-: SJC-13624.
Matthew Theisz versus Massachusetts Bay
Transportation Authority.
Okay, Attorney Sage, whenever you're ready.
-: Madam Chief Justice, may it please the court,
Jennifer Lee Sage on behalf
of the Massachusetts Bay Transportation Authority,
and with me is Attorney John Bonacelli.
This case is here before you
on a further appellate review of the Appeals Court decision,
upholding the denial of summary judgment
to the MBTA on its claims
for immunity from suit under the Tort Claims Act.
This case arises out of an accident
that occurred on March 3rd, 2015,
when the plaintiff was physically assaulted
by an MBTA bus operator.
The plaintiff claims in this action that the injury occurred
because the MBTA negligently trained, supervised,
and/or retained this bus operator.
Under the case law of this court in the appeals court,
those claims are barred by the Section 10J
of the Mass Torts Claims Act.
Under Section 10J, the MBTA is immune
from liability unless the condition
or situation was originally caused by the MBTA.
Under Brum v Dartmouth and its progeny,
whether a public employer originally caused a condition
or a situation requires a two-pronged analysis.
The first prong is that it requires an affirmative act
and not a failure to act,
to create the condition or situation
that the claims resulted in the harm.
Moreover, that affirmative act must have materially
contributed to creating the condition
or the situation that resulted in the harm.
The crux of the plaintiff's claims in this case is that,
had the MBTA acted differently by way of better trained
or better supervised or simply fired the bus operator
after certain reported bad behavior,
this incident, accident might have been averted.
But by those very statements, it explains why-
-: Well, the appeals court decisions,
it's very carefully sort of set out,
and you know, it rises or falls on the idea
that we've never had a, the third party is an employee.
It's not, you know, it's not nature or a kid
or a bully, but an employee.
And there's some logic to that, right?
That, you know, you've hired this person,
you've maintained this person,
you've kept them there despite some odd
and even reckless acts by this person.
So why isn't the appeals court right?
I mean, just it seems
there's no case like this, is there,
that goes the other way.
-: The third party issue, your Honor, is that that issue
has actually already been decided
by this court in the appeals court.
In Brum, the court ruled
that the exemption provides immunity with respect
to all circumstances,
including the violent tortious conduct of a third party.
-: Yeah, but was the third party an employee?
That's the-
-: And then Brum was, I can't remember the facts in Brum.
Is the third party an employee in Brum?
-: In Brum,
the original cause analysis is a claim based analysis,
and thus all cases
that trigger this 10J exemption,
the plaintiff's claims have been that the public employer
or employee was the original cause of the harm.
And Brum is a case of a fatal stabbing
of a student at a school.
And in that case, the plaintiff-
-: That's a, it was a student that stabbed, right.
It wasn't the employee who stabbed,
it was the student who stabbed.
-: It was the student that was stabbed.
You're right, your Honor.
-: So doesn't that take us into a different kind of analysis?
I mean, I understand some of these cases
about original cause, you know, start to sound
like failure to prevent,
but in the employment context you are worth,
the person wouldn't be there but for you
and putting them there and keeping them there
and training them the way they're trained.
-: In this case it's significantly different
because this is the case in which the employee,
the bus operator committed an intentional tort,
and to hold that, the original cause
of the plaintiff harm was for the MBTA to be held liable,
held vicariously liable for the intentional tort
of the bus operator would fly in the face of chapter 10C,
which the legislature has expressly
prohibited public employers from liability.
-: But vicarious liability is different
from negligent supervision or negligent hiring.
Vicarious liability is he did it, you're responsible
'cause he's your employee.
This is, they're building a separate cause
of action based on your own negligence.
There is a difference between 10C and 10J.
-: There is a difference between 10C and 10J.
This is a claim where the plaintiff's claim is not based
upon a vicarious liability claim.
That claim has been dismissed at the outset on a motion
for judgment of pleadings in this case.
The plaintiff in this action is claiming
that the MBTA negligently trained-
-: Isn't it the promotion that
that was the big part as I saw it.
It was the fact that he was a part-time employee
and then he was promoted despite all these missteps
and warning signs to that
of an unsupervised full-time bus driver.
-: Yeah.
-: And that put him in the position to do
what he did to the plaintiff.
But affirmative act is the promotion and then the,
that materially contributed to the harm
and that he's in this position to interact with the public.
-: The full, the change of work status from part-time
to full-time, I would argue, is a failure to prevent harm.
The alternative being the MBTA should have, maybe could have
and should have fired him at that point
but didn't and failed to do so.
That is a failure to act that's precluded by this act,
by this exemption.
Even if we were to assume that,
or to the extent that the court considers full-time status
as an affirmative act,
that would still fail under the 10 original cause analysis
because it doesn't meet the material you contributed
to creating the specific harm
that resulted in the plaintiff's harm.
There was no-
-: Can you just remind me, did the employee here
have a history of violent conduct
-: In the timing of-
-: So that's just a yes or no.
-: He had one instance,
and the record is somewhat factually ambiguous
as to the facts underlining that incident.
But there is potentially an incident,
that's the Bergeron incident that occurred in October, 2013
where there was some violent behavior by the bus operator.
-: And when was he promoted?
-: He was promoted prior to that.
-: Okay, and then they retained him-
-: And he was- -: In that position.
-: He was continuously employed as a bus operator
subsequent to that.
-: Is your rule of law categorical?
Is there any scenario
by which you promote someone who's unqualified and dangerous
and put 'em in a position to harm people
where there'd be no liability?
I'm thinking of a police officer, right,
not properly screened and they put him out on the beat
and they know the person has a very violent temper
and they shouldn't be there.
So is it, what what do you say to that?
-: There is a case in which,
it's a Massachusetts district court case,
in which promotion was found
to be a original cause to harm,
and that's Petting-Gil v Curtis.
And in that case a librarian who is known
to be sexually abusing Boy Scout members in the library
was then promoted to be the director of the library,
giving him unsupervised and more access
to this particular plaintiff
who ended up being sexually abused.
-: I guess that's a better hypothetical
than I could come up with, but-
-: Yeah, in our case, and this case is far removed
from that case.
But you agree that was properly decided
that the library would be on the hook.
-: I think was properly decided.
-: Okay.
-: Why? Why is that properly decided
and this one isn't if there's a prior incident
of violence with this person
-: Because there's no affirmative act here in light
of this prior knowledge.
Retention is not an affirmative act.
It is a failure to-
-: Sorry, I missed what the word you just said.
-: Retention. -: But try promotion though.
-: No, he was not promoted.
And that's the importance of the timing
Prior to his promotion,
there's no evidence in the record that the MBTA was aware
of his violent propensities.
In the 24 months that he worked
as a part-time operator, there are, in the record,
there's four instances of reported alleged bad behavior.
One is failing to stop at a, you know, a stop sign,
leaving a bus stop early, passing by a station
of people who were waiting for the bus
or failure to give a, you know, his badge number
to an offending, you know, motorist that did a U-turn
in front of his bus.
So prior to the promotion-
-: What about the police incident?
-: The police incident happened after the promotion.
So prior to the promotion, there's no notice to the MBTA
that this guy had any,
this operator had any violent propensities.
In furtherance to that, there was no affirmative act taken
by the MBTA to have materially created the assault
on the plaintiff in Cormier versus City of Lynn.
That was a case in which a student,
a particular student was being bullied at a school.
-: So getting back to what you said,
so the incident that we're most concerned about
is this March 23rd, 2013 incident with the driver?
-: No, your honor. March, 2013-
-: I'm sorry, that's when he was,
that was when he was promoted?
-: That's correct.
-: Alright, and then after that,
he was a physical altercation with the customer?
-: That's correct, your Honor.
-: Alright. Thank you.
-: And so, and even in the original cause analysis,
prior knowledge of bad acts is not the linchpin
in the original cause analysis.
And I would direct the court's attention
to the Cormier v Lynn case-
-: But again, though, that's a case
where the third party is a-
-: Yes, your Honor.
-: There are two students involved-
-: Yes, but even in that case,
the claim was against the public employee
of the principal and the school
and the town for failing to prevent that assault.
And in that case, a student was,
the school was put on notice
that these assailants were gonna come back to the school
and attack this particular student.
And in fact, the three assailants did come back
to the school visibly armed
and led to the stabbing of the student,
I'm sorry, that's the Brum case. (laughing)
The Cormier case is very similar in the facts
and relied heavily upon brum.
In Cormier, it was a bullying case in which a student
was being bullied and the school was put on notice
that the student was being bullied by the bully
that ended up pushing him down the stairs.
And the school was asked by the parents of the victim
to prevent this bullying.
However, the court, the school took no preventative action
and ultimately the student was pushed down the stairs
by the bully, and the court held
that placing the bully and the victim in the same class
is too remote as a matter of law.
And failure to act in a manner to ensure safety
is precluded under the act.
-: You're not arguing in, unless I'm wrong,
that 10J precludes the tort of negligence supervision,
-: 10J precludes negligence supervision.
-: No matter what?
-: I would be hard pressed to find a scenario
in which a negligence supervision would not be precluded.
-: Except if the person, except if the employee
had some sort of bad behavior, physical harm to somebody
and then was promoted
-: The librarian case.
-: That wouldn't be a supervision case, that would be-
-: Negligent promotion, I guess that would be.
-: That would be an affirmative act.
-: Why is retention different from promotion?
I mean, this person would never be driving that bus
unless he was hired by the MBTA, trained by the MBTA,
retained by the MBTA,
and promoted by the MTA.
Doesn't that, and I'm trying to understand
why the librarian is different.
The librarian who's the pedophile is different.
Why?
-: Because he, there was an affirmative act of changing
his job duties, increasing the risk to the plaintiff,
this particular-
-: But we have the same escalation of, he gets hired,
he gets trained, he gets retained,
he gets promoted.
If without the MBTA, he's not there,
I'm just, I'm not disagreeing with you so much
as I don't understand the distinction and why,
back to justice Gaziano's question.
you're not creating a categorical rule on this.
But go ahead
-: And I would again direct the court's attention
to the Brum case, Jane J. v Commonwealth,
where, you know-
-: All of those are forces outside of,
they're all something that's not an employee
or it's a student, it's a playground.
It's, you know, it's just different all those cases.
This, I mean, that's what I thought the,
I originally understood your argument
when I read your brief, but then I read
the appeals court decision
and there's a logic to this that I can't get around
unless you help me get around it.
-: Well, I think the appeals court has already expressly
decided that issue in Jacome which is the lifeguard case.
-: I thought it was the waves, right, that killed the kid.
-: Yes, but in that case,
the plaintiff specifically argued in that case
that this 10J immunity was a limited grant
of authority limited to the violent tortious
of a third party and not a public employee
as the plaintiffs were claiming in that case.
And the plaintiff was claiming in that case,
it was the public employee's failure to lifeguard,
which was the, which they argued-
-: Was the appeals court decision,
I thought your argument was,
basically read out the originally caused
by the public employee.
There's a limited portion that they kind of skipped.
Correct?
-: I'm sorry.
-: The appeals court focuses on the language
of a third person.
-: Yes. -: But that's illustrative
because it illustrates originally caused
by a public employer, correct?
-: Yes, and then, you know,
and then Jacome, in that case, the court rejected
that specific argument
and held that the 10J immunity was not restricted
to claims arising from tortious behavior of third parties.
That holding was then affirmed
in Moore v Bill Ricka in 2013,
and then again in Cleven versus Newton in 2020.
In Cleven, the court ruled that although Section 10J
is often applied to situations
where harmful consequences resulted from the tortious
conduct of a third party, that is a non-government employee,
it is clear from the 10J language
that the immunity is not limited
to situations involving the third party torture conduct.
In a case that was decided by this court more recently
is the Doe v Mass Trial Courts.
In that case, it was a court officer
who was sexually abusing inmates
that was being transported in the courts.
And although this court didn't address the 10J,
the superior court down below in that case held
that even though it was a public employee
who was committing the sexual assault,
that 10J and 10B both barred the plaintiff's claims
in that action is a failure to prevent harm.
Okay, thank you.
-: Oh yeah. -: Time's up.
-: My time is running out.
I thank you for your time
and the MBTA requests that the decision
of the superior court be reversed in summary judgment
entered for the MBTA.
Thank you.
-: Thank you.
-: Okay, Attorney Rich,
-: Thank you.
May please the court and good afternoon.
Make no mistake, the MBTA,
the relief the MBTA seeks in this case,
and they say it right at page nine
of their reply brief is 10J bars the plaintiff's claims,
even if the MBTA knew
or should have known of Smith's violent propensity
and that he would some point in the future
endanger the public.
-: Okay, but let's assume that there
is this temporal bar, right?
So what do you say to that?
What do you say to promoted
and then the bad behavior?
Yeah, so I think my first answer to that, and I'll come back
because I want to answer your question directly,
is that 10J simply doesn't apply here
as the appeals court found,
because to do so, the court would be required
to read out the last phrase,
which exempts from the exemption,
not originally caused by the public employer
or any other person acting on behalf of the public employer.
I'm gonna come back to that, but I want
to answer your question, which is really sort of,
what are the affirmative acts?
And I think that, from my perspective,
they fall into three buckets.
The first is the promotion, which we've pointed to,
and the Bonnie W case, that's the case
where the probation officer recommended someone
to go work in a trailer park and there was an injury
and the court found that claim was not barred.
So that's simple.
There's a temporal-
-: That's a private sector case, right?
-: No, that was Bonnie W versus Commonwealth.
-: 10J case.
-: It was, yes, I think so.
It's an assault in the trailer park.
The probation officer had recommended the individual
for a promotion and-
(overlapping discussion)
-: But as I line up these so-called bad acts,
some of them, some of 'em are fairly innocuous.
The only one that bothers me is the,
as the chief points out, the post promotion.
-: Yeah, so lemme talk about that.
So the first is the Bergeron, which is the one where they,
where he gets up out of the bus and he beats someone up
and the bus crashes into that.
The MBTA actually took an affirmative act in connection
with that and they suspended him for one day.
And I would argue that the act of suspending him
for one day is an affirmative act.
It was an inadequate affirmative act
and it is one that materially contributed
to what inevitably what did happen
and what was clear would've happened after that.
-: So it was retention that you have a problem?
-: Yeah, but it was retention,
part and parcel of this was the affirmative decision
to suspend him for one day.
That was a conscious, intentional, affirmative act.
I would also say-
-: That just doesn't seem even remotely plausible
that the MBTA stepped up
and disciplined for one day, one week, one year, a month,
I don't care.
They actually took an action.
And you are saying that
therefore they're on the hook for being liable
because they took a punitive action against the employee.
-: Well if you, and your point is a good one,
which is it gets into this whole conundrum where,
why this makes no sense in this context
-: Yeah, I think that's where you're better off,
on the affirmative, retention not being an affirmative act.
Maybe that would be a better place to put your energy.
-: But the point is, is to your point, your Honor,
I think it's well said, is that if you accept the idea
that retention can't be an affirmative act or liability,
it encourages an employer, a public employer to do nothing.
Because the more they do, the more affirmative
that they are acting and it turns this-
-: So instead of arguing that,
can you tell me why retention should be included
as a basis for liability?
-: Well, because the entire process
by which one is retained is a holistic act of analysis
of one's performance.
And let me just give you a specific example-
-: I understand the concept of retention.
-: I appreciate that.
But let me give you, try and give you a real world example.
So we talked a little bit about the Last Act,
which happened in February of 2014,
where he gets into a verbal altercation
with a police officer
and ultimately leads to him being arrested.
No discipline associated with that.
Three months later he is written up
for excessive absenteeism from work.
So I would respectfully suggest that you have
to look at this entire pattern of conduct holistically
and as part of an overall disciplinary regime,
all of which are not passive activities,
but part of an affirmative program in a manner
of acting in an affirmative way with regard
to your employees who are ultimately out there
interacting with the public.
And to suggest that the appropriate-
-: Well, the question isn't whether he's a bad employee.
The question is whether he's a dangerous employee.
And I don't know how excessive absenteeism
says he's a dangerous employee.
-: And I'm not suggesting someone who's absent
from work is dangerous.
I'm suggesting that the mere act of supervising,
retaining, to Justice Weinland's question,
is an affirmative activity in a holistic sense.
And you can't pull out one and say,
well, you didn't discipline him,
so that's not an affirmative act.
You didn't do anything, and so we're off the hook.
It encourages a lack of discipline,
it encourages a lack of supervision.
And that can't be 258, I'm sorry,
258 is intended to do.
You know, it's not all that different,
it's a little bit different, but the analogy is there.
The Devlin case from the appeals court,
and that's where the commonwealth allowed convicted inmates
to work in an area where civilly committed inmates worked.
And it was considered to be an original cause
and an affirmative act,
and 10J was found not to apply.
-: What's the case?
I think it's an appeals court case that says
that when we look at original cause,
it has to, exact in scrutiny,
there's some heightened language
the court's supposed to apply.
-: I'm not sure the case
to which you are referring, your Honor,
but I would refer you to the Kent case,
which is an SJC case, where it says,
it talks about an original cause.
It says it's not an affirmative act by a public employer,
but it's one that, quote, "creates the conditions
"or situation that results in the harm
"inflicted by a third party."
By a third party.
That's what this court held in the Kent case.
It's also what the court, the appeals court
in the Sorrell case held where we say,
and that's the case where there was a failure
to subdue an inmate and there was a tussle,
and then the correctional officer injured
the plaintiff in that case.
And the appeals court said, we observe in this regard
that the cases to date construing 10J
and holding at a bar tort liability
involve fact patterns where a third party,
not a government actor directly harmed the plaintiff.
And that's where I start really and sort of jumped over,
which is 10J doesn't apply
to this particular fact pattern and the reason,
and all of you have commented-
-: I don't know if that makes sense.
So meaning you're proposing
the exact opposite categorical rule,
that all employees are,
all acts by employees, they're responsible for?
-: No, I'm, no, of course not.
What, because what what I am saying is
that 10J doesn't exempt a claim for negligent hiring,
training and supervision where the perpetrator,
the ultimate perpetrator of the harm is an employee
of the public employer.
And ultimately whether that claim fails or-
-: How else would you have negligent supervision
if they weren't an employee?
-: Well, but fair enough.
But my point is, if you read every single case,
and all of you asked this in one way
or the other, all the cases
that hold the 10J applies fall into one of three buckets.
One is the genuine third party,
the bully, the inmate who kills
the correctional officer, et cetera.
Two is this natural cause, I think it's the Jacome case
where that comes in.
And three is when when the plaintiff does something to them
or the plaintiff's kin does something to themselves,
they hurt themselves, and the claim,
there is not a case that has been decided
by this court or the appeals court,
quite frankly, the district court that's at least cited
by the parties where the injury was directly caused
by the public employee while working in the course
and scope of the public employee's work.
And that's exactly why-
-: The scope of his work was to drive the bus,
not to beat up passengers, right?
-: But I'm distinguishing from someone's at home
and does something terrible.
And there is, I think there's an unreported district court
or appeals where a police officer off the clock
beats up a partner and there was a lawsuit
that was brought that said, Hey, you knew my,
this person was a bad guy
and you continued to employ him.
And I think there was a presentment problem in that case.
But in any event, so I'm saying
where someone's at work doing their job
and they hurt someone in an intentional way.
There isn't a single case that has-
-: But that can't be right though.
So this person,
you've got a driver who's never done anything wrong
and he rapes somebody
'cause she's the last person on the bus.
They don't know he's a rapist.
They have no knowledge of that,
they can't be the original cause of that.
-: So, but that-
-: That's different from this.
-: But that case would be not, 10J would not be
a defense to that case,
but the case would be disposed at summary judgment
because there would be no evidence to support a claim
of negligent supervision,
negligent hiring or negligent-
-: We have to figure out, you know, what's the cart
and what's the horse each time.
And that's not easy, 'cause the cases, let's face it,
are not that clear.
But I just, I don't know where you're going
with the last part of this thing.
-: Well, where I'm going is that 10J,
the language in 10J is clear,
that says that it cannot be invoked.
That part doesn't say but the,
unless where it is not originally caused
by the public employer, any other person acting on behalf
of the public employer,
and any other person acting on behalf
of the public employer, that language has
to have meaning in 10J or it wouldn't be there, or-
-: But caused by the employer, their,
your best argument, which is articulated
by the appeals court is this whole employment setup
with this, you hired, I mean they hired, retained, promoted,
and kept a person they knew was sort of a, you know,
an accident waiting to happen, you know,
volatile and dangerous.
And that's the cause of this.
Not that he's volatile and dangerous
and they don't know anything about it.
-: But I don't disagree with you, your Honor,
but the appeals court at 825 of the decision,
says the reference to quote,
"The violent and tortious conduct
"of third persons in section 10J does not include
"the conduct of public employees."
That was their finding that 10J didn't apply.
They then go on to go through the analysis
of saying, but even if it did,
based on this particular fact pattern,
there is sufficient evidence in the record which would
warrant a jury trial on whether the conduct
of the MBTA in permitting this behavior,
permitting this person, retaining this person,
is a sufficient original cause such that the case,
it presents tribal issues.
But again, it's not just me saying it,
this court in Kent specifically said,
and I already said this,
but an affirmative act by the public employer
that creates the condition in harm inflicted
by a third party.
That's again, a reference to
the perpetrator is someone other than them.
-: So you're saying 10J doesn't apply and then there,
and so there is no bar to the plaintiffs.
-: Yes, the summary judgment was properly denied
and it may go forward to trial.
That's all we're looking for today, is trial.
And you know, after I think eight years,
this case has been pending.
And so, but my second argument is,
even if the court does find
there is framing for a 10J argument here,
the conduct at issue here, the conduct by the MBTA
is under applicable law,
particularly as framed by the Kent case,
not the Kent ruling, but the ultimate decision in Kent.
But as framed by where the act must materially contribute
to the specific condition
or situation that resulted in the harm,
their conduct in allowing this person,
time after time after time, presents a triable issue
as to whether they were negligent in their supervision,
retention and training, et cetera.
So that's, and based on the Kent decision and its progeny
and how it defines an original affirmative act.
The very last thing I would say in my last 30 seconds
is that I would urge the court to not do what they ask,
which is to overturn Dobos and Dovers-Blanchard.
It's been the law of the land for 35 years in recognizing
negligent supervision-type cases.
There's no basis to do that.
I'm not sure it's even properly before the court,
but even if it is, I would urge the court not to.
The amicus brief does a wonderful job of articulating why
and I would refer the court to that.
-: Okay. -: Thank you very much.