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Rodriguez v. City of Somerville (Lawyers Weekly No. 10-124-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11767   EDGAR RODRIGUEZ[1]  vs.  CITY OF SOMERVILLE. July 20, 2015. Massachusetts Tort Claims Act.  Moot Question.  Practice, Civil, Moot case, Presentment of claim under Massachusetts Tort Claims Act, Interlocutory appeal.  Governmental Immunity.  Municipal Corporations, Governmental immunity, Liability for tort.  Notice, Claim under Massachusetts Tort Claims Act.      After the plaintiff, Edgar Rodriguez acting on behalf of his minor son Rodrigo, commenced this negligence action against the city of Somerville (city), the city filed a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), claiming that the plaintiff failed to meet the presentment requirements set forth in the Massachusetts Tort Claims Act (Act).  See G. L. c. 258, § 4.  A judge in the Superior Court denied the motion, concluding that the letter satisfied the statutory requirements.  The city appealed, and in doing so argued that the appeal, which was interlocutory, was proper pursuant to the doctrine of present execution.  The Appeals Court concluded that the doctrine of present execution does not apply and dismissed the appeal.  See Rodriguez v. Somerville, 86 Mass. App. Ct. 1 (2014).  The case is now before this court on further appellate review.   Background.  The essential background, as set forth in the Appeals Court’s decision, is as follows:   “On April 14, 2011, Rodrigo Rodriguez, a second grade student at the Argenziano School in [the city], was injured when a metal door frame fell off the front door of the school and struck him in the head.  On May 11, 2011, an attorney representing the minor and his parent and next friend, Edgar Rodriguez, sent a letter to the mayor of [the city].”   Id. at 2.  The plaintiff maintains that the letter was meant to satisfy the presentment requirements of G. L. c. 258, § 4, and in his complaint filed on March 29, 2013, alleged that “[t]imely and proper presentment was made to [the city] pursuant to [G. L. c. 258, § 4].”[2]   Discussion.  1.  Mootness.  We address, as an initial matter, the plaintiff’s motion to dismiss the city’s appeal to this court as moot.  He argues that the presentment question is moot because the original pleadings in the case have been superseded by subsequent pleadings, filed while this appeal has been pending.  Among other things, the plaintiff has filed an amended complaint; the city has, in turn, filed an amended answer; and additional […]

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Posted by Massachusetts Legal Resources - July 20, 2015 at 8:34 pm

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