Posts tagged "1107714"

Rodriguez v. City of Somerville (Lawyers Weekly No. 11-077-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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;   13‑P‑1422                                       Appeals Court   RODRIGO RODRIGUEZ[1]  vs.  CITY OF SOMERVILLE. No. 13-P-1422. Middlesex.     May 5, 2014.  –  July 1, 2014. Present:  Grasso, Grainger, & Milkey, JJ.     Massachusetts Tort Claims Act.  Practice, Civil, Presentment of claim under Massachusetts Tort Claims Act, Interlocutory appeal.  Municipal Corporations, Governmental immunity, Liability for tort.  Notice, Claim under Massachusetts Tort Claims Act.     Civil action commenced in the Superior Court Department on March 29, 2013.   A motion to dismiss was heard by Dennis J. Curran, J.     Jason D. Grossfield, Assistant City Solicitor, for the defendant. Stephen M. Born for the plaintiff.   GRASSO, J.  In this appeal, we consider whether the doctrine of present execution applies to, and renders immediately appealable, the denial of a motion to dismiss that alleges inadequate presentment under the Massachusetts Tort Claims Act (Act).  See G. L. c. 258, § 4, as amended through St. 1989, c. 161.  We conclude that the doctrine of present execution does not apply in such circumstances.  The presentment requirement imposed on a tort claimant under the Act is not an immunity from suit preserved to the public employer, such as is contained in other provisions of the Act.  See G. L. c. 258, § 10.  Rather, presentment is a condition precedent imposed on a claimant that may be waived by the public employer.  Accordingly, we dismiss the appeal of the city of Somerville (city). Background.  On April 14, 2011, Rodrigo Rodriguez, a second grade student at the Argenziano School in Somerville, 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 Somerville,[2] the contents of which are discussed briefly below. On March 29, 2013, Edgar Rodriguez filed suit against the city on behalf of his son, alleging negligence.  Among its other allegations, the complaint asserted that “[t]imely and proper presentment was made to City of Somerville pursuant to Massachusetts General Laws Chapter 258, section 4.”  Prior to answering, the city moved to dismiss the complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), alleging that the attorney’s letter was an insufficient presentment under the Act.[3] After hearing, a judge of the Superior Court denied the city’s motion, concluding that the attorney’s letter […]


Posted by Massachusetts Legal Resources - July 1, 2014 at 11:46 pm

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