The Massachusetts Bay Transportation Authority could be sued by a customer who was assaulted by a bus driver, the Supreme Judicial Court has ruled.
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.”
In a March 14 decision, the court concluded that it was not.
“We conclude that §10(j) provides no protection to the MBTA for its own misfeasance in these circumstances,” Justice Dalila Argaez Wendlandt wrote for the SJC.
“Subject to delineated exceptions not relevant here, §10(j) generally provides public employers immunity from liability for a plaintiff’s harm directly caused by the tortious conduct of a third person or by a private or naturally occurring risk. More specifically, the provision protects a public employer from being held to account for the conduct of public employees who negligently fail to act, or negligently act, to prevent such private risks unless public employees affirmatively engaged in conduct that materially contributed to the condition or situation resulting in the plaintiff’s harm. The provision has no application where, as alleged here, a plaintiff has been directly injured by an on-duty public employee (as opposed to by a third person or by a private or naturally occurring risk),” Wendlandt wrote.
“To be sure, under the MTCA, the Legislature has protected public employers against being held vicariously liable for a public employee’s intentional assault. See G.L.c. 258, §10(c) (§10[c]). Nonetheless, we have previously determined that, consistent with §10(c), the public employer can be liable under the MTCA where it commits a breach of the ordinary duty to exercise reasonable care in the selection of an employee to interact with the public by choosing to place an employee in that position despite knowing of the employee’s untreated, assaultive behaviors. We now conclude that §10(j) also provides no safe harbor in such circumstances,” she wrote.
The 26-page decision is Theisz v. Massachusetts Bay Transportation Authority, Lawyers Weekly No. 10-030-25.
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