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SJC-11767

EDGAR RODRIGUEZ1 vs. CITY OF SOMERVILLE.

July 20, 2015.

Massachusetts Tort Claims Act. Moot Question. Practice, Civil, 

Moot case, Presentment of claim under Massachusetts Tort 

Claims Act, Interlocutory appeal. Governmental Immunity.

Municipal Corporations, Governmental immunity, Liability 

for tort. Notice, Claim under Massachusetts Tort Claims 

Act.

After the plaintiff, Edgar Rodriguez acting on behalf of 

his minor son Rodrigo, commenced this negligence action against 

the city of Somerville (city), the city filed a motion to 

dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 

(1974), claiming that the plaintiff failed to meet the 

presentment requirements set forth in the Massachusetts Tort 

Claims Act (Act). See G. L. c. 258, § 4. A judge in the 

Superior Court denied the motion, concluding that the letter 

satisfied the statutory requirements. The city appealed, and in 

doing so argued that the appeal, which was interlocutory, was 

proper pursuant to the doctrine of present execution. The 

Appeals Court concluded that the doctrine of present execution 

does not apply and dismissed the appeal. See Rodriguez v. 

Somerville, 86 Mass. App. Ct. 1 (2014). The case is now before 

this court on further appellate review.

Background. The essential background, as set forth in the 

Appeals Court's decision, is as follows:

"On April 14, 2011, Rodrigo Rodriguez, a second grade 

student at the Argenziano School in [the city], was injured 

 

1 As father and next friend of Rodrigo Rodriguez.
2

when a metal door frame fell off the front door of the 

school and struck him in the head. On May 11, 2011, an 

attorney representing the minor and his parent and next 

friend, Edgar Rodriguez, sent a letter to the mayor of [the 

city]."

Id. at 2. The plaintiff maintains that the letter was meant to 

satisfy the presentment requirements of G. L. c. 258, § 4, and 

in his complaint filed on March 29, 2013, alleged that "[t]imely 

and proper presentment was made to [the city] pursuant to [G. L. 

c. 258, § 4]."2

Discussion. 1. Mootness. We address, as an initial 

matter, the plaintiff's motion to dismiss the city's appeal to 

this court as moot. He argues that the presentment question is 

moot because the original pleadings in the case have been 

superseded by subsequent pleadings, filed while this appeal has 

been pending. Among other things, the plaintiff has filed an 

amended complaint; the city has, in turn, filed an amended 

answer; and additional parties on both sides have been joined. 

None of this, however, negates the underlying issue regarding 

whether the plaintiff made proper presentment to the city in the 

first instance, and whether, as the city contends, the appeal is 

proper pursuant to the doctrine of present execution. If the 

city is correct that presentment was improper and that the 

plaintiff's original complaint should have been dismissed, the 

city would no longer be a party to the case, regardless of any 

subsequent filings or proceedings in the trial court. The 

city's appeal, therefore, is not moot.

 

2 General Laws c. 258, § 4, provides in relevant part:

"A civil action shall not be instituted against a 

public employer on a claim for damages . . . unless the 

claimant shall have first presented his claim in writing to 

the executive officer of such public employer within two 

years after the date upon which the cause of action arose, 

and such claim shall have been finally denied by such 

executive officer in writing . . . . The failure of the 

executive officer to deny such claim in writing within six 

months after the date upon which it is presented, or the 

failure to reach final arbitration, settlement or 

compromise of such claim according to the provision of 

section five, shall be deemed a final denial of such 

claim."
3

2. Present execution. We next consider whether the appeal 

is proper under the doctrine of present execution. Generally, 

"an aggrieved litigant cannot as a matter of right pursue an 

immediate appeal from an interlocutory order unless a statute or 

rule authorizes it." Elles v. Zoning Bd. of Appeals of Quincy, 

450 Mass. 671, 673-674 (2008). Pursuant to the doctrine of 

present execution, however, "an interlocutory order is 

immediately appealable if it concerns an issue that is 

collateral to the basic controversy . . . and the ruling will 

interfere with rights in a way that cannot be remedied on appeal 

from the final judgment" (citations and quotations omitted). 

Shapiro v. Worcester, 464 Mass 261, 264 (2013). "Orders denying 

motions to dismiss based on immunity from suit fall into this 

limited class of cases" because they are "collateral to the 

rights asserted in the underlying action" and "the right to 

immunity from suit would be lost forever if such orders were not 

appealable until the close of litigation." Id. Accordingly, we 

have previously held that the doctrine of present execution 

applies in cases involving claims of immunity from suit pursuant 

to G. L. c. 258, § 10. See Kent v. Commonwealth, 437 Mass. 312, 

315-317 (2002) (denial of motion to dismiss based on immunity 

from suit under to G. L. c. 258, § 10 [j], immediately 

appealable pursuant to doctrine of present execution).

Here, the question is whether a claim of defective 

presentment pursuant to G. L. c. 258, § 4, is similarly 

immediately appealable. We conclude that it is, as we similarly 

concluded in Shapiro v. Worcester, 464 Mass at 264. In the 

Shapiro case we considered whether the doctrine of present 

execution authorized the city of Worcester to seek interlocutory 

review of the denial of its motion to dismiss as it "relate[d]

to the retroactivity of the presentment requirement." Id. at 

265. We held that it did because

"[a]s with the exceptions to the waiver of sovereign 

immunity, the presentment requirement is collateral to the 

substantive aspects of the Act, and the city's right to 

avoid harassing litigation would be lost forever if it were 

unable to appeal immediately the judges' orders that the 

presentment requirement does not apply 

retroactively . . . ."

Id. That the Shapiro case involved a question of retroactivity, 

and this case does not, is of no moment. The 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 
4

important public interest. See Daveiga v. Boston Pub. Health 

Comm'n, 449 Mass. 434, 435 n.2 (2007) (noting that appeal from 

denial of motion to dismiss predicated on defective presentment 

pursuant to G. L. c. 258, § 4, was before court pursuant to 

doctrine of present execution); Bellanti v. Boston Pub. Health 

Comm'n, 70 Mass. App. Ct. 401, 405-406 (2007) (noting that in 

Daveiga case, this court "accepted the view that the denial of a 

motion for summary judgment brought on the basis of defective 

presentment related to immunity under G. L. c. 258 and was 

immediately appealable under the doctrine of present 

execution"). Cf. Will v. Hallock, 546 U.S. 345, 352-353 (2006) 

(considering Federal law analogous to present execution and 

noting that "it is not mere avoidance of a trial, but avoidance 

of a trial that would imperil a substantial public interest, 

that counts when asking whether an order is 'effectively'

unreviewable if review is to be left until later").

3. Presentment. Having determined that the doctrine of 

present execution applies, and that the city's appeal is 

therefore properly before us, we turn to the underlying question

whether the plaintiff met the presentment requirements of G. L. 

c. 258, § 4.3

Pursuant to the statute, a claimant must, prior to 

instituting an action against a public employer on a claim for 

damages, present his claim in writing to the appropriate 

executive officer of the public employer. The purpose of the 

presentment requirement is to "ensure[] that the responsible 

 

3 The plaintiff argues that the city of Somerville (city)

waived the defense of defective presentment by failing to comply 

with the requirements of Mass. R. Civ. P. 9 (c), 365 Mass. 751 

(1974). Because proper presentment is a condition precedent, 

the rule requires the plaintiff to plead performance of the 

condition in his complaint. He did so. In response to the 

complaint, the city filed its motion to dismiss, clearly stating 

its claim of defective presentment -- that was the single basis 

for the motion -- and the defense was properly raised in the 

motion. See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). 

When the city subsequently filed its answer, it again raised 

defective presentment as an affirmative defense, albeit not as 

specifically or as particularly as it could have. Given the 

circumstances of the case, and the fact that the plaintiff was 

clearly on notice of the city's claim of defective presentment, 

we reject the plaintiff's claim of waiver. We note as well the 

city's assertion that the plaintiff raises the waiver argument 

for the first time on appeal.
5

public official receives notice of the claim so that that 

official can investigate to determine whether or not a claim is 

valid, preclude payment of inflated or nonmeritorious claims, 

settle valid claims expeditiously, and take steps to ensure that 

similar claims will not be brought in the future." Gilmore v. 

Commonwealth, 417 Mass. 718 (1994), quoting Lodge v. District 

Attorney for the Suffolk Dist., 21 Mass. App. Ct. 277, 283 

(1985). Although the plaintiff here presented a written letter 

to the appropriate official -- the mayor of the city -- the 

contents of the letter were insufficient to meet the 

requirements of the statute.

A letter purporting to constitute presentment does not have 

to be absolutely precise. See Martin v. Commonwealth, 53 Mass. 

App. Ct. 526, 529-530 (2002), and cases cited. The letter does, 

however, have to "'identify[] the legal basis of a plaintiff's 

claim' and must 'not [be] so obscure that educated public 

officials . . . find themselves baffled or misled with respect 

to [whether] a claim' is being asserted 'which constitutes a 

proper subject for suit' under G. L. c. 258." Id., quoting 

Gilmore v. Commonwealth, supra at 723. The plaintiff's letter 

does not meet these requirements.

Sent by counsel then representing the plaintiff, the letter

in this case did nothing more than state that the minor son was 

injured in an accident at a public school in the city and that 

counsel was seeking a copy of the school's report of the 

incident as well as reports of any other incidents at the same 

school. The letter also stated that any bill for photocopying 

or related fees should be sent to counsel's office. It appeared 

to be, in essence, a public records request, and reasonably 

could have been interpreted by the city as a precursor to a 

potential claim, where plaintiff's counsel was simply gathering 

information to determine whether the plaintiff might have a 

claim to press. It did not identify any legal basis for a claim 

against the city, much less actually "present" a claim that the 

city could reasonably be expected to investigate.

Under § 4, a public employer must respond to a claim by 

denying it, or by arbitrating, compromising, or settling it, 

within six months. See also G. L. c. 258, § 5 (detailing 

arbitration, compromise, and settlement of claims made under 

Act). The purpose of presentment is to give fair notice of a 

claim, and of its nature and circumstances. If a purported 

presentment does not fulfil that purpose, the public employer 

cannot meaningfully consider the claim or properly respond. The 

letter in this case did not serve the statutory purpose: it did 
6

not reasonably put the city on notice that the plaintiff was 

presently making a claim against it. Presentment was therefore 

deficient. On that basis, the city's motion to dismiss the 

plaintiff's complaint should have been allowed.

Conclusion. The plaintiff's motion to dismiss the appeal 

as moot is denied. The Superior Court judge's order denying the 

motion to dismiss is reversed.

So ordered.

Jason D. Grossfield, Assistant City Solicitor, for the 

defendant.

David M. Hass for the plaintiff.