NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
23-P-111 Appeals Court
MATTHEW THEISZ vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another.1
No. 23-P-111.
Suffolk. November 8, 2023. - March 15, 2024.
Present: Rubin, Massing, & Desmond, JJ.
Massachusetts Tort Claims Act. Assault and Battery. Bus. Massachusetts Bay Transportation Authority. Public Employment. Labor, Public employment. Negligence, Employer, Vicarious liability. Immunity from suit.
Civil action commenced in the Superior Court Department on September 28, 2016.
The case was heard by Catherine H. Ham, J., on a motion for summary judgment.
David A. Mills & John J. Bonistalli for Massachusetts Bay Transportation Authority. Frank J. Federico, Jr. (Michael P. Holden also present) for the plaintiff.
MASSING, J. The plaintiff, Matthew Theisz, brought an
action under the Massachusetts Tort Claims Act (MTCA), G. L.
1 Derek Smith. 2
c. 258, alleging that the defendant public employer, the
Massachusetts Bay Transportation Authority (MBTA), was negligent
in hiring, training, supervising, and retaining its employee,
defendant Derek Smith, resulting in a violent incident in which
Smith, while on duty, assaulted and beat the plaintiff. The
MBTA filed a motion for summary judgment, arguing that it was
immune from suit under sections 10 (b) and 10 (j) of G. L.
c. 258, and that the record did not support a claim of negligent
hiring. A Superior Court judge denied the motion, and the MBTA
filed this interlocutory appeal.2 On appeal, the MBTA presses
only its claim of immunity under § 10 (j). We affirm the denial
of summary judgment, holding that § 10 (j) does not apply to a
claim of negligent hiring, training, supervision, and retention
of a public employee.
Background. The summary judgment materials, taken in the
light most favorable to the plaintiff, see Augat, Inc. v.
Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991); Jane J. v.
Commonwealth, 91 Mass. App. Ct. 325, 327 (2017), establish that
on March 3, 2015, Smith was assigned to the number 896 bus route
in the vicinity of Central Square in Lynn. The plaintiff, lost
in Lynn at night in blizzard conditions, saw a bus go by and
2 See Brum v. Dartmouth, 428 Mass. 684, 688 (1999) (denial of claim of immunity from suit immediately appealable); Baptista v. Bristol County Sheriff's Dep't, 100 Mass. App. Ct. 841, 860 (2022) (same). 3
attempted to wave it down to ask where he could find a bus to
Boston. When the bus passed him without stopping, the plaintiff
banged on the back door. The bus eventually stopped, and the
plaintiff banged on the front door before the driver, Smith,
opened it. After words were exchanged, Smith began yelling at
the plaintiff, then got out of his seat, approached the door,
and kicked snow from the bottom of the bus at the plaintiff.
The plaintiff called Smith an "asshole"; Smith lunged at him.
The plaintiff tried to run away, but Smith punched him in the
back of the head, causing the plaintiff to fall, and then Smith
kicked and stomped on the plaintiff's head. Bleeding from his
head, the plaintiff was transported to the hospital by
ambulance, where he was treated for a traumatic brain injury.
Smith, who had been hired as a part-time bus operator in
December 2010, about four years before the incident involving
the plaintiff, had a history of infractions based on unsafe
driving and complaints based on his hostile or insubordinate
interactions with the public and his supervisors. He was
promoted to a full-time position in March 2013. Then, in
October 2013, he attacked and beat a passenger, crashing the bus
he was driving into three parked cars. The MBTA suspended Smith
for one day. Smith was not disciplined after an incident in
February 2014, when a police officer stopped Smith's bus for a
traffic violation and then arrested Smith for refusing to 4
provide his license and registration, leaving the passengers on
his bus stranded. Thus, Smith was still a full-time operator,
in good standing, when he attacked the plaintiff.
The plaintiff filed a complaint in the Superior Court in
2016, asserting three tort claims against Smith and two claims
against the MBTA, one for negligent hiring, training, and
supervision, and one alleging the MBTA's vicarious liability for
Smith's actions. After some procedural skirmishing,3 in 2019,
the plaintiff amended his complaint against the MBTA to allege
negligent hiring, training, and supervision in count IV and
negligent retention in count V. In denying the MBTA's motion
for summary judgment, the motion judge treated the two counts as
a single claim for negligent hiring, training, supervision, and
retention, as do we.
Discussion. Public employers are exempt from liability for
the intentional torts of their employees, including assault and
battery. See G. L. c. 258, § 10 (c). This immunity, however,
3 The MBTA filed a motion for judgment on the pleadings, arguing that public employers are immune from vicarious liability claims based on intentional misconduct and that the plaintiff failed to make proper presentment of the negligent hiring, training, and supervision claim. A Superior Court judge allowed the MBTA's motion as to the vicarious liability claim and denied the motion as to the negligence claim. The MBTA appealed, and the Supreme Judicial Court, taking the case on its own initiative, affirmed the order of the Superior Court judge. See Theisz v. Massachusetts Bay Transp. Auth., 481 Mass. 1012 (2018). 5
does not extend to claims of negligent hiring, supervision, and
retention because such claims are based on the conduct of the
employer rather than the employee. See Dobos v. Driscoll, 404
Mass. 634, 653, cert. denied, 493 U.S. 850 (1989); Doe v.
Blandford, 402 Mass. 831, 836-838 (1988) (Blandford).
When an employer hires an employee who will interact with
members of the public, the employer has the duty to exercise
reasonable care in selecting employees who will not endanger the
public. See Foster v. The Loft, Inc., 26 Mass. App. Ct. 289,
290 (1988). "Once an employee is hired, '[e]mployers are
responsible for exercising reasonable care to ensure that their
employees do not cause foreseeable harm to a foreseeable class
of plaintiffs.'" Cottrell v. Laidley, 103 Mass. App. Ct. 483,
493 (2023), quoting Helfman v. Northeastern Univ., 485 Mass.
308, 326 (2020). This responsibility extends to public
employers. As relevant here, "where the supervisory officials
allegedly had, or should have had, knowledge of a public
employee's assaultive behavior, it is the supervisors' conduct,
rather than the employee's intentional conduct, that is the true
focus of the case." Dobos, 404 Mass. at 653.
The MBTA argues that it is immune from liability for the
plaintiff's negligence claim based on G. L. c. 258, § 10 (j).
Section 10 (j) exempts public employers from liability for "any
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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
23-P-111 Appeals Court
MATTHEW THEISZ vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another.1
No. 23-P-111.
Suffolk. November 8, 2023. - March 15, 2024.
Present: Rubin, Massing, & Desmond, JJ.
Massachusetts Tort Claims Act. Assault and Battery. Bus. Massachusetts Bay Transportation Authority. Public Employment. Labor, Public employment. Negligence, Employer, Vicarious liability. Immunity from suit.
Civil action commenced in the Superior Court Department on September 28, 2016.
The case was heard by Catherine H. Ham, J., on a motion for summary judgment.
David A. Mills & John J. Bonistalli for Massachusetts Bay Transportation Authority. Frank J. Federico, Jr. (Michael P. Holden also present) for the plaintiff.
MASSING, J. The plaintiff, Matthew Theisz, brought an
action under the Massachusetts Tort Claims Act (MTCA), G. L.
1 Derek Smith. 2
c. 258, alleging that the defendant public employer, the
Massachusetts Bay Transportation Authority (MBTA), was negligent
in hiring, training, supervising, and retaining its employee,
defendant Derek Smith, resulting in a violent incident in which
Smith, while on duty, assaulted and beat the plaintiff. The
MBTA filed a motion for summary judgment, arguing that it was
immune from suit under sections 10 (b) and 10 (j) of G. L.
c. 258, and that the record did not support a claim of negligent
hiring. A Superior Court judge denied the motion, and the MBTA
filed this interlocutory appeal.2 On appeal, the MBTA presses
only its claim of immunity under § 10 (j). We affirm the denial
of summary judgment, holding that § 10 (j) does not apply to a
claim of negligent hiring, training, supervision, and retention
of a public employee.
Background. The summary judgment materials, taken in the
light most favorable to the plaintiff, see Augat, Inc. v.
Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991); Jane J. v.
Commonwealth, 91 Mass. App. Ct. 325, 327 (2017), establish that
on March 3, 2015, Smith was assigned to the number 896 bus route
in the vicinity of Central Square in Lynn. The plaintiff, lost
in Lynn at night in blizzard conditions, saw a bus go by and
2 See Brum v. Dartmouth, 428 Mass. 684, 688 (1999) (denial of claim of immunity from suit immediately appealable); Baptista v. Bristol County Sheriff's Dep't, 100 Mass. App. Ct. 841, 860 (2022) (same). 3
attempted to wave it down to ask where he could find a bus to
Boston. When the bus passed him without stopping, the plaintiff
banged on the back door. The bus eventually stopped, and the
plaintiff banged on the front door before the driver, Smith,
opened it. After words were exchanged, Smith began yelling at
the plaintiff, then got out of his seat, approached the door,
and kicked snow from the bottom of the bus at the plaintiff.
The plaintiff called Smith an "asshole"; Smith lunged at him.
The plaintiff tried to run away, but Smith punched him in the
back of the head, causing the plaintiff to fall, and then Smith
kicked and stomped on the plaintiff's head. Bleeding from his
head, the plaintiff was transported to the hospital by
ambulance, where he was treated for a traumatic brain injury.
Smith, who had been hired as a part-time bus operator in
December 2010, about four years before the incident involving
the plaintiff, had a history of infractions based on unsafe
driving and complaints based on his hostile or insubordinate
interactions with the public and his supervisors. He was
promoted to a full-time position in March 2013. Then, in
October 2013, he attacked and beat a passenger, crashing the bus
he was driving into three parked cars. The MBTA suspended Smith
for one day. Smith was not disciplined after an incident in
February 2014, when a police officer stopped Smith's bus for a
traffic violation and then arrested Smith for refusing to 4
provide his license and registration, leaving the passengers on
his bus stranded. Thus, Smith was still a full-time operator,
in good standing, when he attacked the plaintiff.
The plaintiff filed a complaint in the Superior Court in
2016, asserting three tort claims against Smith and two claims
against the MBTA, one for negligent hiring, training, and
supervision, and one alleging the MBTA's vicarious liability for
Smith's actions. After some procedural skirmishing,3 in 2019,
the plaintiff amended his complaint against the MBTA to allege
negligent hiring, training, and supervision in count IV and
negligent retention in count V. In denying the MBTA's motion
for summary judgment, the motion judge treated the two counts as
a single claim for negligent hiring, training, supervision, and
retention, as do we.
Discussion. Public employers are exempt from liability for
the intentional torts of their employees, including assault and
battery. See G. L. c. 258, § 10 (c). This immunity, however,
3 The MBTA filed a motion for judgment on the pleadings, arguing that public employers are immune from vicarious liability claims based on intentional misconduct and that the plaintiff failed to make proper presentment of the negligent hiring, training, and supervision claim. A Superior Court judge allowed the MBTA's motion as to the vicarious liability claim and denied the motion as to the negligence claim. The MBTA appealed, and the Supreme Judicial Court, taking the case on its own initiative, affirmed the order of the Superior Court judge. See Theisz v. Massachusetts Bay Transp. Auth., 481 Mass. 1012 (2018). 5
does not extend to claims of negligent hiring, supervision, and
retention because such claims are based on the conduct of the
employer rather than the employee. See Dobos v. Driscoll, 404
Mass. 634, 653, cert. denied, 493 U.S. 850 (1989); Doe v.
Blandford, 402 Mass. 831, 836-838 (1988) (Blandford).
When an employer hires an employee who will interact with
members of the public, the employer has the duty to exercise
reasonable care in selecting employees who will not endanger the
public. See Foster v. The Loft, Inc., 26 Mass. App. Ct. 289,
290 (1988). "Once an employee is hired, '[e]mployers are
responsible for exercising reasonable care to ensure that their
employees do not cause foreseeable harm to a foreseeable class
of plaintiffs.'" Cottrell v. Laidley, 103 Mass. App. Ct. 483,
493 (2023), quoting Helfman v. Northeastern Univ., 485 Mass.
308, 326 (2020). This responsibility extends to public
employers. As relevant here, "where the supervisory officials
allegedly had, or should have had, knowledge of a public
employee's assaultive behavior, it is the supervisors' conduct,
rather than the employee's intentional conduct, that is the true
focus of the case." Dobos, 404 Mass. at 653.
The MBTA argues that it is immune from liability for the
plaintiff's negligence claim based on G. L. c. 258, § 10 (j).
Section 10 (j) exempts public employers from liability for "any
claim based on an act or failure to act to prevent or diminish 6
the harmful consequences of a condition or situation, including
the violent or tortious conduct of a third person, which is not
originally caused by the public employer or any other person
acting on behalf of the public employer." G. L. c. 258,
§ 10 (j). The MBTA argues that § 10 (j) applies because the
plaintiff's claim is based on the MBTA's failure to prevent
Smith's violent conduct. Keeping in mind that the plaintiff's
claim of negligent hiring, supervision, and retention is based
on the conduct of the MBTA and not on Smith's conduct, it is
evident that § 10 (j) is inapplicable.
The reference to "the violent or tortious conduct of a
third person" in § 10 (j) does not include conduct of public
employees. In cases in which § 10 (j) has been held to exempt
public employers from liability for failing to prevent the
violent conduct of a third party, the third party in question
has never been a public employee. Limiting our sample to the
§ 10 (j) cases cited by the MBTA in its principal brief, a
public school was not liable for injuries to a student caused by
another student pushing him down a flight of stairs, see Cormier
v. Lynn, 479 Mass. 35, 36, 41-42 (2018); the parole board was
not liable for the murder of a police officer by a former
prisoner who had been released on parole, see Kent v.
Commonwealth, 437 Mass. 312, 313, 317-320 (2002); a public
school was not liable for the death of a student caused by armed 7
assailants trespassing on school grounds, see Brum v. Dartmouth,
428 Mass. 684, 686-687, 696 (1999); State agencies were not
liable for the beating of one youth committed to a department of
youth services facility by another, see Baptiste v. Executive
Office of Health & Human Servs., 97 Mass. App. Ct. 110, 112-113,
119-121 (2020), cert. denied, 141 S. Ct. 2626 (2021); a public
school was not liable for injuries caused to one player on the
student field hockey team who was struck in the face by another
player's stick, see Stahr v. Lincoln Sudbury Regional High
School Dist., 93 Mass. App. Ct. 243, 245, 247 (2018); and a
State hospital was not liable where one patient raped another
patient who had been committed to the facility, see Jane J., 91
Mass. App. Ct. at 326-327, 330-332. Indeed, to interpret
"tortious conduct of a third person" in § 10 (j) to include
conduct of public employees would give public employers immunity
for claims that the MTCA was specifically enacted to include:
claims based on the "negligent or wrongful" -- that is, tortious
-- conduct of public employees. See G. L. c. 258, § 2 ("Public
employers shall be liable for injury or loss of property or
personal injury or death caused by the negligent or wrongful act
or omission of any public employee while acting within the scope
of his office or employment").
Nor do we accept the MBTA's argument that a claim of
negligent hiring, training, supervision, or retention is a claim 8
based on the "failure to act to prevent or diminish the harmful
consequences" of a public employee's conduct within the meaning
of § 10 (j). As previously noted, negligent hiring, training,
supervision, or retention claims are based on the negligent
conduct of the public employer rather than on the intentional
conduct of the public employee. See Dobos, 404 Mass. at 653.
If the MBTA knew or should have known of Smith's assaultive
behavior, it was the MBTA's promotion and retention of Smith,
not its failure to prevent his assault on the plaintiff, that
forms the basis of its liability. See Blandford, 402 Mass. at
838.
Although we have explained that "a third person" under
§ 10 (j) cannot be a public employee, the negligent promotion
and retention of Smith could also be viewed as an "original
cause" of the plaintiff's injury within the meaning of § 10 (j).
An act is an "original cause" if it "materially contributed to
creating the specific 'condition or situation' that resulted in
the harm." Kent, 437 Mass. at 319, quoting G. L. c. 258,
§ 10 (j). Examples "of the relationship between affirmative
acts and specific conditions or situations resulting in harm
that might fall within these parameters" include "the
recommendation of a convicted rapist for employment in a trailer
park that gave him access to keys of all of the units of
potential victims in the park" or "the hiring of a guidance 9
counselor who subsequently abused his students." Kent, supra at
319 n.9 (discussing Bonnie W. v. Commonwealth, 419 Mass. 122
[1994], and Blandford, 402 Mass. 831 [1988]). The MBTA's
continued employment of an undisciplined, volatile employee with
a track record of hostile and violent tendencies against riders
is an affirmative act of this nature.
Conclusion. We agree with the motion judge that the
plaintiff's claim for negligent hiring, training, supervision,
and retention is not barred by § 10 (j).4 The order denying the
MBTA's motion for summary judgment is affirmed.5
So ordered.
4 The MBTA also argues that the motion judge erred by denying its motion to strike certain materials in the summary judgment record that the plaintiff filed outside of the parameters of Superior Court Rule 9A. This claim, which could have been raised in the MBTA's principal brief but was raised for the first time in its reply brief, is not properly before us. See Commissioner of Revenue v. Plymouth Home Nat'l Bank, 394 Mass. 66, 67 n.3 (1985); Henderson v. Commissioners of Barnstable County, 49 Mass. App. Ct. 455, 459 (2000). Even if it were, we would hold that the motion judge's decision to consider these materials was well within her broad discretion. See Teamsters Local Union No. 404 v. Secretary of Admin. & Fin., 434 Mass. 651, 660–661 (2001); Malden Police Patrolman's Ass'n v. Malden, 92 Mass. App. Ct. 53, 56 (2017).
5 The plaintiff's request for double costs is denied.