53 Mass. App. Ct. 526 | Mass. App. Ct. | 2002
Presentment of a claim under the Massachusetts Tort Claims Act is a condition precedent to suit more easily
1. Background facts. We set out the facts available to the judge in ruling on the motion for summary judgment. On June 22, 1989, counsel for Sheila Martin, the mother of Angelica Barboza and Robert John Barboza, sent a letter captioned “Claim for damages under M.G.L. c. 258, s. 2” to the Secretary of the Executive Office of Communities and Development (EOCD). The letter began, “I represent Ms. Sheila Martin, the mother of two children who were poisoned by the ingestion of lead contained in paint found in their apartment at 486 Warren Street, Apartment 2, Dorchester, MA.” The letter informed that on December 1, 1987, Ms. Martin had signed a lease for the premises in reliance upon a November 12, 1987, inspection report from EOCD certifying that the premises were lead-free. In 1988, Ms. Martin discovered that, contrary to the inspection report, there was, indeed, lead paint on the premises. Her two children had elevated levels of lead in their blood, necessitating costly and painful treatment. The letter stated:
“As you know, such exposure to lead paint with resulting high lead levels in the blood subjects the children to retarded educational, social, vocational, and intellectual development.
“If you are willing to discuss settlement of this case, please contact me.”
When no settlement was forthcoming, see G. L. c. 258, § 5,
Prior to trial, the judge severed Ms. Martin’s individual claims, and the case went to trial on the children’s lead poisoning claims. On December 11, 1997, a jury returned a verdict in favor of the two children against the Commonwealth.
2. The presentment requirement. General Laws c. 258, § 4, as inserted by St. 1978, c. 512, § 15, provides in pertinent part: “[a] civil action shall not be instituted against a public employer on a claim for damages under this chapter unless [a] 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 . . . .” The parties do not dispute that the June 22, 1989, presentment letter was timely, see Weaver v. Commonwealth, 387 Mass. 43, 45 (1982), and that it was presented to the appropriate executive officer of the public employer. See G. L. c. 258, § 4; Lodge v. District Attorney for the Suffolk Dist., 21 Mass. App. Ct. 277, 281 (1985). The sole disputed issue is whether the letter constituted a presentment of Ms. Martin’s individual claims within the meaning of the statute.
An oft-recited proposition is that presentment must be made “in strict compliance with the statute.” Weaver v. Commonwealth, 387 Mass, at 47; Lodge v. District Attorney for the
The purpose of the presentment requirement is to “ensure[] that the responsible 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 nonmeritorius claims, settle valid claims expeditiously, and take steps to ensure that similar claims will not be brought in the future.” Lodge v. District Attorney for the Suffolk Dist., 21 Mass. App. Ct. at 283. Presentment is mandatory to permit the responsible executive officers to investigate, negotiate, and settle claims. See Weaver v. Commonwealth, 387 Mass, at 47. “The presentment requirement envisions arbitration, compromise, or settlement of claims. See G. L. c. 258, § 5.” Tambolleo v. West Boylston, 34 Mass. App. Ct. 526, 532 (1993), quoting from Pickett v. Commonwealth, 33 Mass. App. Ct. 645, 647 (1992).
Just as “no sharp criteria can be formulated to settle all questions about the proper officer” to whom presentment must be made, see Lodge v. District Attorney for the Suffolk Dist., 21 Mass. App. Ct. at 284, the requisite sufficiency of content in a presentment is easier to outline than to apply. Gilmore v. Commonwealth, 417 Mass. 718, 723 (1994), sets forth the test for assessing the sufficiency of content in both positive and negative terms. “[A] presentment letter should be precise in identifying 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. Ibid.
The Gilmore test seeks to strike an appropriate balance between precision and lack of obscurity so as to satisfy the purposes behind the presentment provision: affording the executive officer the opportunity to investigate the circumstances of each claim, settle, and take preventive measures. Id. at 721-722.
The letter satisfies both the positive and negative enunciations of Gilmore: (1) it identifies the legal basis of the claims; and (2) it is not so obscure that educated public officials would be baffled or misled as to whether the claims are a proper basis for suit. The letter identifies precisely and unequivocally the factual basis of the claims: ingestion of lead paint by the children as a result of the negligence of the Commonwealth’s agent in certifying to the mother prior to her signing the lease that the premises were free from lead paint. From this the public official could clearly ascertain that, if substantiated, the claims would fall within the ambit of G. L. c. 258.
The letter does not state explicitly, as it easily could have, that Ms. Martin was presenting particularized claims on behalf of the children and herself individually. However, neither does the letter explicitly limit the claims to those of the children. While the letter is not a model of particularity, neither is it so obscure as to baffle or mislead. The letter identifies the mother and the children, states the factual basis for the claims, and invites a reply to discuss settlement. The letter afforded the executive officer the opportunity for investigation, settlement, and preventive measures.
Neither would the public official receiving Ms. Martin’s presentment be baffled or misled as to the factual investigation necessary for resolution of any claims short of suit. No greater or different investigation of the facts giving rise to liability would need be undertaken for the mother’s claim than for the children’s. Liability for Ms. Martin’s individual claims and those of the children would be based upon circumstances ascertainable through one investigation, the focus of which would be whether the children had ingested lead paint on the premises notwithstanding the certification that the premises were lead-free.
This case is unlike Tambolleo, supra, where the presentment letter advised only of an assault, an intentional tort outside the ambit of G. L. c. 258. There the presentment did not place the
In sum, we conclude that the letter, which specifically identified a legal basis, all theories of liability for which were premised upon the same facts, constituted an adequate presentment. The letter put the executive officer on notice of the time, place, and factual basis of the claims sufficiently to allow the opportunity to investigate, evaluate, settle, and avoid further liability. “The proper authority was placed on notice of the circumstances surrounding the alleged injury. The executive officer had the opportunity to investigate the circumstances of each claim, as all theories of liability argued by the plaintiff were based on the same facts.” McAllister v. Boston Hous. Authy., 429 Mass. 300, 305 n.7 (1999).
Having decided that Ms. Martin’s presentment sufficed, we need not consider her additional argument that the Commonwealth waived the sufficiency of her presentment by failing to deny it specifically and with particularity.
The summary judgment entered in favor of the Commonwealth on Ms. Martin’s individual claims is reversed.
So ordered.
The jury awarded $404,000 to Angelica Barboza and $147,000 to Robert Barboza. These amounts were reduced pursuant to the statutory maximum and judgment entered on behalf of each child in the amount of $100,000. See G. L. c. 258, § 2.
If settlement could not be achieved, further particularization as to claimants, theories of liability, and damages would be proper subjects of pleading and discovery in accordance with the Massachusetts Rules of Civil Procedure.
We note in passing that as Ms. Martin’s complaint did specifically aver proper presentment, more was required of the Commonwealth than the assertion of a general denial and boilerplate affirmative defense. “In order to test the efficacy of an attempted presentment, a plaintiff . . . may aver generally that all statutory conditions precedent to recovery have been met; the defendant must deny the plaintiff’s averment ‘specifically and with particularity’ (Mass. R. Civ. R 9 [c]), or defective presentment is not an issue in the case.” Vasys v. Metropolitan Dist. Commn., 387 Mass, at 52. G & B Assocs., Inc. v. Springfield, 39 Mass. App. Ct. 51, 55 (1995).