Theisz v. Massachusetts Bay Transportation Authority

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SJC-12559

MATTHEW THEISZ vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

December 12, 2018.

Massachusetts Bay Transportation Authority. Massachusetts Tort

Claims Act. Governmental Immunity. Assault and Battery.

Negligence, Bus, Employer, Governmental immunity.

Practice, Civil, Presentment of claim under Massachusetts

Tort Claims Act, Interlocutory appeal, Affirmative defense,

Waiver.

The plaintiff, Matthew Theisz, commenced this action

against the Massachusetts Bay Transportation Authority (MBTA)

and Derek Smith, an MBTA bus driver, alleging that Smith

assaulted him. In the complaint, Theisz asserted two claims

against the MBTA: negligent hiring, training, and supervision;

and vicarious liability. The MBTA answered Theisz's complaint

and then subsequently filed a motion for judgment on the

pleadings, arguing that Theisz had failed to adequately present

the negligence claim as required by the Massachusetts Tort

Claims Act (act). See G. L. c. 258, § 4. The MBTA also claimed

that it was immune from liability for the vicarious liability

claim pursuant to G. L. c. 258, § 10 (c), because the claim

arises out of an intentional tort.

A judge in the Superior Court allowed the motion in part

and denied it in part. The judge agreed with the MBTA that it

was immune from the vicarious liability claim and allowed the

motion as to that claim. With respect to the negligence claim,

he agreed with the MBTA that the presentment letter was

inadequate, but he concluded that the MBTA had waived the

defense of defective presentment by failing to assert it with

the specificity and particularity required by Mass. R. Civ. P. 9

(c), 365 Mass. 751 (1974). He therefore denied the motion as to

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that claim. The MBTA appeals and, in doing so, argues that its

appeal, which is interlocutory, is proper pursuant to the

doctrine of present execution. We transferred the case to this

court on our own initiative.1

Background. In his complaint, Theisz alleged the

following. On March 3, 2015, at approximately 10:45 P.M., Smith

was operating an MBTA bus in Lynn. At a bus stop, Theisz asked

Smith for directions. Smith got off the bus and attacked

Theisz, causing serious and permanent injuries. In August 2015,

Theisz sent a presentment letter to the MBTA in which he claimed

that Smith had attacked and seriously injured him. The MBTA did

not respond. Theisz then filed his complaint, alleging therein

that he had provided the MBTA with notice of his claim pursuant

to the act. In its answer to the complaint, the MBTA generally

denied the allegation that Theisz had notified it of his claims.

The MBTA also stated, as an affirmative defense, that Theisz

"failed to make proper presentment of [his] claim pursuant to

G. L. c. 258, § 4."

In its motion for judgment on the pleadings, the MBTA

argued that Theisz's presentment letter was inadequate because

it failed to notify the MBTA of the negligence claim that Theisz

included in his complaint. Rather, the letter, in the MBTA's

view, merely described an incident that amounted to an

intentional act, liability for which the MBTA would be immune.

The judge agreed, concluding that the only allegation included

in the presentment letter was that of an intentional tort for

which the MBTA is immune from liability. See Tambolleo v. West

Boylston, 34 Mass. App. Ct. 526, 532 (1993) (presentment letter

inadequate where it only apprised defendant of claim arising out

of intentional tort). The judge went on to note, however, that

because presentment is a condition precedent to establishing

liability under the act, the MBTA needed to deny Theisz's

assertion of proper presentment "specifically and with

particularity," pursuant to Mass. R. Civ. P. 9 (c). He

concluded that the MBTA had failed to do this and therefore

waived its defense of defective presentment. See Martin v.

Commonwealth, 53 Mass. App. Ct. 526, 532-533 (2002) (assertion

of "boilerplate defenses" does not meet rule 9 [c] particularity

1 The appeal relates only to the negligence claim. The

judge's decision to allow the MBTA's motion as to the vicarious

liability claim is not a part of this appeal. The plaintiff

also asserted three claims against the driver, Derek Smith.

Those claims remain pending in the trial court and are similarly

not a part of this appeal.

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requirement). On this basis, he denied the MBTA's motion for

judgment on the pleadings as to the negligence claim.

Discussion. 1. Present execution. In considering the

MBTA's interlocutory appeal, we must first determine its

propriety. As previously noted, the MBTA claims that its appeal

is proper pursuant to the doctrine of present execution. In the

context of claims of immunity from suit, we have held that the

doctrine "applies in cases involving claims of immunity from

suit pursuant to G. L. c. 258, § 10," as well as claims of

defective presentment pursuant to G. L. c. 258, § 4. Rodriguez

v. Somerville, 472 Mass. 1008, 1009-1010 (2015). This case

represents the latter -- that is, a claim by the MBTA of

defective presentment.

In the Rodriguez case, the defendant, the city of

Somerville, filed a motion to dismiss the plaintiff's complaint

on the basis that the plaintiff had failed to meet the

presentment requirement pursuant to G. L. c. 258, § 4. See id.

at 1008. The motion was denied, and the city appealed, arguing

that the interlocutory appeal was proper pursuant to the

doctrine of present execution. See id. at 1010. In concluding

that the appeal was proper, we noted that "[t]he presentment

requirement protects government officials from having to face

unnecessary and potentially harassing litigation. Allowing an

appeal on the basis that presentment was deficient furthers that

important public interest." Id.

Although the posture of the MBTA's appeal in this case

differs somewhat from that of the Rodriguez case, the same

"important public interest" is at stake. In the Rodriguez case,

as we have noted, the city was appealing from a judge's ruling

that presentment was adequate. Here, the MBTA appeals from a

judge's ruling that it waived a particular affirmative defense,

rather than directly from any ruling on the adequacy of

presentment. The affirmative defense, however, relates directly

to the adequacy of presentment and, as such, to the issue of

immunity from suit. In both cases -- here as well as in the

Rodriguez case -- the issue at the root of whether the appeal is

subject to present execution, and whether it is therefore

properly before us, is the same.

Our conclusion that the MBTA's appeal is properly before us

should not be viewed as an expansion of the doctrine of present

execution, however, which we continue to recognize as a narrow

exception to the general, very well-settled rule that "absent

special authorization . . . an appellate court will reject

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attempts to obtain piecemeal review of trial rulings that do not

represent final disposition on the merits" (quotations and

citation omitted). Fabre v. Walton, 436 Mass. 517, 520-521

(2002). The purpose of the doctrine is to allow for "immediate

appeal of an interlocutory order . . . if the order will

interfere with rights in a way that cannot be remedied on appeal

from the final judgment." Id. at 521, and cases cited. Here,

the order denying the MBTA's motion for judgment on the

pleadings, which is rooted in a claim of immunity from suit,

fits within the doctrine.

2. Adequacy of pleading the affirmative defense. Having

determined that the MBTA's appeal is properly before us, we turn

now to the issue whether the MBTA sufficiently pleaded its

affirmative defense that presentment was inadequate.2 We agree

with the judge that it did not.

As the judge noted, proper presentment is a condition

precedent governed by Mass. R. Civ. P. 9 (c). "[P]resentment is

a condition precedent to bringing suit" pursuant to G. L.

c. 258, and a defendant must deny a plaintiff's averment of

proper presentment specifically and with particularity pursuant

to rule 9 (c) "or defective presentment is not an issue in the

case." Vasys v. Metropolitan Dist. Comm'n, 387 Mass. 51, 52

(1982). See Rodriguez, 472 Mass. at 1010 n.3.3 "A defendant who

does contest compliance with conditions precedent must pinpoint

the particular condition or conditions alleged to remain

unsatisfied; a general denial does not raise the issue"

(emphasis added). J.W. Smith & H.B. Zobel, Rules Practice § 9.7

(2d ed. 2006).

2 There is little question that presentment was inadequate,

where the letter failed to notify the MBTA of the negligence

claim that Theisz eventually asserted in his complaint. Theisz

himself does not appear to refute this.

3 In the Rodriguez case, the city first stated its claim of

defective presentment in its motion to dismiss. See Rodriguez

v. Somerville, 472 Mass. 1008, 1010 n.3 (2015). The city then

also raised it as an affirmative defense in its subsequent

answer. See id. Although the city did not raise defective

presentment in its answer "as specifically or as particularly as

it could have," we concluded that the answer was sufficient in

the circumstances, especially where the city had already clearly

raised the issue in its motion to dismiss. See id.

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Paragraph fifteen of Theisz's complaint states that he

"notified the Defendant of []his claim on August 3, 2015 by

means of a presentment letter sent to the executive officer of

the MBTA . . . within two (2) years of the date of the incident

described in Plaintiff's complaint." In its answer, the MBTA's

response to paragraph fifteen provides a general denial --

"[t]he defendant denies the allegations contained in this

paragraph" -- and its relevant affirmative defense asserts, in

its entirety, that "[p]laintiff's claim should be dismissed as

Plaintiff failed to make proper presentment of this claim

pursuant to [G. L. c.] 258, § 4." This is not the type of

specific and particular denial called for by the rule.

The MBTA argues that it did more than merely assert a

general denial or a "boilerplate" defense that the complaint

failed to state a claim. While it might be accurate to say that

the MBTA did something slightly more than merely state that the

complaint failed to state a claim, by stating in the most

generic way possible its position that Theisz failed to make

proper presentment, that description of its defense still falls

into the category of "boilerplate." The MBTA's specific and

particular position in its motion for judgment on the pleadings,

as it is now on appeal, was that presentment was inadequate

because Theisz's letter failed to notify the MBTA of the

negligence claim that Theisz eventually raised in his complaint.

That is something that the MBTA easily could have, and should

have, stated in its affirmative defense. Doing so would have

met the requirement of the rule that a denial of performance of

a condition precedent be made "specifically and with

particularity." Because the MBTA's affirmative defense, as

pleaded, fell short of the requirement of the rule, the adequacy

of presentment is "not an issue in the case." Vasys, 387 Mass.

at 52, citing Travers v. Travelers Ins. Co., 385 Mass. 811

(1982).

Finally, we note that, at oral argument, questions arose

regarding the timing of certain filings in the trial court and

whether the MBTA had intentionally "run out the clock," so to

speak, thus precluding, for example, an opportunity for Theisz

to remedy any defect in presentment. At the court's invitation,

the MBTA filed a postargument letter setting forth the relevant

timeline, and Theisz filed a response. The letters reflect,

essentially, what is clear from the trial court docket: Theisz

filed his complaint on September 28, 2016, and served it on the

MBTA on December 28, 2016; the MBTA filed its answer on February

10, 2017, and its motion for judgment on the pleadings on June

1, 2017. Although a finding that the MBTA failed to plead its

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affirmative defense specifically and with particularity pursuant

to rule 9 (c) does not require a finding of prejudice, we note

that the failure may in fact have prejudiced Theisz. If in its

answer the MBTA had pleaded its defense with the requisite

specificity and particularity, Theisz would still have had time

to provide proper presentment (by March 3, 2017, which would

have been two years from the date of the incident). In any

event, even if there had been no prejudice, the judge was

warranted in concluding that the MBTA had waived the affirmative

defense of inadequate presentment by failing to plead it with

the required specificity and particularity.

The order allowing in part and denying in part the MBTA's

motion for judgment on the pleadings is affirmed.

So ordered.

Roberto M. Braceras (Amy Bratskeir & Jennifer Minjung Lee

Sage also present) for the defendant.

David H. Rich (Benjamin J. Wish also present) for the

plaintiff.