Roberto M. Braceras (Amy Bratskeir & Jennifer Minjung Lee
Sage also present) for the defendant.
H. Rich (Benjamin J. Wish also present) for the plaintiff.
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
(c0, because the claim arises out of an intentional tort.
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.
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."
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
(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 (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.
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 (2015) . This
case represents the latter -- that is, a claim by the MBTA of
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. 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. 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.
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.
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 (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, 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.
Adequacy of pleading the ...