Where a plaintiff was assaulted by a bus driver employed by the Massachusetts Bay Transportation Authority, a judge’s decision to deny the MBTA’s motion for summary judgment should be affirmed because the Massachusetts Tort Claims Act provides no protection to the MBTA for its negligence in hiring, promoting, retaining and supervising the bus driver, who had a known history of anger management issues that included a prior assault against a passenger.
“In this case, we address the question whether the Massachusetts Bay Transportation Authority (MBTA) is immune from liability under G.L.c. 258, §10(j) (§10[j]), of the Massachusetts Tort Claims Act (MTCA or statute), G.L.c. 258, for its negligence in hiring, promoting, retaining, and supervising its own employee — a bus driver, who had a known history of anger management issues that included a prior assault against a passenger — when the MBTA placed the driver in a public-facing position and the driver assaulted an MBTA customer, the plaintiff Matthew Theisz. We conclude that §10(j) provides no protection to the MBTA for its own misfeasance in these circumstances.
“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).
“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. Further concluding that the MBTA has provided no reason that compels us to revisit our §10(c) jurisprudence, we affirm the denial of summary judgment and remand the matter for further proceedings.”
Theisz v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 10-030-25) (26 pages) (Wendlandt, J.) The case was heard by Catherine H. Ham, J., on a motion for summary judgment. Jennifer M. Lee Sage (John J. Bonistalli also present) for the defendant; David H. Rich (Frank J. Federico Jr. also present) for the plaintiff; Jeffrey R. White, Marc A. Diller, Thomas R. Murphy, Kevin J. Powers, Lucas J. Newbill and Patricia J. Rezendes submitted a brief for Massachusetts Academy of Trial Attorneys and another, amici curiae; Maura E. O’Keefe submitted a brief for Massachusetts Municipal Lawyers Association, amicus curiae (Docket No. SJC 13624) (March 14, 2025).