The Massachusetts Tort Claims Act governs the procedure in bringing forth suit against a town, city, county, or state government agency.
Prior to Massachusetts passing the Massachusetts Tort Claims Act, the rule of “sovereign immunity” barred any tort actions against a governmental entity (town, city, county, state). However, the Massachusetts Tort Claims Act is a waiver or exception to this rule. Under the Massachusetts Tort Claims Act, you can bring many of the same claims you could bring against a person who injures you. In most cases, the Massachusetts Tort Claims Act limits compensation to $100,000.00 per person, unless your claim is against the Massachusetts Bay Transportation Authority.
Under M.G.L. c. 258 §§ 1-14, municipalities (cities and towns) are liable for the negligent or wrongful acts of their employees committed within the scope of their employment. In most circumstances, these government employees are immune from individual liability. However, there are circumstances where immunity may not apply and they may be open to individual liability, meaning you can bring a claim against them personally. Public employees are not immune from the intentional acts they commit which cause you injury. In addition, if the negligent act is committed outside of the scope of their duty as a public employee, the immunity may not apply.
While the municipalities maintain their immunity from any intentional tort committed by their employees, you can bring suit against the employee individually if they have committed an intentional tort. These intentional torts are listed in the statute and include:
- Assault;
- Battery;
- False arrest;
- False imprisonment;
- Intentional infliction of emotional distress;
- Libel; and/or
- Slander.
In many cases where a municipal employee is sued individually for his or her intentional actions taken during his or her employment, the municipal employer may want to indemnify the employee. The legislature has permitted such indemnification with some limitations. M.G.L. c. 258 § 9 provides:
Public employers may indemnify public employees … from personal financial loss, all damages and expenses, including legal fees and costs, if any, in an amount not to exceed $1,000,000.00 arising out of any claim, action, award, compromise, settlement or judgment by reason of an intentional tort, or by reason of any act or omission which constitutes a violation of the civil rights of any person under any federal or state law, if such employee or official … at the time of such intentional tort or such act or omission was acting within the scope of his official duties or employment. No such employee or official … shall be indemnified under this section for violation of any such civil rights if he acted in a grossly negligent, willful or malicious manner. This section does not make indemnification of municipal employees mandatory.
M.G.L. c. 258 § 13 also speaks to indemnification of some municipal employees and may be applicable, but only if the municipality voted to accept it. Those municipalities that did vote to accept M.G.L. c. 258 § 13:
Shall indemnify and save harmless municipal officers, elected or appointed, from personal financial loss and expense including reasonable legal fees and costs, if any, in an amount not to exceed one million dollars, arising out of any claim, demand, suit or judgment by reason of any act or omission, except an intentional violation of civil rights of any person, if the official at the time of such act or omission was acting within the scope of his official duties or employment.
Presentment
Before you can bring a claim for personal injury or property damage under the Massachusetts Torts Claim Act, under M.G.L. c. 258 § 4, you must first present your claim in writing to the executive officer of the governmental body within two years from the date of your injury.
If you intend to make a claim for personal injury or property damage based on a defect in the public way as found under found in M.G.L c. 84 (bridge, road, highways, etc.) you have thirty (30) days from the date of the incident to comply with the statutory requirements. This notification of your personal injury or property damage claim is the “presentment” of your claim to the government.
If you are making a claim under some other legal provision, there may be other notice requirements that must be complied with. For further advice as to the procedure for filing your claim, you should consult with a seasoned private attorney here at JD Molleur Law, PLLC.
Once you have presented your claim to an executive officer of the government, they then have six months to either respond to your presentment or deny it. If the government fails to respond within the six-month time frame then it is deemed a final denial of the claim and you are allowed to go ahead and file suit against the government.
Defects in a Public Way
Governments in Massachusetts may be liable for defects in a public way (bridge, road, highway, etc.) under M.G.L. c. 84, § 15, the Public Way Statute. Section 15 gives a limited right to recover against a municipality for injuries caused by defects in public ways. Massachusetts courts have consistently held that Section 15 provides the sole remedy against a municipality for personal injuries or property damage resulting from a defect or want of repair in or on a way. Similarly, M.G.L. c. 84 § 18 provides a sole remedy against the Commonwealth of Massachusetts for injuries caused by defects on state highways.
To recover under Section 15, you must prove a defect in the public way. A defect, for the purposes of Section 15 can be anything in the state or condition of the public way that makes it unsafe or inconvenient for ordinary travel. Defects include not only holes, bumps, ruts, and other physical impairments to the road itself that can cause immediate danger to you, but also conceptual problems with the road’s design that may require extra caution when you are on it. The presence of snow or ice on a public way is not considered a defect, nor is the fact that the public way’s shape led to the formation of ice and snow. Unless the public way is defective when it is bare of ice and snow, no recovery is permitted.
A Section 18 public way personal injury or property damage claim against the Commonwealth of Massachusetts requires you to provide thirty days’ notice as a prerequisite to suit. This statutory notice is an indispensable ingredient for your claim against the Commonwealth. Care must be taken to select the correct state entity to serve notice. Serving the wrong party will not satisfy the notice requirement and may result in the dismissal of your claim. If in doubt, serve all possible entities.
Municipalities owe you, and all other people, a duty to exercise ordinary care and diligence when keeping public ways reasonably safe for your use. The statutory duty is to be tested by the rule of reason. The presence of slight imperfections in the surface of the public way, even if they cause an accident, is not a breach of a municipality duty. In addition, to recover against a municipality for injuries caused by a defect in a public way, you must show that the defect was the sole cause of your injuries. Any negligence on your behalf or a wrongful act of a third person can defeat your claim against the municipality. Any claim under the Public Way Statute is limited to $5,000.00, except for wrongful death actions, which are governed by the Massachusetts Tort Claims Act’s limitation of $100,000.00.
If you believe you were injured as a result of a defect in a public way, the experienced personal injury attorneys at JD Molleur Law, PLLC can help you determine the value of your claim and can bring the appropriate action for recovery. We will help you prepare your case in a way that demonstrates the other side is responsible for injuries and other losses. We can also help you understand the strengths and weaknesses of your case and build a strategy to ensure the most successful outcome possible. Although the recovery process can be stressful, you do not need to go at it alone. We will be on your side every step of the way to advise you of your rights, options, and navigate through you through the process. Call us now at 508.579.8333, or email us at info@jdmolleurlaw.com, for a free case evaluation.
