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The Supreme Judicial Court is set to consider whether the immunity extended to public employers under the state tort claims act bars claims for negligent retention and supervision brought against the Massachusetts Bay Transportation Authority by a would-be passenger who alleged he was assaulted by a bus driver.
On Dec. 4, the SJC will hear oral arguments in Theisz v. Massachusetts Bay Transportation. Plaintiff Matthew Theisz sued the MBTA under the Massachusetts Tort Claims Act in Suffolk Superior Court in 2016. The plaintiff alleged he suffered a traumatic brain injury when he was assaulted by an MBTA bus driver in Lynn on March 3, 2015.
Citing the bus driver’s history of past incidents that resulted in discipline, the plaintiff asserted the MBTA was liable for negligent hiring, training, supervision and retention.
The MBTA moved for summary judgment, arguing the plaintiff’s negligence claims were barred under G.L.c. 258, §10(j). That section of the Tort Claims Act immunizes public employers from liability for “any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.”
Judge Catherine H. Ham denied the MBTA’s motion, concluding that §10(j) did not apply because the plaintiff’s negligence claims were based on the agency’s conduct rather than the conduct of the bus driver. The Appeals Court affirmed in a March 2024 decision.
The SJC granted further appellate review, soliciting amicus briefs on whether the MBTA “is immune from suit under G.L.c. 258, §10 (j), for claims of negligent hiring, training, supervising, and retaining a public employee who allegedly committed an assault and battery on the plaintiff.”
Maura E. O’Keefe, who is the town counsel for Falmouth, filed an amicus letter on behalf of the Massachusetts Municipal Lawyers Association.
“The Public Duty Rule stands for the proposition that municipalities simply cannot and should not be held liable for every single harm that befalls someone simply because it happens within the municipality — the harm needs to originally cause by some affirmative action on the part of the municipality.”
She said the case was important for a number of reasons.
“Section 10(j) immunity is a codification of the Public Duty Rule,” O’Keefe said. “The Public Duty Rule stands for the proposition that municipalities simply cannot and should not be held liable for every single harm that befalls someone simply because it happens within the municipality — the harm needs to originally cause by some affirmative action on the part of the municipality.”
Attorneys Lucas J. Newbill of Brookline, Thomas R. Murphy of Salem and Kevin J. Powers of Mansfield co-authored an amicus brief filed on behalf of the Massachusetts Academy of Trial Attorneys.
“At the heart of [Theisz v. MBTA is the issue] of whether we are going to read one provision of the [Tort Claims Act] in a manner so broad as to impliedly repeal another provision of the act, or are we going to read them both as mutually compatible.”
— Kevin J. Powers, Mansfield
According to Powers, the Legislature’s addition of §10(j) in 1993 should not be read to “impliedly repeal” §10(c) of the Tort Claims Act, which prior caselaw had interpreted to allow claims for negligent retention and supervision.
“At the heart of [Theisz v. MBTA is the issue] of whether we are going to read one provision of the [Tort Claims Act] in a manner so broad as to impliedly repeal another provision of the act, or are we going to read them both as mutually compatible,” Powers said.
Incident in Central Square
The plaintiff’s complaint alleged that he was lost in a blizzard in Lynn’s Central Square on the evening of March 3, 2015, when he saw an MBTA bus driven by Derek Smith passing by. Theisz attempted to flag the bus down without success. He ran after the bus and banged on the back door to get the driver’s attention. The bus stopped, and the plaintiff banged on the front door to get Smith to allow him to board.
Smith opened the door, and an argument ensued. The plaintiff alleged that, after he called Smith a name, the driver lunged at him. The plaintiff claimed that as he tried to get away, Smith punched him in the back of the head, knocking him down. The plaintiff alleged that Smith then kicked him and stomped on his head. An ambulance took the plaintiff to a local hospital where he was treated for a traumatic brain injury.
The MBTA hired Smith as a part-time driver in 2010. The bus driver allegedly had a history of disciplinary infractions based on unsafe driving and exhibiting hostile behavior towards the public and supervisors.
Despite this history, the MBTA made Smith a full-time driver in 2013. Eight months following his promotion, the MBTA gave Smith a one-day suspension for allegedly attacking and beating a passenger. In the course of assaulting the passenger, Smith allegedly crashed the bus he was driving into three parked cars.
In February 2014, a police officer stopped Smith’s bus for a traffic violation. The officer arrested Smith for refusing to provide his license and registration, and his passengers were left stranded on the bus. The MBTA took no disciplinary action against Smith over the incident.
Tort Claims Act amended
The Legislature enacted the Tort Claims Act in 1978 to allow for public employers to be held liable to a certain extent for the tortious acts of employees in the course of their employment.
However, §10(c) of the act provides public employers with immunity from liability for “any claim arising out of an intentional tort, including assault, battery, false imprisonment, false arrest, intentional mental distress, malicious prosecution, malicious abuse of process, libel, slander, misrepresentation, deceit, invasion of privacy, interference with advantageous relations or interference with contractual relations.”
In 1989, the SJC in Dobos v. Driscoll held that §10(c) did not immunize public employers for claims such as negligent retention “where the supervisory officials allegedly had, or should have had, knowledge of a public employee’s assaultive behavior.”
In 1993, the Legislature amended the Tort Claims Act to add §10(j).
Before the Appeals Court, the MBTA argued that, given the addition of that section, public employers are now immune from liability for negligent retention claims.
But the Appeals Court found §10 (j) inapplicable given that the plaintiff’s claims of negligent hiring, supervision, and retention were based on the conduct of the MBTA and not on the conduct of its bus driver, Smith.
“The reference to ‘the violent or tortious conduct of a third person’ in §10(j) does not include conduct of public employees,” wrote Judge Gregory I. Massing for a unanimous panel. “In cases in which §10(j) has been held to exempt public employers from liability for failing to prevent the violent conduct of a third party, the third party in question has never been a public employee.”
The court further rejected the MBTA’s argument that the plaintiff’s negligence claims fell within the scope of “failure to act to prevent or diminish the harmful consequences” of a public employee’s conduct within the meaning of §10(j).
“As previously noted, negligent hiring, training, supervision, or retention claims are based on the negligent conduct of the public employer rather than on the intentional conduct of the public employee,” Massing wrote. “If the MBTA knew or should have known of Smith’s assaultive behavior, it was the MBTA’s promotion and retention of Smith, not its failure to prevent his assault on the plaintiff, that forms the basis of its liability.”
According to the MMLA’s O’Keefe, the Appeals Court’s decision in Theisz “upends” longstanding precedent in both state and federal court.
“Those decisions barred these claims for negligent supervision and negligent training,” O’Keefe said. “Section 10(j) provides immunity not just from liability but from suit. It’s about conservation of municipal resources.”
The parties’ arguments
The MBTA’s attorney, John J. Bonistalli of Boston, was unavailable for comment.
In the agency’s brief filed with the SJC, Bonistalli argued that the Legislature enacted §10(j) as a “statutory embodiment” of the common law public duty rule, which historically protected public employers from tort liability. According to the MBTA’s brief, the plaintiff’s claims fail to satisfy §10(j)’s “original cause” threshold.
“In this case, the plaintiff’s central claim is that had the MBTA acted differently, e.g., had the MBTA not promoted, better disciplined, better trained, better supervised, or simply fired Smith after certain reported incidents, the assault might have been potentially averted,” Bonistalli wrote. “The very statement of these possibilities demonstrates why the plaintiff’s claims in this action are precluded by the exemption because they are all examples of ways in which the MBTA might have prevented the assault and thus the plaintiff’s claims are precluded by the exemption. To interpret ‘original cause’ to include conditions that are, in effect, failures to prevent harm, would undermine the principal purpose of the exemption.”
The plaintiff’s attorney, Frank J. Federico Jr. of Boston, did not respond to a request for comment. In the plaintiff’s appellee brief, Federico countered the defense’s contention that MBTA’s retention and promotion of Smith was insufficient under the circumstances to constitute an “affirmative act” and, therefore, an “original cause” for purposes of §10(j).
“MBTA’s conduct here was not a mere ‘failure to prevent harm,’ and the cases MBTA relies upon involved allegedly untrained or unsupervised public employees’ failure to prevent harm to a plaintiff caused by third parties or a situation beyond the public employer’s control,” Federico wrote.
The brief urged the court to reject the policy argument raised by the MBTA in seeking to overturn the decisions of the courts below.
“Contrary to MBTA’s argument, the ‘protection of the public fisc’ does not require that public employers have complete immunity from negligence in those rare cases in which the public employer knowingly and negligently continues to put members of the public at risk by retaining a violent public-facing employee with a history of hostile conduct toward the public employer’s own customers,” it stated.
MATA’s Powers said that the SJC’s acceptance of the MBTA’s arguments would have dire consequences.
“It would effectively read certain torts sounding in negligence right out of the [Tort Claims] Act,” he said.
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