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Massachusetts Appeals Court Reverses Trial Court Opinion in Favor of Passenger Injured by a City Bus

When filing a lawsuit in Massachusetts’ civil court system, the alleged at-fault party must be notified properly. When the at-fault party is an employee of a company, notifying the right person can get complicated. A recent Appeals Court case reviews the notice requirement under the Massachusetts Tort Claims Act, G.L. c. 258. In this case, a woman was injured by a city bus as she was entering another vehicle. She filed suit two years after the accident, and the Massachusetts Bay Transportation Authority (MBTA) answered, raising the affirmative defense that she did not properly give notice under G.L. c. 258, § 4.  Busy Street The trial court overruled the second motion by the MBTA to grant summary judgment in its favor, and the MBTA appealed.

G.L. c. 258, § 4 requires that notice of any tort claim against a public employer be presented to its executive officer within two years after the cause of action arises. Under the MBTA, this would have been the general manager and the rail and transit administrator. In this case, the injured woman sent notice of her claim to the “Claims Department” but not to the executive officer. The MBTA appealed, arguing that the notice did not comply with G.L. c. 258, § 4. The trial judge disagreed. The motion was overruled, the judge determining that there was notice.

Both parties agreed on the occurrence of several events. They agreed that the injured person’s attorney at the time sent out timely notice of the claim and that the injured person didn’t attempt to personally communicate during the two-year period after the accident and didn’t know what other communication may have occurred between her attorney and the MBTA during this time. The MBTA agreed that it had made a settlement offer to the injured person and other plaintiffs and that the other plaintiffs accepted their offers and settled their cases. The court determined that the MBTA had actual notice, based on the actions of the claims department. The court ruled that it fell under the “actual notice” exception, which overlooks a deficiency when there’s evidence the executive officer did know, thus fulfilling the presentment requirement.

The Appeals Court disagreed. The court looked at prior case law and determined that the exception’s application is very narrow. The court stated that notice to the executive officer cannot be inferred or imputed from the fact that others who are responsible for handling the claim were in contact with the injured person. In a separate but similar case, 65 Mass. App. Ct. 104 (2005), notice was incorrectly given to a sheriff’s fiscal officer instead of the sheriff. As in the case at hand, an offer was made by the sheriff’s counsel to settle. When the offer was rejected, the sheriff moved to dismiss for a failure to make a proper presentment. The “actual notice exception” argument was also rejected by the Appeals Court, which determined that the statute is “strict” and that it is irrelevant that the defendant did not suffer any kind of prejudice.

This lawsuit reveals the great importance of having experienced Massachusetts personal injury counsel at your side. The personal injury attorneys at Karsner & Meehan have the knowledge you need to pursue the damages you need and deserve. Call our office today at 508-822-6600 for a free, confidential consultation.

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