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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.