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Listen to this articleWhere a defendant city was sued for negligence after a tree located on the city’s property fell onto private property and damaged a home, the denial of the city’s motion for summary judgment should be upheld despite the city’s claim of immunity under the so-called “discretionary function” exception to the Massachusetts Tort Claims Act.
“On February 25, 2019, a tree fell on the home of Mary Hebert in the city of Chicopee (city), causing substantial damage. The tree had been located on the city’s property, in the tree belt in front of Hebert’s home. Hebert’s subrogee, Citation Insurance Company (plaintiff or Citation), paid Hebert’s insurance claim, and brought this negligence action against the city. The city sought summary judgment on two grounds relevant to this appeal: (1) that the plaintiff had failed to make proper presentment as required by G.L.c. 258, §4, of the Massachusetts Tort Claims Act (MTCA), G.L.c. 258; and (2) that the city was immune from tort liability under the MTCA, based upon the so-called ‘discretionary function’ exception, G.L.c. 258, §10(b) (§10[b]).
“A Superior Court judge denied summary judgment, and the city appeals, properly invoking the doctrine of present execution. … The city argues that its decision whether to remove a tree is a discretionary function, and thus that it is immune from suit pursuant to §10(b). … The applicability of the §10(b) exception is a question of law, however, which turns on whether the public act at issue involves ‘policy making or planning’; §10(b)’s application is not determined by whether the public body itself chooses to define its actions as ‘discretionary.’ … And here, the tree warden’s alleged failure to remove an unhealthy tree does not qualify as ‘policy making or planning’ under the case law. We affirm. …
“We think it clear, given the case law and the standards there articulated, that the exclusion does not apply to the plaintiff’s claim here. The decision whether to remove the potentially hazardous tree at issue did not involve ‘policy making or planning’ — at least, as those terms are used in the case law. The decision to place the tree where it was perhaps constituted planning, as might the decision to establish and fund the position of a tree warden to curate the trees. Those decisions involve determinations allocating government resources and assigning government responsibility. Imposing liability based upon those decisions might involve ‘usurping the power and responsibility of either the legislative or executive branch of government.’ … But that is not this case. Here the city owns the tree, and the tree threatened a neighbor’s property. The city has established a tree warden to maintain its trees. The law of negligence establishes a basic duty to exercise reasonable care to avoid harming the property of others. … Incurring that basic duty as the tree warden (or imposing it upon him) involved no ‘policy making or planning’ — it merely required the proper exercise of a defined function. …
“This case thus falls comfortably in line with prior cases that have held, on their particular facts, that the exception does not apply. … Here as well, in maintaining the city’s trees, the tree warden did not have the discretion to disregard the duty of reasonable care to the city’s neighbors.
“The one wrinkle in this case, which the city presses upon us, is that here the city ordinance governing the tree warden stated that the warden’s ‘discretion and sound judgment’ would ‘alone determine[] whether a tree shall be removed.’ … But whatever this ordinance may mean as to the allocation of responsibility within the city, it should be evident from the above discussion that the ordinance does not determine the legal question of the application of §10(b). In applying the discretionary function exception, the cases reach a conclusion, independently, whether the acts at issue constitute the kind of ‘policy making or planning’ that the Legislature intended to exempt. In addressing that question, various government ordinances, bylaws, policy directives, job descriptions and the like may well be relevant, but the public employer cannot render such government directives conclusive as to the application of §10(b) merely by describing particular functions as involving ‘discretion.’ Indeed, a contrary ruling would lead to an obvious means for government employers to avoid the intent and import of MTCA liability.”
Citation Insurance Company v. City of Chicopee (Lawyers Weekly No. 11-024-25) (9 pages) (Englander, J.) The case was heard by Tracy E. Duncan, J., on a motion for summary judgment. Mark J. Albano for the defendant; Diana D. O’Hara for the plaintiff (Docket No. 24-P-309) (April 9, 2025).
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