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SJC-12559

MATTHEW THEISZ vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

December 12, 2018.

Massachusetts Bay Transportation Authority. Massachusetts Tort 

Claims Act. Governmental Immunity. Assault and Battery. 

Negligence, Bus, Employer, Governmental immunity.

Practice, Civil, Presentment of claim under Massachusetts 

Tort Claims Act, Interlocutory appeal, Affirmative defense, 

Waiver.

The plaintiff, Matthew Theisz, commenced this action 

against the Massachusetts Bay Transportation Authority (MBTA) 

and Derek Smith, an MBTA bus driver, alleging that Smith 

assaulted him. In the complaint, Theisz asserted two claims 

against the MBTA: negligent hiring, training, and supervision; 

and vicarious liability. The MBTA answered Theisz's complaint 

and then subsequently filed a motion for judgment on the 

pleadings, arguing that Theisz had failed to adequately present 

the negligence claim as required by the Massachusetts Tort 

Claims Act (act). See G. L. c. 258, § 4. The MBTA also claimed 

that it was immune from liability for the vicarious liability 

claim pursuant to G. L. c. 258, § 10 (c), because the claim 

arises out of an intentional tort.

A judge in the Superior Court allowed the motion in part 

and denied it in part. The judge agreed with the MBTA that it 

was immune from the vicarious liability claim and allowed the

motion as to that claim. With respect to the negligence claim, 

he agreed with the MBTA that the presentment letter was 

inadequate, but he concluded that the MBTA had waived the 

defense of defective presentment by failing to assert it with 

the specificity and particularity required by Mass. R. Civ. P. 9 

(c), 365 Mass. 751 (1974). He therefore denied the motion as to 
2

that claim. The MBTA appeals and, in doing so, argues that its 

appeal, which is interlocutory, is proper pursuant to the 

doctrine of present execution. We transferred the case to this 

court on our own initiative.1

Background. In his complaint, Theisz alleged the 

following. On March 3, 2015, at approximately 10:45 P.M., Smith 

was operating an MBTA bus in Lynn. At a bus stop, Theisz asked 

Smith for directions. Smith got off the bus and attacked 

Theisz, causing serious and permanent injuries. In August 2015, 

Theisz sent a presentment letter to the MBTA in which he claimed 

that Smith had attacked and seriously injured him. The MBTA did 

not respond. Theisz then filed his complaint, alleging therein 

that he had provided the MBTA with notice of his claim pursuant 

to the act. In its answer to the complaint, the MBTA generally 

denied the allegation that Theisz had notified it of his claims. 

The MBTA also stated, as an affirmative defense, that Theisz 

"failed to make proper presentment of [his] claim pursuant to 

G. L. c. 258, § 4."

In its motion for judgment on the pleadings, the MBTA 

argued that Theisz's presentment letter was inadequate because 

it failed to notify the MBTA of the negligence claim that Theisz 

included in his complaint. Rather, the letter, in the MBTA's 

view, merely described an incident that amounted to an 

intentional act, liability for which the MBTA would be immune. 

The judge agreed, concluding that the only allegation included 

in the presentment letter was that of an intentional tort for 

which the MBTA is immune from liability. See Tambolleo v. West 

Boylston, 34 Mass. App. Ct. 526, 532 (1993) (presentment letter 

inadequate where it only apprised defendant of claim arising out 

of intentional tort). The judge went on to note, however, that 

because presentment is a condition precedent to establishing 

liability under the act, the MBTA needed to deny Theisz's 

assertion of proper presentment "specifically and with 

particularity," pursuant to Mass. R. Civ. P. 9 (c). He 

concluded that the MBTA had failed to do this and therefore

waived its defense of defective presentment. See Martin v. 

Commonwealth, 53 Mass. App. Ct. 526, 532-533 (2002) (assertion 

of "boilerplate defenses" does not meet rule 9 [c] particularity 

 

1 The appeal relates only to the negligence claim. The 

judge's decision to allow the MBTA's motion as to the vicarious 

liability claim is not a part of this appeal. The plaintiff 

also asserted three claims against the driver, Derek Smith. 

Those claims remain pending in the trial court and are similarly 

not a part of this appeal.
3

requirement). On this basis, he denied the MBTA's motion for 

judgment on the pleadings as to the negligence claim.

Discussion. 1. Present execution. In considering the 

MBTA's interlocutory appeal, we must first determine its 

propriety. As previously noted, the MBTA claims that its appeal 

is proper pursuant to the doctrine of present execution. In the 

context of claims of immunity from suit, we have held that the 

doctrine "applies in cases involving claims of immunity from 

suit pursuant to G. L. c. 258, § 10," as well as claims of 

defective presentment pursuant to G. L. c. 258, § 4. Rodriguez

v. Somerville, 472 Mass. 1008, 1009-1010 (2015). This case 

represents the latter -- that is, a claim by the MBTA of 

defective presentment.

In the Rodriguez case, the defendant, the city of 

Somerville, filed a motion to dismiss the plaintiff's complaint 

on the basis that the plaintiff had failed to meet the 

presentment requirement pursuant to G. L. c. 258, § 4. See id. 

at 1008. The motion was denied, and the city appealed, arguing

that the interlocutory appeal was proper pursuant to the 

doctrine of present execution. See id. at 1010. In concluding 

that the appeal was proper, we noted that "[t]he 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 

important public interest." Id.

Although the posture of the MBTA's appeal in this case 

differs somewhat from that of the Rodriguez case, the same 

"important public interest" is at stake. In the Rodriguez case,

as we have noted, the city was appealing from a judge's ruling 

that presentment was adequate. Here, the MBTA appeals from a 

judge's ruling that it waived a particular affirmative defense, 

rather than directly from any ruling on the adequacy of 

presentment. The affirmative defense, however, relates directly 

to the adequacy of presentment and, as such, to the issue of 

immunity from suit. In both cases -- here as well as in the 

Rodriguez case -- the issue at the root of whether the appeal is 

subject to present execution, and whether it is therefore 

properly before us, is the same.

Our conclusion that the MBTA's appeal is properly before us

should not be viewed as an expansion of the doctrine of present 

execution, however, which we continue to recognize as a narrow 

exception to the general, very well-settled rule that "absent 

special authorization . . . an appellate court will reject 
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attempts to obtain piecemeal review of trial rulings that do not 

represent final disposition on the merits" (quotations and 

citation omitted). Fabre v. Walton, 436 Mass. 517, 520-521 

(2002). The purpose of the doctrine is to allow for "immediate 

appeal of an interlocutory order . . . if the order will 

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

from the final judgment." Id. at 521, and cases cited. Here, 

the order denying the MBTA's motion for judgment on the 

pleadings, which is rooted in a claim of immunity from suit, 

fits within the doctrine.

2. Adequacy of pleading the affirmative defense. Having 

determined that the MBTA's appeal is properly before us, we turn 

now to the issue whether the MBTA sufficiently pleaded its 

affirmative defense that presentment was inadequate.2 We agree 

with the judge that it did not.

As the judge noted, proper presentment is a condition 

precedent governed by Mass. R. Civ. P. 9 (c). "[P]resentment is 

a condition precedent to bringing suit" pursuant to G. L. 

c. 258, and a defendant must deny a plaintiff's averment of 

proper presentment specifically and with particularity pursuant 

to rule 9 (c) "or defective presentment is not an issue in the 

case." Vasys v. Metropolitan Dist. Comm'n, 387 Mass. 51, 52 

(1982). See Rodriguez, 472 Mass. at 1010 n.3.3 "A defendant who 

does contest compliance with conditions precedent must pinpoint 

the particular condition or conditions alleged to remain 

unsatisfied; a general denial does not raise the issue"

(emphasis added). J.W. Smith & H.B. Zobel, Rules Practice § 9.7 

(2d ed. 2006).

 

2 There is little question that presentment was inadequate, 

where the letter failed to notify the MBTA of the negligence 

claim that Theisz eventually asserted in his complaint. Theisz 

himself does not appear to refute this.

3 In the Rodriguez case, the city first stated its claim of 

defective presentment in its motion to dismiss. See Rodriguez

v. Somerville, 472 Mass. 1008, 1010 n.3 (2015). The city then 

also raised it as an affirmative defense in its subsequent 

answer. See id. Although the city did not raise defective 

presentment in its answer "as specifically or as particularly as 

it could have," we concluded that the answer was sufficient in 

the circumstances, especially where the city had already clearly 

raised the issue in its motion to dismiss. See id.
5

Paragraph fifteen of Theisz's complaint states that he 

"notified the Defendant of []his claim on August 3, 2015 by 

means of a presentment letter sent to the executive officer of 

the MBTA . . . within two (2) years of the date of the incident 

described in Plaintiff's complaint." In its answer, the MBTA's 

response to paragraph fifteen provides a general denial --

"[t]he defendant denies the allegations contained in this 

paragraph" -- and its relevant affirmative defense asserts, in 

its entirety, that "[p]laintiff's claim should be dismissed as 

Plaintiff failed to make proper presentment of this claim 

pursuant to [G. L. c.] 258, § 4." This is not the type of 

specific and particular denial called for by the rule.

The MBTA argues that it did more than merely assert a 

general denial or a "boilerplate" defense that the complaint 

failed to state a claim. While it might be accurate to say that 

the MBTA did something slightly more than merely state that the 

complaint failed to state a claim, by stating in the most 

generic way possible its position that Theisz failed to make 

proper presentment, that description of its defense still falls 

into the category of "boilerplate." The MBTA's specific and 

particular position in its motion for judgment on the pleadings, 

as it is now on appeal, was that presentment was inadequate 

because Theisz's letter failed to notify the MBTA of the 

negligence claim that Theisz eventually raised in his complaint. 

That is something that the MBTA easily could have, and should 

have, stated in its affirmative defense. Doing so would have 

met the requirement of the rule that a denial of performance of 

a condition precedent be made "specifically and with 

particularity." Because the MBTA's affirmative defense, as 

pleaded, fell short of the requirement of the rule, the adequacy 

of presentment is "not an issue in the case." Vasys, 387 Mass. 

at 52, citing Travers v. Travelers Ins. Co., 385 Mass. 811 

(1982).

Finally, we note that, at oral argument, questions arose 

regarding the timing of certain filings in the trial court and 

whether the MBTA had intentionally "run out the clock," so to 

speak, thus precluding, for example, an opportunity for Theisz 

to remedy any defect in presentment. At the court's invitation, 

the MBTA filed a postargument letter setting forth the relevant 

timeline, and Theisz filed a response. The letters reflect, 

essentially, what is clear from the trial court docket: Theisz 

filed his complaint on September 28, 2016, and served it on the 

MBTA on December 28, 2016; the MBTA filed its answer on February 

10, 2017, and its motion for judgment on the pleadings on June 

1, 2017. Although a finding that the MBTA failed to plead its 
6

affirmative defense specifically and with particularity pursuant 

to rule 9 (c) does not require a finding of prejudice, we note 

that the failure may in fact have prejudiced Theisz. If in its 

answer the MBTA had pleaded its defense with the requisite 

specificity and particularity, Theisz would still have had time 

to provide proper presentment (by March 3, 2017, which would 

have been two years from the date of the incident). In any 

event, even if there had been no prejudice, the judge was 

warranted in concluding that the MBTA had waived the affirmative 

defense of inadequate presentment by failing to plead it with 

the required specificity and particularity.

The order allowing in part and denying in part the MBTA's 

motion for judgment on the pleadings is affirmed.

So ordered.

Roberto M. Braceras (Amy Bratskeir & Jennifer Minjung Lee 

Sage also present) for the defendant.

David H. Rich (Benjamin J. Wish also present) for the 

plaintiff.