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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

 

6 When considering these dual 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.