Citation Insurance Company v. City of Chicopee

APPEALS COURT

CITATION INSURANCE COMPANY[1] vs. CITY OF CHICOPEE

Docket:

24-P-309

Dates:

December 9, 2024 – April 9, 2025

Present:

Henry, Desmond, & Englander, JJ.

County:

Hampden

Keywords:

Governmental Immunity. Municipal Corporations, Governmental immunity, Liability for tort. Negligence, Municipality, Governmental immunity. Massachusetts Tort Claims Act. Practice, Civil, Summary judgment.

Civil action commenced in the Superior

Court Department on July 2, 2021.

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.

ENGLANDER, J. 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. See Shapiro v. Worcester, 464

Mass. 261, 265 (2013) (municipality may immediately appeal from order denying

motion for summary judgment based upon exception to liability under MTCA). 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 city

cites in particular to a city ordinance, § 257-8, which provides that

"[t]he discretion and sound judgment of the Tree Warden alone determines

whether a tree shall be removed."

City of Chicopee Ordinance § 257-8 (1998) (§ 257-8). 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." See Harry Stoller & Co. v. Lowell, 412

Mass. 139, 141 (1992) (Stoller). 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.

Background. The tree in question fell on Hebert's home

during a windstorm on February 25, 2019.

It caused over $40,000 in damages, which Citation paid pursuant to

Hebert's homeowner's policy. The tree

had been located on city property, and it was subject to the jurisdiction of

the city tree warden. Relevant here, the

predecessor owner of Hebert's property had sent a certified letter to the city,

in 2013, notifying the city of the owner's belief that the tree was in poor

condition and posed a danger to the home.

Hebert, on March 1, 2019, sent a letter to

the mayor of Chicopee, notifying the city that the tree fell on her property,

causing damage, and further stating that "the damage could have been

prevented by the exercise of reasonable care had the [c]ity acted diligently to

remedy or guard against this unsafe condition." The plaintiff Citation filed this lawsuit in

July of 2021. The complaint alleged

negligence in the maintenance of the tree.

Prior to filing, Citation, on June 20, 2019 and again on October 15,

2019, also sent letters to the mayor of Chicopee, notifying the city of the

damages sustained from the tree.

In due course the city filed a motion for

summary judgment, which a Superior Court judge denied. This interlocutory appeal followed.

Discussion. The MTCA establishes that public employers

generally are liable for the negligent acts of public employees, "in the

same manner and to the same extent as a private individual under like

circumstances." G. L.

c. 258, § 2. There are several

statutory exceptions to MTCA liability, however, and here we deal with

§ 10 (b), which exempts "any claim based upon the exercise or

performance or the failure to exercise or perform a discretionary

function."

The meaning and scope of this discretionary

function exception has been addressed many times in our courts. The principles are well established, although

the cases do not always trace a straight line on their facts. The case law establishes a two-step analysis,

under which the second "more difficult" step requires a court to

determine whether the government conduct that forms the basis for the

plaintiff's claim involves "policy making or planning." Stoller, 412 Mass. at 141 . As the Supreme Judicial Court explained in

Stoller:

"The second

and far more difficult step is to determine whether the discretion that the

actor had is that kind of discretion for which § 10 (b) provides

immunity from liability. Almost all

conduct involves some discretion, if only concerning minor details. If allegedly tortious conduct were to be

immunized from causing liability simply because there was some element of

discretion in that conduct, the discretionary function exception would go a

long way toward restoring the governmental immunity that G. L. c. 258

was designed to eliminate. . . . [H]owever, the discretionary

function exception, both under our [MTCA] and under the Federal Tort Claims

Act, is far narrower, providing immunity only for discretionary conduct that

involves policy making or planning.

Because of the limitation of the exception to conduct that is policy

making or planning, the words 'discretionary function' are somewhat misleading

as a name of the concept."

(Citation omitted.)

Id.

In short, the discretionary function

exception does not apply to all government conduct that involves discretion,

but rather to a "narrow[]" subset of such conduct. Stoller, 412 Mass at 141. The question whether the exception applies

has been treated as a question of law, in light of the particular facts of the

case and the plaintiff's articulated theory of liability. See Alter v. Newton, 35 Mass. App. Ct. 142,

147-148 (1993). In past cases, the

discretionary function exception twice has been held not to apply to theories

of negligent maintenance of a public parking lot, see Greenwood v. Easton, 444

Mass. 467, 472-473 (2005); Doherty v. Belmont, 396 Mass. 271, 276 (1985), as

well as to a theory of negligent medical treatment in a hospital emergency

room, see Kelley v. Rossi, 395 Mass. 659 , 664-665 & n.6 (1985).

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.[2] 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." Stoller, 412 Mass.

at 142 . See Barnett v. Lynn, 433 Mass.

662, 665 (2001). 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. See Remy v. MacDonald, 440 Mass. 675, 677

(2004). 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. See Greenwood, 444 Mass. at 473 .

This case thus falls comfortably in line

with prior cases that have held, on their particular facts, that the exception

does not apply. Thus, in Greenwood, the

plaintiff sued the town for negligence, after her daughter was hit and injured

by a telephone pole that the town was using as a barrier in its parking

lot. Greenwood, 444 Mass. at 467-468 . The plaintiff's theory was that the town had

negligently maintained the parking lot by not securing the telephone poles

properly. Id. at 472 . The court held that while the town's decision

to use telephone poles as parking barriers was a discretionary function, the

installation of the poles was not. Id. at

473 . Similarly, in Kelley, the plaintiff

sued an emergency room doctor for negligent treatment; in a footnote, the court

rejected the argument that the doctor was engaged in a discretionary function,

as "[t]he doctor was governed by the standard of accepted medical

practice, an ascertainable guide to proper conduct." Kelley, 395 Mass. at 660 , 665 n.6. 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." § 257-8. 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.[3]

The order denying the motion for summary

judgment is affirmed.

So ordered.

footnotes

[1] As subrogee

of Mary F. Hebert.

[2] There is no

merit to the city's claim that the plaintiff failed to make a proper

presentment under G. L. c. 258, § 4. The plaintiff's letter of March 1, 2019, was

sent to a proper city official, the mayor; it identified the date of injury,

the nature of what occurred, and the nature of the claim -- failure to exercise

reasonable care. Nothing more was

required. See G. L. c. 258,

§ 4; Murray v. Hudson, 472 Mass. 376, 384 (2015) (presentment adequate if

"it sets forth sufficient facts from which public officials reasonably can

discern the legal basis of the claim, and determine whether it states a claim

for which damages may be recovered under the [MTCA]").

[3] The city also

argues that it was entitled to summary judgment because Citation had not put

forth any admissible evidence of negligence.

This issue is not collateral but rather goes to the merits of the

plaintiff's claim, and is not properly before us under the doctrine of present

execution. See Shapiro, 464 Mass. at

265 . We note, however, that there is an

affidavit in the record from the prior owner that avers that in 2013 she sent a

certified letter to the city notifying it of her concerns with the tree and its

condition.