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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.
                                                                   5


     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
                                                                   6


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.
