David Rich and Benjamin Wish persuaded the Supreme Judicial Court that the Massachusetts Bay Transportation Authority waived its affirmative defense that a pre-suit presentment letter related to an alleged assault by an MBTA bus driver was insufficient.
The MBTA's defense was not specific and particular, in violation of a civil litigation procedural rule, according to the court.
The Massachusetts Tort Claims Act, which governs personal injury claims against government agencies, requires a claimant to provide notice of a claim through a presentment letter to the relevant agency before filing a formal lawsuit.
The plaintiff, who is seeking damages for injuries resulting from the assault by the bus driver, alleges in his complaint that the MBTA was negligent in its hiring, training, and supervision of the driver.
In response to the lawsuit, the MBTA raised the affirmative defense that the plaintiff's pre-suit written notice of claim was inadequate, but it did not specifically state why it believed the letter was insufficient.
Instead, the MBTA's affirmative defense stated that the "[p]laintiff's claims should be dismissed as Plaintiff failed to make proper presentment of this claim pursuant to [G. L. c.] 258, § 4."
The SJC upheld a lower court judge's ruling that the MBTA waived this defense because it did not comply with the civil procedure rule mandating specificity in an affirmative defense based on a failure to comply with the written notice of claim requirement of the Tort Claims Act.
In particular, the SJC observed that the MBTA could have stated in its affirmative defense that the presentment letter was inadequate because it did not include the negligence claim.
Mr. Rich and Mr. Wish are experienced appellate attorneys, having both obtained a number of favorable results for clients.