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Peter Fellman v. Jaikaur Khalsa
Hely, J.
The complaint alleges that the plaintiff was injured in a two-vehicle accident on a public way in Dover. The complaint alleges that the plaintiff was injured “as a result of the negligence of the officer of the Town of Dover” and of the negligence of the co-defendant Jaikaur Khalsa. Jaikaur Khalsa was the
[239] driver of a vehicle that struck the vehicle in which the plaintiff was riding.
According to the complaint, the police officer was “directing traffic” near a “stopped tree service truck.” The complaint alleges that the officer “directed the driver of the vehicle in which the plaintiff was a passenger to stop her vehicle on a curve.” The complaint further alleges that the officer “made no effort to warn the other driver” of the danger.
By statute, Dover is entitled to immunity from the plaintiff s negligence claim because it is a claim “based upon the failure to establish ... a particular police protection service, or if police protection is provided, for failure to provide adequate police protection . . .” G.L.c. 258, §10 (h); see Pallazola v. Foxborough, 418 Mass. 639, 641 (1994) (plaintiff injured on a public way when a goal post carried off by football fans made contact with an electrical wire; town immune under both Section 10(h) and Section 10(j)); Makynen v. Mustakangas, 39 Mass.App.Ct. 309, 314 & n.6 (1995) (plaintiff injured by intoxicated driver after police officer stopped him and gave a warning for speeding).
The everyday operations of a police department attempt to provide some degree of protection to the public as a whole from a wide variety of accidents and public safety risks. A police officer’s directing traffic on a public way is a common form of providing police protection to the public for the risks involved in motor vehicle traffic. Such protection can never be perfect. The Legislature in Section 10(h) has determined that a “failure to provide adequate police protection” cannot be the basis for a negligence suit against a city or town.
ORDER
The Town of Dover’s motion to dismiss is allowed.