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SJC-12781

             KATHERINE DRAKE   vs.   TOWN OF LEICESTER.



     Worcester.      December 6, 2019. - February 28, 2020.

 Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Kafker, JJ.


Massachusetts Tort Claims Act. Notice, Claim under
     Massachusetts Tort Claims Act, Timeliness. Practice,
     Civil, Presentment of claim under Massachusetts Tort Claims
     Act, Motion to dismiss. Negligence, Municipality, School.
     Municipal Corporations, Liability for tort, Notice to
     municipality. Mail.



     Civil action commenced in the Superior Court Department on
March 26, 2018.

    A motion to dismiss was heard by Rosemary Connolly, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


    Tom G. Vukmirovits for the plaintiff.
    Melina McTigue Garland for the defendant.


    LOWY, J.   On January 19, 2016, the plaintiff, Katherine

Drake, slipped and fell at Leicester High School while picking
                                                                   2


up her grandson during school hours.     She suffered multiple

injuries, including a fractured knee and wrist.1

     Before suing a public employer for negligence, claimants

must present their claim to the requisite public officer within

two years of their alleged injury.     See G. L. c. 258, § 4.

Exactly two years after the claim arose, on Friday, January 19,

2018, Drake mailed her presentment letter, via certified mail,

to the defendant, the town of Leicester (town).2    The town

received Drake's presentment letter on Monday, January 22, 2018.

The town denied liability for Drake's injuries on February 7,

2018, and Drake commenced this negligence action against the

town the following month.

     The town moved to dismiss the complaint under Mass. R. Civ.

P. 12 (b) (6), 365 Mass. 754 (1974), arguing that because Drake

failed to make presentment within the statutory deadline imposed

by G. L. c. 258, § 4, she could not state a claim upon which

relief could be granted.    After a hearing, the Superior Court

judge agreed and dismissed Drake's complaint due to her untimely

presentment.   Drake appealed, and we transferred this case on


     1 We recite the facts as alleged in the complaint, accepting
them as true and drawing all reasonable inferences in the
plaintiff's favor. See Edwards v. Commonwealth, 477 Mass. 254,
260 (2017).

     2 The town's offices happened to be closed on January 19,
2018, but Drake does not assert that her letter could have
arrived that same day.
                                                                      3


our own motion from the Appeals Court.     We conclude that Drake's

presentment was untimely, and we affirm.

       Discussion.   We review the denial of a motion to dismiss de

novo.    See Edwards v. Commonwealth, 477 Mass. 254, 260 (2017).

       The Massachusetts Tort Claims Act (act) makes public

employers liable for loss of property, personal injury, or death

caused by the negligence or wrongful conduct of public employees

acting within the scope of their employment.    See G. L. c. 258,

§ 2.    A claimant cannot institute a civil action against a

public employer for damages "unless the claimant shall have

first presented [her] claim in writing to the executive officer

of such public employer within two years after the date upon

which the cause of action arose."    G. L. c. 258, § 4.    Proper

presentment is accordingly a condition precedent to bringing

suit under the act, and failure to do so is fatal to the

plaintiff's complaint.    See Estate of Gavin v. Tewksbury State

Hosp., 468 Mass. 123, 128 (2014), quoting Vasys v. Metropolitan

Dist. Comm'n, 387 Mass. 51, 55 (1982).

       The parties do not dispute that Drake's presentment letter

was in writing and was presented to the proper executive

official.    The parties do dispute, however, whether Drake's

presentment was timely.    Therefore, the issue before us is what

act constitutes presentment under G. L. c. 258, § 4:      placing a
                                                                     4


presentment letter in the mail, as Drake argues,3 or receipt by

the proper executive officer, as the town argues.     We determine

that there is a third ground and conclude that presentment

occurs upon delivery to the office of the proper executive

officer.4

     We ordinarily begin with the plain language of the statute,

see Commonwealth v. Welch, 444 Mass. 80, 85 (2005); however, the

act does not define "presentment."   See G. L. c. 258, § 1.

"When a statute does not define its words[,] we give them their

usual and accepted meanings, as long as these meanings are

consistent with the statutory purpose" (citation omitted).

Estate of Gavin, 468 Mass. at 129.   "We derive the words' usual

and accepted meanings from sources presumably known to the

statute's enactors, such as their use in other legal contexts

and dictionary definitions" (citation omitted).     Id.

     The usual and accepted meaning of "presentment" is "[t]he

act of presenting or laying before a court or other tribunal a

formal statement about a matter to be dealt with legally."




     3 Drake acknowledges that her claim arose on January 19,
2016, the date of her fall, and that thus presentment must have
occurred by January 19, 2018.

     4 We note, however, that although presentment occurs upon
delivery to the office of the proper executive officer, the
presentment letter must still be addressed to the proper
executive officer. Compare Lopez v. Lynn Hous. Auth., 440 Mass.
1029, 1030-1031 (2003).
                                                                    5


Black's Law Dictionary 1433 (11th ed. 2019).   See Webster's

Third New International Dictionary 1793 (1993) (defining

"present" as "to lay or put before a person for acceptance").

To lay or to put an item, such as a presentment letter, before

another, the receiving person or entity must have the

opportunity to observe the item.   Placing the presentment letter

in the mail, certified or otherwise, does not constitute proper

presentment under G. L. c. 258, § 4, as that act alone would not

provide the proper executive officer the opportunity to observe

the letter.5

     Defining the act's presentment requirement as occurring

upon delivery to the office of the proper executive officer also

finds support in the Legislature's intent.   The Legislature

intended the act (1) "to allow plaintiffs with valid causes of

action to recover in negligence against governmental entities;"

and (2) "to preserve the stability and effectiveness of

government by providing a mechanism which will result in payment

of only those claims against governmental entities which are

valid, in amounts which are reasonable and not inflated.".




     5 The Federal Tort Claims Act has a similar presentment
requirement, see 28 U.S.C. §§ 2401(b), 2675, and similarly does
not articulate what act constitutes presentment, see 28 U.S.C.
§ 2671. However, the regulation promulgated pursuant to the
statute does. See 28 C.F.R. § 14.2(a) ("a claim shall be deemed
to have been presented when a Federal agency receives from a
claimant . . . written notification of an incident").
                                                                    6


Estate of Gavin, 468 Mass. at 131, quoting Vasys, 387 Mass. at

57.6

       The presentment requirement furthers the act's second

purpose by providing the Commonwealth and other public employers

with "the opportunity to investigate and settle claims and to

prevent future claims through notice to executive officers.".

Estate of Gavin, 468 Mass. at 132, quoting Shapiro v. Worcester,

464 Mass. 261, 268 (2013).    We have, therefore, previously

required that claimants strictly comply with the presentment

requirement contained in G. L. c. 258, § 4.    See Shapiro, supra

at 267; Richardson v. Dailey, 424 Mass. 258, 261 (1997); Weaver

v. Commonwealth, 387 Mass. 43, 47 (1982); Pruner v. Clerk of the

Superior Court, 382 Mass. 309, 315-316 (1981) (plaintiff failed

to comply with presentment requirement within two-year period);

Martin v. Commonwealth, 53 Mass. App. Ct. 526, 528-529 (2002)

(strict compliance focused on "proper party noticed" and

"timeliness").

       The definition of the act's presentment requirement as

occurring upon delivery to the office of the proper executive

officer aligns with this purpose of the presentment requirement




       When considering these dual
       6                             purposes, we seek to strike an
"appropriate balance . . . between   the public interest in
fairness to injured persons and in   promoting effective
government." Estate of Gavin, 468    Mass. at 131, quoting Vasys,
387 Mass. at 57.
                                                                    7


by ensuring that the government has adequate time to investigate

and respond to such claims.7   See Shapiro, 464 Mass. at 268;

Lopez v. Lynn Hous Auth., 440 Mass. 1029, 1031 (2003) ("it is

undisputed that the claim was ultimately received in writing and

acted on by the appropriate executive officer," and thus, "the

purposes underlying the presentment requirement have been

satisfied").

     Drake nonetheless argues for a liberal construction of the

presentment requirement.   While we have done so in some past

cases, we have confined our conclusions to the unique

circumstances of those particular cases.    Importantly, in those

cases, we concluded that the purposes underlying the presentment

requirement were satisfied:    the proper executive officer was

notified of the claims within the statutory deadline.    See

Estate of Gavin, 468 Mass. at 125 n.3, 135 (interpreting

"claimant" to include decedent's estate, "in the circumstances

of the present case"); Lopez, 440 Mass. at 1030-1031 ("in the

unique circumstances of this case, it is apparent that the

purpose of the presentment requirement has been fulfilled" even


     7 We also note that this definition does not run afoul of
the act's other purpose of allowing injured parties with valid
claims to recover from the government, as the definition does
not decrease the statutory time frame within which those injured
persons must make their claims known to the proper executive
officer. See Estate of Gavin, 468 Mass. at 131. Indeed, the
injured party has a full two years to do so. See G. L. c. 258,
§ 4.
                                                                   8


though claimant did not address presentment letter to proper

executive officer); Vasys, 387 Mass. at 52-53, 57 ("In the

unusual circumstances of this case, we believe that balance is

best struck by our holding that the defendant here is barred

from raising the issue of defective presentment . . .").

    The straightforward circumstances of this case are not

unique.   Drake mailed her presentment letter on the last day of

the statutory period, January 19, 2018.   Drake does not contend

that her mailed letter could have arrived on that same day, nor

does she contest that the office of the proper executive officer

received the presentment letter on January 22, 2018 -- a full

two years and three days after she was injured.   Given our

conclusion that presentment occurs upon delivery to the office

of the proper executive officer, we conclude that Drake's

presentment was untimely and affirm the motion judge's dismissal

of her complaint.

                                    So ordered.
