behavior, or remove the responsible individuals.  He left his post early, "leaving no security in place for the duration of the event, when he knew, or should have known, that the conduct of patrons was escalating and would lead to further violence."  On the early morning of January 27, McCallum attempted to aid a patron who was being assaulted by two intoxicated patrons, was assaulted himself, suffered injuries, and died the next day. 

      The plaintiffs commenced this action against, among other defendants, the city, Keenan, and Bulger.  Pertinent to this appeal, the complaint asserted claims against the city for negligence; negligence resulting in wrongful death under G. L. c. 229; and gross negligence resulting in wrongful death under G. L. c. 229, relating to the allegedly dangerous conditions at the Nickerson Post.  The complaint asserted similar claims against both Keenan and Bulger, as well as an additional claim against Bulger for wanton and reckless conduct resulting in wrongful death under G. L. c. 229.  McCallum's wife and children also asserted claims against Keenan and Bulger, among others, for loss of consortium based on the other claims and allegations in the complaint.  The plaintiffs sued Keenan "in his official capacity as the Chief of Police of the Quincy Police Department," as well as "personally and individually," and Bulger "in his official capacity as a Quincy Police Officer as well as in his personal and individual capacity."

      The city, Keenan, and Bulger moved to dismiss the claims against them for failure to state a claim.  See Mass. R. Civ. P. 12 (b) (6).  The judge declined to dismiss Keenan and Bulger as parties, reasoning that "a paid detail by a police officer raises a jury question regarding whether the officer was acting as a public officer in a public place or as an employee of the private establishment for private purposes on private property," and "the scope of employment is usually a jury question."  He dismissed the claims against the city under G. L. c. 258, § 10 (h),[4] and dismissed the claims against Keenan and Bulger in their official capacity for the same reason.  The judge denied that portion of the motion seeking to dismiss the claims against Keenan and Bulger in their individual capacity "because the MTCA only applies to government employees acting within the scope of their office or employment."  Keenan and Bulger appeal from that denial under the doctrine of present execution.  See Brum v. Dartmouth, 428 Mass. 684, 688 (1999).

      Discussion.  We review the sufficiency of the plaintiffs' complaint de novo.  See Curtis, 458 Mass. at 676.  "[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief."  Id., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008).

      In 1978, the Legislature enacted the MTCA "to replace the common-law doctrine of governmental immunity, and its myriad judicially created exceptions, with a comprehensive statutory scheme governing the tort liability of public employers."  Morrissey v. New England Deaconess Ass'n -- Abundant Life Communities, Inc., 458 Mass. 580, 590 (2010).  Under the MTCA, public employees who commit "negligent or wrongful" acts or omissions "while acting within the scope of [their] office or employment" are immune from liability.  Berry v. Commerce Ins. Co., 488 Mass. 633, 636 (2021), quoting G. L. c. 258, § 2.  Instead, unless a statutory exemption applies, see note 4, supra, public employers may be held liable for injuries caused by the negligent or wrongful acts or omissions of their employees acting within the scope of their office or employment, but their liability is capped at $100,000 per plaintiff.  See Irwin v. Ware, 392 Mass. 745, 766-767 (1984), citing G. L. c. 258, § 2.

      The immunity afforded to public employees by G. L. c. 258, § 2, encompasses claims for negligence, gross negligence, and reckless conduct.  See McNamara v. Honeyman, 406 Mass. 43, 46 (1989); Parker v. Chief Justice for Admin. & Mgt. of the Trial Court, 67 Mass. App. Ct. 174, 180 (2006); Jackson v. Milton, 41 Mass. App. Ct. 908, 908-909 (1996).  Because that includes all the claims asserted against Keenan and Bulger,[5] they are immune to the extent that the claims are based on alleged conduct within the scope of their office or employment.  See Taplin v. Chatham, 390 Mass. 1, 2 (1983).  On the other hand, the claims may proceed if their alleged conduct occurred outside the scope of their office or employment, because the MTCA does not immunize public employees for such conduct.  See Berry, 488 Mass. at 633-634.  In that case, they may be held personally liable, without the benefit of the $100,000 cap under G. L. c. 258, § 2. 

      That the plaintiffs sued Keenan and Bulger in their individual capacity does not resolve the scope of the office or employment issue.[6]  Although this averment indicates a belief (at least, in the alternative, see infra) that these defendants acted outside the scope of their office or employment, conclusory allegations and labels are inadequate to plausibly suggest a plaintiff's entitlement to relief.  See Iannacchino, 451 Mass. at 636.  Rather, to proceed with their claims against Keenan and Bulger, the plaintiffs' allegations must plausibly suggest that each defendant's conduct occurred outside "the scope of his office or employment" and is therefore not shielded by the immunity that public employees usually receive under G. L. c. 258, § 2.[7]

      "The scope of an employee's employment is not construed restrictively."  Clickner v. Lowell, 422 Mass. 539, 542 (1996), quoting Howard v. Burlington, 399 Mass. 585, 590 (1987).  In determining whether public employees acted within the scope of their employment, courts "apply the common-law test, which is based on principles of vicarious liability, respondeat superior, and agency, and which 'considers whether the act was in furtherance of the employer's work'" (footnote omitted).  Berry, 488 Mass. at 636-637, quoting Clickner, supra.  Courts consider "three factors, each of which must be met to sustain the conclusion that the employee's conduct fell within the scope of the employment:  (1) 'whether the conduct in question is of the kind the employee is hired to perform'; (2) 'whether it occurs within authorized time and space limits'; and (3) 'whether it is motivated, at least in part, by a purpose to serve the employer.'"  Berry, supra at 638, quoting Clickner, supra. 

      Here, the allegations do not plausibly suggest that Keenan acted outside the scope of his office.  All of his alleged conduct was "in furtherance of" his duties as chief of police.  Clickner, 422 Mass. at 542.  For example, the complaint alleges that Keenan inadequately trained officers assigned to details at private establishments, failed to promulgate policies and procedures on detail assignments, and did not investigate or discipline officers who abandoned their assigned posts.  Keenan is not alleged to have done work he was not hired to perform by the city, acted outside the authorized limits of his role as chief, or been motivated entirely by a purpose other than serving the city.

      The plaintiffs argue that, since they allege that other city police officers did not properly investigate individuals involved in McCallum's death (because those individuals were related to another member of the police department), it can be inferred that Keenan and Bulger "were motivated by personal and political aims rather than to serve the interests of their municipal employer."  Setting aside whether it is reasonable to infer a party's motivation or intent from the alleged actions of others, the allegations do not in any event plausibly suggest that Keenan's conduct was not motivated "at least in part" by his duty to serve the city.  Berry, 488 Mass. at 638, quoting Clickner, 422 Mass. at 542.  See Wang Lab., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859-860 (1986) (employee's interference with contractual relations "motivated by self-interest" but fell within scope of employment because he acted "at least in part" with intent to serve employer); Pettiford v. Branded Mgt. Group, LLC, 104 Mass. App. Ct. 287, 293-294 (2024).[8]  Officer training and discipline and the issuance of policies and procedures are central to the work of a police chief, and the claim that Keenan's execution (or nonexecution) of these functions was not even partly motivated by his duties as chief is untenable.  See Restatement (Third) of Agency § 7.07(2) & comment c (2006) (failure to perform assigned responsibilities may be within scope of employment).

      As for Bulger, at least at the pleading stage this case is controlled in material respects by Davis v. DelRosso, 371 Mass. 768, 770-772 (1977).  In that case, a cafe had "an informal arrangement" with a city police department in which off-duty officers served as bouncers at the cafe, apparently in uniform but not under the command of a superior officer.  Id. at 770.  The court concluded that, based on these facts, a jury could find that the officer was "acting not as [a] public [officer] in a public place but as [an employee] of the defendant for its private purposes on its private premises."  Id. at 772, quoting Cowan v. Eastern Racing Ass'n, 330 Mass. 135, 144 (1953).  Although that case was decided before the MTCA was enacted, the court applied the same "common-law test" used to determine scope of employment under the MTCA.  Berry, 488 Mass. at 636-637.

      Applying Davis, and drawing all reasonable inferences in the plaintiffs' favor, we conclude that the allegations support a plausible inference that Bulger's allegedly tortious conduct occurred outside "the scope of his office or employment."  G. L. c. 258, § 2.  The plaintiffs sued Bulger for his acts and omissions while working essentially as a security guard at a private establishment.  Even though the complaint does not specify who paid Bulger or assigned him his duties at the Nickerson Post, it alleges sufficient facts to infer that he was being paid separately for his work on the detail and that his duties there were distinct from his authorized duties as a police officer.  It can also be inferred from his alleged indifference to the overservice of patrons and unruly behavior at the Nickerson Post that he was motivated to serve the commercial interests of that establishment, not the interests of the police in maintaining public order and safety.

      To be sure, some of the allegations in the complaint are inconsistent with the plaintiffs' contention that Bulger acted outside the scope of his employment.  For example, the allegation that detail officers "frequently leave or are discharged early from detail assignments, without impunity [sic], in violation of the City of Quincy's rules and regulations" implies that, as a detail officer, Bulger was subject to the city's oversight and control.  Similarly, the allegation that the city failed to adequately train its officers on "the reasonable performance of a detail officer's duties in a licensed premise" suggests that the city exercised authority over police details.[9]  Insofar as the plaintiffs sued Keenan and Bulger in both their official and individual capacities (as well as the city itself) about the allegedly inadequate security at the Nickerson Post, it is not surprising that some of their allegations conflict.  Because a complaint "may demand relief in the alternative and may contain inconsistent allegations," those conflicting allegations do not require dismissal of the individual capacity claims against Bulger now.  Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979).  See Anzalone v. Administrative Office of the Trial Court, 457 Mass. 647, 652 (2010), quoting Matter of Hilson, 448 Mass. 603, 613 (2007) ("Modern rules of pleading permit alternative pleading"); Mass. R. Civ. P. 8 (e) (2), 365 Mass. 749 (1974).

      Although the plaintiffs, under Massachusetts precedent, may proceed with their claims against Bulger at this stage of the proceedings, our holding does not imply any view as to how this issue will ultimately be resolved.  See Doe v. Cambridge Pub. Sch., 101 Mass. App. Ct. 482, 485 (2022), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("The plausibility standard is not akin to a 'probability requirement'").  Rather, we expect that the scope of Bulger's employment will continue to be a critical issue as the plaintiffs litigate their claims against him.  Among the facts that may bear on this issue are who hired or assigned Bulger to work as a detail; what communications took place among Bulger, the city or police department, and the Nickerson Post about his role; who paid him and how; who directed, controlled, and supervised his activities at the Nickerson Post; whether Bulger wore a police uniform; what role the city or police department has in authorizing details at private establishments; and what official rules, policies, or procedures apply to detail work.  See Berry, 488 Mass. at 639-641 (identifying circumstances relevant to whether police officer was acting within scope of employment); Clickner, 422 Mass. at 542-544 (same); Davis, 371 Mass. at 771-772 (same).  We further note that while sometimes the scope of a defendant's office or employment can present an issue for the jury, see, e.g., Davis, supra at 772, in other cases the issue can be appropriately decided at summary judgment.  See, e.g., Berry, supra at 634; Taplin, 390 Mass. at 2.  In general, because the issue determines whether a defendant will receive the immunity generally afforded to public employees under G. L. c. 258, § 2, it should be decided at the earliest possible stage of litigation.

      Conclusion.  The portion of the order denying the motion to dismiss counts XXVIII, XXIX, XXX, XXXI, and XXXII against Keenan is reversed.  The portion of the order denying the motion to dismiss the claims against Bulger in his individual capacity is affirmed.

So ordered.

footnotes

[1] Of the estate of Christopher W. McCallum.

[2] Kathleen E. McCallum, individually and on behalf of her two minor children, and Ryan W. McCallum.

[3] Christopher Bulger and Paul Keenan.

[4] General Laws c. 258, § 10 (h), "immunize[s] a municipality when the criminal acts of a third person are a cause of a plaintiff's harm, and the police were negligent in not preventing that criminal conduct."  Carleton v. Framingham, 418 Mass. 623, 629 (1994). 

[5] The plaintiffs do not contend that their claim against Bulger for wanton and reckless conduct resulting in wrongful death under G. L. c. 229 is an intentional tort that falls outside the scope of G. L. c. 258, § 2.  See Desmond v. Boston Elevated Ry., 319 Mass. 13, 16 (1946) (distinguishing "wanton" and "reckless" in wrongful death statute from willful conduct "in the sense of conduct intended to do harm").  Nor do they dispute that Keenan and Bulger were public employees at the time.  See McNamara, 406 Mass. at 48, citing Kelley v. Rossi, 395 Mass. 659, 661 (1985).

[6] Under Mass. R. Civ. P. 9 (a), 365 Mass. 751 (1974), it is not necessary for a plaintiff to aver "the capacity of a party to sue or be sued."  Rather, a party that wishes to raise an issue as to such capacity may do so "by specific negative averment," id., or, where the issue appears from the face of the complaint, through a motion to dismiss under rule 12 (b).  See Orion Ins. Co. PLC v. Shenker, 23 Mass. App. Ct. 754, 756 (1987).

[7] In general, damages claims against government officials or employees sued in their official capacity are treated as claims against the government entity itself and are subject to whatever immunity may apply to that entity.  See, e.g., Howcroft v. Peabody, 51 Mass. App. Ct. 573, 596 (2001) (intentional tort claims against city employees sued in official capacity properly dismissed because municipalities not liable for intentional torts committed by employees under G. L. c. 258, § 10 [c]).  If they are instead sued in their individual capacity, other limitations on their liability may apply.  See, e.g., Nelson v. Salem State College, 446 Mass. 525, 537 (2006) (although public employees may be personally liable for intentional torts, doctrine of common-law employee immunity applies).  The immunity provided under G. L. c. 258, § 2, shields public employees from liability for negligence even when they are sued in their individual capacity.

[8] In Pettiford, we considered whether, under the doctrine of respondeat superior, the plaintiff could bring a claim for violation of the public accommodations law against the employer of a cook who allegedly delayed his order, threw food at him, and called him a racial epithet.  104 Mass. App. Ct. at 293.  We concluded that the claim against the employer could proceed because the allegations satisfied each of the three factors required to determine that the cook acted within the scope of her employment.  See id. at 293-295.  The procedural posture of this case is different because, as public employees, Keenan and Bugler are liable only for alleged conduct that occurred outside the scope of their office or employment.  G. L. c. 258, § 2.  Nevertheless, the same test for scope of employment applies in both situations.

[9] The defendants also point to the allegation that Bulger's actions "were taken under color of the laws of the Commonwealth of Massachusetts and the City of Quincy."  While an allegation that a defendant "acted under color of law" is an essential requirement for an action under 42 U.S.C. § 1983, it is not necessarily inconsistent with a claim that the defendant acted outside "the scope of his office or employment" for purposes of G. L. c. 258, § 2.  A defendant may "act[] under color of State law" but not "within the scope of his employment" if he misuses or abuses the authority given to him by the government.  Maimaron v. Commonwealth, 449 Mass. 167, 178 (2007).