What is required to file a tort claim against a public employer?

Presentment requirement statute under the Tort Claims Act

The Massachusetts Tort Claims Act (MTCA) eliminated traditional sovereign immunity from lawsuits for the state, cities and towns and most agencies, and permits tort claims to be brought against public employers in accordance with the procedure set forth in the Act, including presentment of claims within two years, a three-year statute of limitation, and, generally, a cap on damages at $100,000.00. In 2009, the legislature amended the MTCA to define the Massachusetts Bay Transportation Authority (MBTA) as a public employer within the scope of the Act.

Presentment Requirement

An important provision of the MTCA is the presentment requirement. Under the Act, a tort claim against a public employer must be presented to its “executive officer,” as defined in the statute, within two years after the cause of action arose and prior to bringing a lawsuit. Because the Act is an exception to tort immunity, the presentment requirement is strictly construed and the failure to make proper presentment is grounds for the dismissal of a subsequent legal action.

Proper Notice to Executive Officer

One recent case illustrates, in particular, the importance of the procedural requirement. In that case, a plaintiff, who was injured when an MBTA bus struck her vehicle, sent notice of her claim to the MBTA Claims Department within the two-year period. The MBTA investigated the claim and made settlement offers after the presentment period had passed. Although the MBTA was able to settle with other parties involved in the accident, the plaintiff rejected the settlement offers and brought suit against the MBTA in court. The MBTA filed a motion for summary judgment arguing that the plaintiff failed to make presentment of her claim to the MBTA’s “executive officer,” as required by the statute.

DismissalFailure to Give Actual Notice

The trial court judge denied summary judgment relying on the recognized “actual notice” exception under which the “presentment requirement will be deemed fulfilled if the plaintiff can show that, despite defective presentment, the designated ‘executive officer’ had actual notice of the written claim.” The Appeals Court, however, reversed and awarded summary judgment to the MBTA stating that the actual notice exception is narrow, and finding that there was no basis in the circumstances to infer that the MBTA’s “executive officer” had “actual notice” of the claim within the presentment period. The court noted that although “this is a harsh result, particularly where it may have made no practical difference to the MBTA that the ‘executive officer’ himself was not notified of the plaintiff’s claim,” it was not in a position to change the rule adopted by the legislature.


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