Theisz v. Mass. Bay Transp. Auth.

• Decision Date: 12 December 2018
• Docket Number: SJC-12559
• Citation: 112 N.E.3d 777,481 Mass. 1012
• Parties: Matthew THEISZ v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

481 Mass. 1012

112 N.E.3d 777

Matthew THEISZ

v.MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

SJC-12559

Supreme Judicial Court of Massachusetts.

December 12, 2018

Roberto M. Braceras, Boston, (Amy Bratskeir & Jennifer Minjung Lee Sage also present) for the defendant.

David H. Rich (Benjamin J. Wish also present), Boston, for the plaintiff.

RESCRIPT

The plaintiff, Matthew Theisz, commenced this action against the Massachusetts Bay Transportation Authority (MBTA) and Derek Smith, an MBTA bus driver, alleging that Smith assaulted him. In the complaint, Theisz asserted two claims against the MBTA: negligent hiring, training, and supervision; and vicarious liability. The MBTA answered Theisz's complaint and then subsequently filed a motion for judgment on the pleadings, arguing that Theisz had failed to adequately present the negligence claim as required by the Massachusetts Tort Claims Act (act). See G. L. c. 258, § 4. The MBTA also claimed that it was immune from liability for the vicarious liability claim pursuant to G. L. c. 258, § 10 (c ), because the claim arises out of an intentional tort.

A judge in the Superior Court allowed the motion in part and denied it in part. The judge agreed with the MBTA that it was immune from the vicarious liability claim and allowed the motion as to that claim. With respect to the negligence claim, he agreed with the MBTA that the presentment letter was inadequate, but he concluded that the MBTA had waived the defense of defective presentment by failing to assert it with the specificity and particularity required by Mass. R. Civ. P. 9 (c), 365 Mass. 751 (1974). He therefore denied the motion as to that claim. The MBTA appeals and, in doing so, argues that its appeal, which is interlocutory, is proper pursuant to the doctrine of present execution. We transferred the case to this court on our own initiative.¹

Background. In his complaint, Theisz alleged the following. On March 3, 2015, at approximately 10:45 p.m., Smith was operating an MBTA bus in Lynn. At a bus stop, Theisz asked Smith for directions. Smith got off the bus and attacked Theisz, causing serious and permanent injuries. In August 2015, Theisz sent a presentment letter to the MBTA in which he claimed that Smith had attacked and seriously injured him. The MBTA did not respond. Theisz then filed his complaint, alleging therein that he had provided the MBTA with notice of his claim pursuant to the act. In its answer to the complaint, the MBTA generally denied the allegation that Theisz had notified it of his claims. The MBTA also stated, as an affirmative defense, that Theisz "failed to make proper presentment of [his] claim pursuant to G. L. c. 258, § 4."

In its motion for judgment on the pleadings, the MBTA argued that Theisz's presentment letter was inadequate because it failed to notify the MBTA of the negligence claim that Theisz included in his complaint. Rather, the letter, in the MBTA's view, merely described an incident that amounted to an intentional act, liability for which the MBTA would be immune. The judge agreed, concluding that the only allegation included in the presentment letter was that of an intentional tort for which the MBTA is immune from liability. See Tambolleo v. West Boylston, 34 Mass. App. Ct. 526, 532, 613 N.E.2d 127 (1993) (presentment letter inadequate where it only apprised defendant of claim arising out of intentional tort). The judge went on to note, however, that because presentment is a condition precedent to establishing liability under the act, the MBTA needed to deny Theisz's assertion of proper presentment "specifically and with particularity," pursuant to Mass. R. Civ. P. 9 (c). He concluded that the MBTA had failed to do this and therefore waived its defense of defective presentment. See Martin v. Commonwealth, 53 Mass. App. Ct. 526, 532-533, 760 N.E.2d 313 (2002) (assertion of "boilerplate defenses" does not meet rule 9 [c] particularity requirement). On this basis, he denied the MBTA's motion for judgment on the pleadings as to the negligence claim.

Discussion. 1. Present execution. In considering the MBTA's interlocutory appeal, we must first determine its propriety. As previously noted, the MBTA claims that its appeal is proper pursuant to the doctrine of present execution. In the context of claims of immunity from suit, we have held that the doctrine "applies in cases involving claims of immunity from suit pursuant to G. L. c. 258, § 10," as well as claims of defective presentment pursuant to G. L. c. 258, § 4. Rodriguez v. Somerville, 472 Mass. 1008, 1009-1010, 33 N.E.3d 1240 (2015). This case represents the latter -- that is, a claim by the MBTA of defective presentment.

In the Rodriguez case, the defendant, the city of Somerville, filed a motion to dismiss the plaintiff's complaint on the basis that the plaintiff had failed to meet the presentment requirement pursuant to G. L. c. 258, § 4. See id. at 1008, 33 N.E.3d 1240. The motion was denied, and the city appealed, arguing that the interlocutory appeal was proper pursuant to the doctrine of present execution. See id. at 1010, 33 N.E.3d 1240. In concluding that the appeal was proper, we noted that "[t]he presentment requirement protects government officials from having to face unnecessary and potentially harassing litigation. Allowing an appeal on the basis that presentment was deficient furthers that important public interest." Id.

Although the posture of the MBTA's appeal in this case differs somewhat from that of the Rodriguez case, the same "important public interest" is at stake. In the Rodriguez case, as we have noted, the city was appealing from a judge's ruling that presentment was adequate. Here, the MBTA appeals from a judge's ruling that it waived a particular affirmative defense, rather than directly from any ruling on the adequacy of presentment. The affirmative defense, however, relates directly to the adequacy of presentment and, as such, to the issue of immunity from suit. In both cases -- here as well as in the Rodriguez case -- the issue at the root of whether the appeal is subject to present execution, and whether it is therefore properly before us, is the same.

Our conclusion that the MBTA's appeal is properly before us should not be viewed as an expansion of the doctrine of present execution, however, which we continue to recognize as a narrow exception to the general, very well-settled rule that "absent special authorization ... an appellate court will reject attempts to obtain piecemeal review of trial rulings that do not represent final disposition on the merits" (quotations and citation omitted). Fabre v. Walton, 436 Mass. 517, 520-521, 781 N.E.2d 780 (2002). The purpose of the doctrine is to allow for "immediate appeal of an interlocutory order ... if the order will interfere with rights in a way that cannot be remedied on appeal from the final judgment." Id. at 521, 781 N.E.2d 780, and cases cited. Here, the order denying the MBTA's motion for judgment on the pleadings, which is rooted in a claim of immunity from suit, fits within the doctrine.

2. Adequacy of pleading the affirmative defense. Having determined that the MBTA's appeal is properly before us, we turn now to the issue whether the MBTA sufficiently pleaded its affirmative defense that presentment was inadequate.² We agree with the judge that it did not.

As the judge noted, proper presentment is a condition precedent governed by Mass. R. Civ. P. 9 (c). "[P]resentment is a condition precedent to bringing suit" pursuant to G. L. c. 258, and a defendant must deny a plaintiff's averment of proper presentment specifically and with particularity pursuant to rule 9 (c)"or defective presentment is not an issue in the case." Vasys v. Metropolitan Dist....