Tort Suit Dismissed For Failure To Make Adequate Presentment


Tort Suit Dismissed For Failure To Make Adequate Presentment: Kelly v. Wareham, Plymouth Superior Court, C.A. No. 08-00917-B

PD&P successfully moved to dismiss a personal injury case based on inadequate presentment under M.G.L. c. 258, § 4.  The litigation stemmed from a low speed collision that occurred in August 2006 in Wareham, Massachusetts.  The plaintiff claimed that he sustained back injuries when a vehicle owned by the Town of Wareham and operated by a Town employee backed up and struck the vehicle in which the plaintiff was sitting.

Plaintiff brought suit against the Town alleging that the driver of the Town vehicle was negligent.  Prior to bringing suit, plaintiff’s counsel submitted two letters to the Town, both purporting to satisfy the written presentment requirements of M.G.L. c. 258, § 4.  The first letter was addressed simply “Dear Sir or Madam.”  The second letter, which plaintiff sent several days after the first, was directed to the Town’s Purchasing Agent.  On behalf of the Town, PD&P moved to dismiss plaintiff’s Complaint on the grounds that the letters did not satisfy the presentment requirement because they were not addressed to an “executive officer” of the Town.  Specifically, Section 4 requires that presentment be made to one of the following executive officers: “mayor, city manager, town manager, corporation counsel, city solicitor, town counsel, city clerk, town clerk, chairman of the board of selectmen, or executive secretary of the board of selectmen.”

In opposition to the motion to dismiss, plaintiff argued that the Town’s Purchasing Agent shared the same physical office space as the Town Administrator and, therefore, despite the technical deficiencies in the presentment letters, the Town had actual notice of plaintiff’s claim.  Further, plaintiff’s counsel deposed the Purchasing Agent, who testified that she had forwarded the claim to the Town’s insurance carrier and that it was her normal practice to inform Town Counsel of all new claims upon receipt (although she could not recall whether she had followed that practice with respect to Kelly’s claim).

After oral argument, the Plymouth Superior Court (Connon, J.) granted the Town’s motion to dismiss.  In a brief written opinion, the Court noted that plaintiff’s presentment letters were deficient and that plaintiff failed to establish that the Town had actual notice of his claim, despite the fact that the Purchasing Agent worked in close confines with the Town Administrator.  This decision illustrates the continued viability of the presentment defense under the Massachusetts Tort Claims Act.  Future claimants and their counsel should take all precautions to ensure that the requirements of M.G.L. c. 258, § 4 are scrupulously met. 

 – Jason W. Crotty