This appeal, which we have transferred here on our own initiative, principally involves the requirement of the presentment of a claim under the Massachusetts Tort Claims Act. G.L.c. 258, § 4.
The defendants filed a motion to dismiss, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), based on the failure of the plaintiff to make a valid presentment within two years after the date on which the cause of action arose. G.L.c. 258, § 4. The defendants also argued that the plaintiff mistakenly had named "certain [unspecified] public employees" as defendants in her c. 258 complaint, because (pursuant to § 2 of that chapter) only the public employer, and not the public employee, may be held liable for losses resulting from the employee's negligent or wrongful acts or omissions occurring within the scope of his employment. On June 22, 1981, a judge of the Superior Court granted the motion and dismissed the complaint against all defendants.
The presentment issue. The Massachusetts Tort Claims Act (Act), G.L.c. 258, as appearing in St. 1978, c. 512, § 15, makes public employers liable for losses caused by the negligence of public employees acting within the scope of their employment. § 2. Before any action for damages may be brought against a public employer, however, the claimant must present his claim to the employer's executive officer "within two years after the date upon which the cause of action arose." G.L.c. 258, § 4. See Pruner v. Clerk of the Superior Court in the County of Norfolk, 382 Mass. 309, 316 (1981). Only if the claim is denied, or the executive officer fails to settle, arbitrate, or compromise the claim within six months, may the claimant file suit. The cause of
The plaintiff argues both that the first presentment was made to the proper public officials, and that the second was timely. She concedes that Westborough State Hospital and the Department of Mental Health are within the Executive Office of Human Services; the plain language of G.L.c. 6A, § 16, requires such a concession.
Section 1 of the Act defines "[e]xecutive officer of a public employer" as "the secretary of an executive office of the commonwealth, or in the case of an agency not within the executive office, the attorney general...."
The plaintiff advances three arguments for the proposition that, even if presentment should have been made to the Secretary, the presentment requirement of G.L.c. 258, § 4, has been met. She argues that (1) the first presentment was sufficient because it constituted constructive notice to the Secretary, (2) the second presentment amended and related back to the first and was therefore effective as of the date of the first, and (3) the two-year presentment period was tolled by the provisions of G.L.c. 260, § 10.
The plaintiff's constructive notice argument ignores two salient points. The Act requires presentment to the official who has the authority to settle a claim before suit is instituted. See G.L.c. 258, § 5. Thus, without an actual presentment made in strict compliance with the statute, the executive officer with the authority to settle a claim could not be assured of an adequate opportunity to investigate the circumstances surrounding that claim in order to determine whether an offer of settlement should be made. In addition, the individual to whom presentment must be made is
We conclude also that the relation back principles of Mass. R. Civ. P. 15 (c), 365 Mass. 761 (1974),
The legislative treatment of a notice requirement, in a statute analogous to G.L.c. 258, reinforces our conclusion that the Legislature intended the presentment requirement contained in § 4 of c. 258 to apply in cases such as this. The statute governing actions arising from certain defects in public ways contains a notice requirement similar to the presentment requirement of the Act. See G.L.c. 84, § 18. In enacting the Act, the Legislature took pains to preserve the status and force of G.L.c. 84. See St. 1978, c. 512, § 18; Gallant v. Worcester, 383 Mass. 707, 711 (1981). At the time the Act was enacted, § 18 of G.L.c. 84, as amended through St. 1973, c. 1085, provided, among other things, that "[f]ailure to give such notice of ... injury or damage ... shall not be a defense under this section unless the defendant proves that he was injured thereby" (emphasis supplied). We cannot read into c. 258 an affirmative requirement that prejudice must be shown before the Commonwealth can rely on failure of presentment when the Legislature has specifically required such a showing in a closely related statute. Had the Legislature intended to require that the Commonwealth must show prejudice in order to rely on lack of presentment under c. 258, it would have included plain language to that effect.
The last clause in the definition of "[e]xecutive officer" provides that in the case of "any ... public employer [other than those named specifically within the definition], the nominal chief executive officer or board" is the "[e]xecutive officer." Assuming, without deciding, that this last clause applies to officers of the government of the Commonwealth (as opposed to those of cities, towns, counties or districts), it can have no application here. The Department of Mental Health and Westborough State Hospital cannot fall into the category "any other public employer," since these entities are included within the Executive Office of Human Services by § 16 of c. 6A.