Bill H.3055

HOUSE DOCKET, NO. 3623 FILED ON: 1/20/2017

HOUSE . . . . . . . . . . . . . . . No. 3055

By Mr. Frost of Auburn (by request), a petition (accompanied by bill, House, No. 3055) of Paul Nordberg relative to claims and indemnity procedures. The Judiciary.

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act relative to tort claims.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 258 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out said chapter, in its entirety, and inserting in place thereof the following language:-

Section 1. As used in this chapter the following words shall have the following meanings:-

''Acting within the scope of his office or employment'', shall include but not be limited to acting in the performance of any lawfully ordered military duty, in the case of an officer or soldier of the military forces of the commonwealth.

“Abuse of Discretion,” occurs when a public employer and/or its authorized employee selects a discretionary course of action, or decides to take no action, when the option selected lacked sufficient merit as to warrant or justify serious consideration. Whether Abuse of Discretion has occurred shall be a question of fact, to be determined by the trier or triers of fact.

A “Cause for Action,” for purposes of the applicable statute-of-limitations, arises either when: The claimant/plaintiff has knowledge of sufficient facts as to give rise to the alleged course-of-action; OR a reasonable person should have become aware of the facts giving rise to the alleged cause of action.

The question of when a reasonable person should have become aware of the facts giving rise to the alleged cause-of-action bill shall be a question of fact, to be determined by the trier or triers of fact.

“Cause of Action Based on Illegal Conduct”- In any instance in which the conduct of the public employer and/or one or more of its authorized employees both: Was illegal under-then-existing law; and led to injury or death or financial damages to the claimant/plaintiff.

The Combination of these two factors shall create a prima-facie case to the effect that a tort has occurred for which the claimant/plaintiff is entitled to recover damages.

''Executive officer of a public employer'', 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 adjutant general of the military forces of the commonwealth; the county commissioners of a county; the mayor of a city, or as designated by the charter of the city; the selectmen of a town or as designated by the charter of the town; and the board, directors, or committee of a district in the case of the public employers of a district, in the case of the Massachusetts Bay Transportation Authority, its general manager and rail and transit administrator, and, in the case of any other public employer, the nominal chief executive officer or board.

''Public attorney'', the attorney who shall defend all civil actions brought against a public employer pursuant to this chapter. In the case of the commonwealth he shall be the attorney general; in the case of any county he shall be the district attorney as designated in sections twelve and thirteen of chapter twelve; in the case of a city or town he shall be the city solicitor or town counsel, or, if the town has no such counsel, an attorney employed for the purpose by the selectmen; in the case of a district he shall be an attorney legally employed by the district for that purpose; and, in the case of the Massachusetts Bay Transportation Authority, the attorney shall be the general counsel. A public attorney may also be an attorney furnished by an insurer obligated under the terms of a policy of insurance to defend the public employer against claims brought pursuant thereto.

''Public employee'', elected or appointed, officers or employees of any public employer, whether serving full or part-time, temporary or permanent, compensated or uncompensated, and officers or soldiers of the military forces of the commonwealth. For purposes of this chapter, the term ''public employee'' shall include an approved or licensed foster caregiver with respect to claims against such caregiver by a child in the temporary custody and care of such caregiver or an adult in the care of such caregiver for injury or death caused by the conduct of such caregiver; provided, however, that such conduct was not intentional, or wanton and willful, or grossly negligent. For this purpose, a caregiver of adults means a member of a foster family, or any other individual, who is under contract with an adult foster care provider as defined and certified by the division of medical assistance.

''Public employer'', the commonwealth and any county, city, town, educational collaborative, or district, including the Massachusetts Department of Transportation, the Massachusetts Bay Transportation Authority, any duly constituted regional transit authority and the Massachusetts Turnpike Authority and any public health district or joint district or regional health district or regional health board established pursuant to the provisions of section twenty-seven A or twenty-seven B of chapter one hundred and eleven, and any department, office, commission, committee, council, board, division, bureau, institution, agency or authority thereof including a local water and sewer commission including a municipal gas or electric plant, a municipal lighting plant or cooperative which operates a telecommunications system pursuant to section 47E of chapter 164, department, board and commission, which exercises direction and control over the public employee, but not a private contractor with any such public employer, the Massachusetts Port Authority, or any other independent body politic and corporate. With respect to public employees of a school committee of a city or town, the public employer for the purposes of this chapter shall be deemed to be said respective city or town.

''Serious bodily injury'', bodily injury which results in a permanent disfigurement, or loss or impairment of a bodily function, limb or organ, or death.

Section 2. Public employers shall be liable for personal injury, or financial injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances, except that public employers shall not be liable to levy of execution on any real and personal property to satisfy judgment, and generally be liable only for pre-judgement interest commencing from the date one year after the filing after the filing of an action under this statute. Public employers generally shall not be liable for interest prior to judgment or for punitive damages or for any amount in excess of $500,000 per incident; provided, however, that all claims for serious bodily injury against the Massachusetts Bay Transportation Authority shall not be subject to a $100,000 limitation on compensatory damages. The remedies provided by this chapter shall be exclusive of any other civil action or proceeding by reason of the same subject matter, in any separate proceeding, against the public employer or, the public employee or his estate whose negligent or wrongful act or omission gave rise to such claim, and no such public employee or the estate of such public employee shall be liable for any injury or loss of property or personal injury or death caused by his simply negligent or unintentional non-malicious wrongful act or omission while acting within the scope of his office or employment; provided, however, that a public employee shall provide reasonable cooperation to the public employer in the defense of any action brought under this chapter. Public employers shall be liable in instances of Abuse of Discretion and/or gross negligence. Public employers shall be jointly and severally liable, along with the involved public employee(s) in instances of intentional or malicious tortious conduct. Failure to provide such reasonable cooperation on the part of a public employee shall cause the public employee to be jointly liable with the public employer, to the extent that the failure to provide reasonable cooperation prejudiced the defense of the action. Information obtained from the public employee in providing such reasonable cooperation may not be used as evidence in any disciplinary action against the employee. Final judgment in an action brought against a public employer under this chapter shall constitute a complete bar to any action by a party to such judgment against such public employer or public employee, in separate litigation by reason of the same subject matter.

Notwithstanding that a public employee shall not be liable for negligent or unintentional and non-malicious wrongful acts as described in the preceding paragraph, if a cause of action is improperly commenced against a public employee of the commonwealth alleging injury or loss of property or personal injury or death as the result of the negligent or wrongful act or omission of such employee, said employee may request representation by the public attorney of the commonwealth. The public attorney shall defend the public employee with respect to the cause of action at no cost to the public employee; provided, however, that the public attorney determines that the public employee was acting within the scope of his office or employment at the time of the alleged loss, injury, or death, and, further, that said public employee provides reasonable cooperation to the public employer and public attorney in the defense of any action arising out of the same subject matter. If, in the opinion of the public attorney, representation of the public employee, under this paragraph would result in a conflict of interest, the public attorney shall not be required to represent the public employee. Under said circumstances, the commonwealth shall reimburse the public employee for reasonable attorney fees incurred by the public employee in his defense of the cause of action; provided, however, that the same conditions exist which are required for representation of said employee by the public attorney under this paragraph.

Section 3. All civil actions brought against a public employer on a claim for damages cognizable under this chapter shall be brought in the county where the claimant resides or in the county where such public employer is situated, except that in the case of the commonwealth such civil actions shall be brought in the county where the claimant resides or in Suffolk county. The superior court shall have jurisdiction of all civil actions brought against a public employer. The district court and housing court shall have jurisdiction of actions brought against housing authorities pursuant to sections twenty-one to twenty-five, inclusive, of chapter two hundred and eighteen.

Section 4. A civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose, and such claim shall have been finally denied by such executive officer in writing and sent by certified or registered mail, or as otherwise provided by this section; provided, however, that a civil action against a public employer which relates to the sexual abuse of a minor, as provided in section 4C of chapter 260, shall be governed by section 4C1/2 of said chapter 260 and shall not require presentment of such claim pursuant to this section. The failure of the executive officer to deny such claim in writing within six months after the date upon which it is presented, or the failure to reach final arbitration, settlement or compromise of such claim according to the provisions of section five, shall be deemed a final denial of such claim. No civil action shall be brought more than three years after the date upon which such cause of action accrued; provided, however, that an action which relates to the sexual abuse of a minor, as defined in said section 4C of said chapter 260, shall be governed by said section 4C1/2 of said chapter 260. Disposition of any claim by the executive officer of a public employer shall not be competent evidence of liability or amount of damages.

Notwithstanding the provisions of the preceding paragraph, in the case of a city or town, presentment of a claim pursuant to this section shall be deemed sufficient if presented to any of the following: 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; provided, however, that in the case of the commonwealth, or any department, office, commission, committee, council, board, division, bureau, institution, agency or authority thereof, presentment of a claim pursuant to this section shall be deemed sufficient if presented to the attorney general.

The provisions of this section shall not apply to such claims as may be asserted by third-party complaint, cross claim, or counter-claim, or to small claims brought against housing authorities pursuant to sections twenty-one to twenty-five, inclusive, of chapter two hundred and eighteen; provided however, that no small claim shall be brought against a housing authority more than three years after the date upon which the cause of action arose.

Section 5. The executive officer of a public employer may arbitrate, compromise or settle any claim for damages under this chapter; provided, that any award, compromise or settlement in excess of two thousand five hundred dollars shall be made only with the prior approval of the public attorney for such public employer; provided further, however, that in any case where the public employer is the commonwealth, any award, compromise or settlement in excess of twenty thousand dollars shall be made only with the prior approval of the secretary of administration and finance. The executive officer shall not arbitrate, compromise or settle any such claim before it has been presented to him in writing or after six months have passed from the date upon which such claim was presented to him.

The acceptance by the claimant of any such award, compromise or settlement shall be in writing and shall, except when procured by fraud, be final and conclusive on the claimant, and shall constitute a complete release of any claim against the public employer or against the public employee whose negligent or wrongful act or omission gave rise to such a claim, and a complete bar to any action by the claimant against such public employer or public employee, by reason of the same subject matter.

Section 6. The public attorney shall defend all civil actions brought against a public employer or public employee of the commonwealth pursuant to this chapter. Service of process for such civil action shall be made upon the public attorney or, where no such public attorney has been employed for such purpose at the time service is made, service shall be made upon the executive officer of such public employer.

Section 7. Any award, compromise or settlement of a civil action brought under this chapter in excess of twenty thousand dollars which has been approved by a public attorney for a public employer, or, in the case where the public employer is the commonwealth, approved by the secretary of administration and finance, shall be made final only after approval of same by a judge of the superior court having jurisdiction over the action.

The acceptance by the claimant of any such award, compromise or settlement shall be in writing and shall, except when procured by fraud, be final and conclusive on the claimant, and shall constitute a complete release of any claim against the public employer or against the public employee whose negligent or wrongful act or omission gave rise to such claim, and a complete bar to any action by the claimant against such public employer or public employee, by reason of the same subject matter.

Section 8. A public employer may procure insurance for payment of damages incurred pursuant to this chapter. In the event that the public employer has in place insurance coverage for damages incurred pursuant to this chapter, and the amount of coverage by the insurer exceeds the damage limitations set forth in this chapter, the amount of liability shall be capped or limited to the larger amount.

Section 9. Public employers shall indemnify public employees, and the commonwealth shall indemnify persons holding office under the constitution, from personal financial loss, all damages and expenses, including legal fees and costs, if any, in an amount not to exceed $1,000,000 arising out of any claim, action, award, compromise, settlement or judgment by reason of an intentional tort, or by reason of any act or omission which constitutes a violation of the civil rights of any person under any federal or state law, if such employee or official or holder of office under the constitution at the time of such intentional tort or such act or omission was acting within the scope of his official duties or employment. No such employee or official, other than a person holding office under the constitution acting within the scope of his official duties or employment, shall be indemnified under this section for violation of any such civil rights if he acted in a grossly negligent, willful or malicious manner.-but the public employer shall be directly liable to the complainant/plaintiff for any amount(s) awarded (or agreed to by settlement-as to which the public employer shall have the right of approval or disapproval) for claims based on gross negligence or willful or malicious conduct.

For purposes of this section, persons employed by a joint health district, regional health district or regional board of health, as defined by sections twenty-seven A and twenty-seven B of chapter one hundred and eleven, shall be considered employees of the city or town in which said incident, claim, suit, or judgment is brought pursuant to the provisions of this chapter.

Section 9A. If, in the event a suit is commenced against a member of the state police or an employee represented by state bargaining unit five, by reason of a claim for damages resulting from an alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law, the commonwealth, at the request of the affected police officer, shall provide for the legal representation of said police officer.

The commonwealth shall indemnify members of the state police or an employee represented by state bargaining unit five, respectively, from all personal financial loss and expenses, including but not limited to legal fees and costs, if any, in an amount not to exceed one million dollars arising out of any claim, action, award, compromise, settlement or judgment resulting from any alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law; provided, however, that this section shall apply only where such alleged intentional tort or alleged act or failure to act occurred within the scope of the official duties of such police officer.

No member of the state police or an employee represented by state bargaining unit five shall be indemnified for any violation of federal or state law if such member or employee acted in a willful, wanton, or malicious manner.

Section 10. The provisions of sections one to eight shall be limited by the provisions set forth in the remainder of this Section 10:

(a) Any claim based upon an act or omission of a public employee when such employee is exercising due care in the execution of any statute or any regulation of a public employer, or any municipal ordinance or by-law, whether or not such statute, regulation, ordinance or by-law is valid;

(b) Neither public employers nor their employee shall be liable for most claims based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment. The exception shall be that claims based on Abuse of Discretion shall be decided on their merits.

(c) Public employers shall presumptively be jointly and severally liable with the involved public employee in claims arising out of intentional tort, including assault, battery, false imprisonment, false arrest, intentional mental distress, malicious prosecution, malicious abuse of process, libel, slander, misrepresentation, deceit, invasion of privacy, interference with advantageous relations or interference with contractual relations, and willful or malicious tortious conduct.

Public employers may avoid liability in such instances by demonstrating, by clear and convincing evidence, which neither the adequate training, nor adequate supervision, nor adequate internal controls, would likely have resulted in the tort(s) not occurring. Decisions on the merits of such defense(s) shall be viewed as issues of fact and decided by the trier or triers of fact.

(d) Neither public employers nor their employee shall be liable for damaged based on any claim arising in respect of the assessment or collection of any tax, or the lawful detention of any goods or merchandise by any law enforcement officer;

(e) Neither public employers nor their employee shall be liable for damages based on any claim based upon individual decisions made as to the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization; Conduct which is determined to be repetitive and having the likely effect of undermining a system of licensure or similar control shall be actionable.

(f) Neither public employers nor their shall be liable for damages based on any claim based upon the failure to inspect, or an inadequate or negligent inspection, of any property, real or personal, to determine whether the property complies with or violates any law, regulation, ordinance or code, or contains a hazard to health or safety, except as otherwise provided in clause (1) of subparagraph (j).

(g) Neither public employers nor their shall be liable for damages based on any claim based upon the failure to establish a fire department or a particular fire protection service, or if fire protection service is provided, for failure to prevent, suppress or contain a fire, or for any acts or omissions in the suppression or containment of a fire, but not including claims based upon the negligent operation of motor vehicles or as otherwise provided in clause (1) of subparagraph (j).

(h) Neither public employers nor their shall be liable for damages based on any claim based upon the failure to establish a police department or a particular police protection service, or if police protection is provided, for failure to provide adequate police protection, prevent the commission of crimes, investigate, detect or solve crimes, identify or apprehend criminals or suspects, arrest or detain suspects, or enforce any law, but not including claims based upon the negligent operation of motor vehicles, negligent protection, supervision or care of persons in custody, or as otherwise provided in clause (1) of subparagraph (j).

(i) Neither public employers nor their shall be liable for damages based on any claim based upon the release, parole, furlough or escape of any person, including but not limited to a prisoner, inmate, detainee, juvenile, patient or client, from the custody of a public employee or employer or their agents, unless gross negligence is shown in allowing such release, parole, furlough or escape.

(j) Neither public employers nor their shall be liable for damages based on any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer. This exclusion shall not apply to:

(1) any claim based upon explicit and specific assurances of safety or assistance, beyond general representations that investigation or assistance will be or has been undertaken, made to the direct victim or a member of his family or household by a public employee, provided that the injury resulted in part from reliance on those assurances. A permit, certificate or report of findings of an investigation or inspection shall not constitute such assurances of safety or assistance; and

(2) Any claim based upon the intervention of a public employee which causes injury to the victim or places the victim in a worse position than he was in before the intervention; and

(3) Any claim based on negligent maintenance of public property; (4) any claim by or on behalf of a patient for negligent medical or other therapeutic treatment received by the patient from a public employee.

Nothing in this section shall be construed to modify or repeal the applicability of any existing statute that limits, controls or affects the liability of public employers or entities

Section 11. If the judgment in any action brought under this chapter is in favor of the public employer, judgment for costs and execution thereon may issue in favor of the public employer, if the court finds the action brought by the claimant to have been frivolous or in bad faith, and final judgment on the action shall be a bar to any other or further action being brought on the same claim or subject matter.

Section 12. Claims against the commonwealth, except as otherwise expressly provided in this chapter or by any general or special provision of law, may be enforced in the superior court.

Section 13. Any city or town which accepted section one hundred I of chapter forty-one on or before July twentieth, nineteen hundred and seventy-eight, and any other city which accepts this section according to its charter, and any town which accepts this section in the manner hereinafter provided in this section shall indemnify and save harmless municipal officers, elected or appointed from personal financial loss and expense including reasonable legal fees and costs, if any, in an amount not to exceed one million dollars, arising out of any claim, demand, suit or judgment by reason of any act or omission, except an intentional violation of civil rights of any person, if the official at the time of such act or omission was acting within the scope of his official duties or employment.

This act shall be submitted for acceptance to the voters of each town at an annual town meeting in the form of the following question which shall be placed on the official ballot to be used for the election of town officers at said meeting:?''Shall the town vote to accept the provisions of section thirteen of chapter two hundred and fifty-eight of the General Laws which provides that the town shall indemnify and save harmless municipal officers, elected or appointed, from personal financial loss and expense including reasonable legal fees and costs, if any, in an amount not to exceed one million dollars, arising out of any claim, demand, suit or judgment by reason of any act or omission except an intentional violation of civil rights of any person under any law, if the official at the time of such act or omission was acting within the scope of his official duties or employment?'' If a majority of the votes in answer to said question is in the affirmative, said provisions shall thereupon take full effect, but not otherwise.

Section 14. For the purpose of satisfying liens for past due child support, securing repayment of public assistance benefits, and past taxes, a public employer shall comply with sections 24D, 24E, and 24F of chapter 175 and any regulations promulgated thereunder in the same manner as if it were a company authorized to issue policies of insurance pursuant to said chapter 175.

Section 15. Punitive Damages. In instances of gross negligence, abuse of discretion, intentional torts, or malicious or willful misconduct punitive damages, not to exceed 100% of the actual damages may be considered and awarded if reasonable.

Section 16. Consequences of failure of the public employer to make good faith efforts to settle. If the complainant/plaintiff under this statute prevails, to the extent of being awarded at least 50% of the damages claimed and, prior to the commencement of the trial the public employer never made a settlement offer in an amount equal to, or greater than the amount awarded- the complainant/plaintiff shall be entitled to a full pre-judgment interest, at an annual rate of 10% (compounded annually), from the date or dates of the tortious conduct until the date at which full payment of the award is made; and the complainant/plaintiff shall be awarded all reasonable costs incurred in successfully advancing his or her case, including but not limited to, all reasonable legal fees.

Name:	District/Address:	Date Added:
Paul Nordberg	3 Overhill Drive Auburn, MA 01501	1/20/2017