Making an Injury Claim Under the Massachusetts Tort Claims Act

When someone else's careless action causes you harm in Massachusetts—you're rear-ended at a stoplight, or you slip in a puddle of water left on a lobby floor, for example—you can usually file a personal injury lawsuit over what happened. But what if the vehicle that rear-ended you was owned by the city, or that lobby floor was in a state government building?

If you think the state or local government is to blame for your injury in Massachusetts, any claim you end up making will need to play by a special set of rules dictated by the Massachusetts Tort Claims Act.

What Is the Massachusetts Tort Claims Act?

It's a centuries-old fact that every state is entitled to immunity from most kinds of lawsuits that might be filed against it. But every state has also passed laws that act as partial "waivers" of this immunity, allowing citizens and residents to hold the government accountable for certain harmful actions.

The Massachusetts Tort Claims Act (starting at Mass. Gen. Laws Chapter 258, Section 2) is one of these laws, allowing claims for compensation against the government at the state and local level when the negligence of any public employee who's acting in the scope of their job causes:

• injury
• property damage, or
• death.

(Note: "tort" is just a legal term for a harmful action, including one that results in injury or damage to property.)

What Kinds of Claims Are Covered by the Massachusetts Tort Claims Act?

The Massachusetts Tort Claims Act opens a fairly wide door when it comes to the kinds of incidents that could give rise to a claim against the state or local government. The Act basically makes a government body liable for the negligence of a public employee, "in the same manner and to the same extent as a private individual" would be liable, as long as the employee was acting in the scope of their duty. Mass. Gen. Laws Ch. 258, Sec. 2.

So, for example, the following types of incidents (among many other possibilities) might lead to a viable claim under the Massachusetts Tort Claims Act:

• a traffic accident involving a government-owned vehicle
• a slip and fall or other mishap caused by negligent maintenance or some other unsafe condition on government-owned property, and
• medical malpractice committed by a health care professional who's employed at a hospital owned by the Commonwealth of Massachusetts (the state) or a county.

How Do I File a Claim Under the Massachusetts Tort Claims Act?

Claims against both municipal and state governments in Massachusetts must first be "presented" to the employer in charge of the potentially negligent employee.

At the state level, claims against the Commonwealth of Massachusetts will usually be presented to the Office of the Massachusetts Attorney General, whose website offers an Presentment Claim Form that you can fill out submit online, along with any attachments that help support your claim.

Claims against a city, county, or town can be presented to the "executive officer" of the municipality, including (depending on the circumstances) the office of the mayor, city manager, town manager, corporation counsel, city solicitor, town counsel, city clerk, or town clerk. Do an online search (i.e. "injury claim against city of Boston") to see if the municipality has an online form you can use, and/or instructions on the claim submission process.

What's the Deadline for Presenting a Claim Under the Massachusetts Tort Claims Act?

Whether your claim is against the Commonwealth of Massachusetts, or against a local municipality like a city or county, it needs to be presented within two years of the date of your injury or other harm.

What Happens After I Present My Massachusetts Tort Claims Act Claim?

Once your claim is presented to the public body, they'll have six months to investigate your claim and either pay it (through settlement) or formally deny it.

If your claim is formally denied, or if six months have passed since you presented your claim and you've received no response (which amounts to a denial of the claim under the law), you can move forward with filing a lawsuit against the government body you filed the claim with.

Filing a Lawsuit Under the Massachusetts Tort Claims Act

Any lawsuit filed after denial of a Massachusetts Tort Claims Act claim must be filed in court within three years of the incident that led to the injury or other harm.

If your lawsuit is against a city, county, or town, you'll likely file it in Massachusetts Superior Court:

• in the county where you live, or
• in the county where the government body you filed your claim against is located.

If your lawsuit is against the Commonwealth of Massachusetts, your choices will likely be filing:

• in the Superior Court for the county where you live, or
• in Suffolk County (where the capital of Boston is located).

These rules on where to file a lawsuit under the Massachusetts Tort Claims Act are set by Mass. Gen. Laws Ch. 258, Sec. 3.

What If a Pothole or Bad Road Injured Me or Damaged My Car In Massachusetts?

If you think the poor condition of a Massachusetts highway, road, or sidewalk caused you injury or property damage (including incidents involving potholes) you won't be making a claim under the Massachusetts Tort Claims Act. Instead, you'll likely need to file what's often called a "Roadway Defect Claim."

Depending on which government entity oversees the highway, road, or sidewalk where the incident occurred, your options are:

• a claim against the Commonwealth of Massachusetts, but only for injury caused by a roadway defect (claims for property damage over roadway defects aren't possible at the state level), or
• a claim against a city, county, or town in Massachusetts (you can make a claim for both injury and/or property damage over roadway damage against a municipality).

The process involves:

• figuring out whether the incident occurred on a state highway; or which city, county, or town is charged with maintaining the stretch of road where the incident occurred, and
• giving the proper government body notice of the incident, which means providing them with your name and place of residence, and the details of the injury or damage (time, place, and cause).

You'll need to send this notice within only 30 days of the injury or damage, and let the government entity investigate the incident and decide whether or not their own negligence played a part in your claimed harm. (For details on roadway defect claims at the state level, see the Massachusetts Department of Transportation's How to File a Claim page.)

If the government body decides to not pay the claim or otherwise offer a settlement, you're free to file a lawsuit over the matter in the Massachusetts court system, but you'll need to do so within three years of the roadway defect incident, and you'll need to decide whether pursuing a lawsuit is worth it, given the low "caps" on available compensation in these kinds of cases:

• at the state level, compensation for injuries caused by roadway defects is capped at $4,000 (remember, you can't make a claim for property damage against the state over a roadway defect), and
• at the city/county/town level, the total per-claim liability of a municipality is capped at $5,000 for roadway defect claims.

The "Roadway Defect Claim" procedure is spelled out at Mass. Gen. Laws Ch. 81, Sec. 18. and Mass. Gen. Laws Ch. 84, Sec. 15.

Is There a Cap on Damages Under the Massachusetts Tort Claims Act?

Yes, the Act declares that no public employer (meaning the Commonwealth of Massachusetts or any municipality in the state) can be held liable for any amount of compensation ("damages" in the language of the law) over $100,000 on a single claim. That includes a settlement of the claim, or a court judgment.

The Act also states that there can be no award for punitive damages against the government, or for any interest that might accrue between the claimant's harm and any settlement or judgment.

One exception to this cap is for claims for "serious bodily injury" against the Massachusetts Bay Transportation Authority, which operates commuter trains, subways, buses, and ferries in and around Boston. There's no statutory cap on the amount of compensation available in these kinds of claims.

Getting Help With an Injury Claim Against the Government In Massachusetts

If your injuries were fairly minor and you're comfortable handling the "presentment of claim" requirement under the Massachusetts Tort Claims Act, you might not need a lawyer's help with your claim. But if the government has already denied your claim, or if you'd just rather hand everything off to an experienced professional at the outset, hiring a lawyer could be the right move. Learn more about when you need a lawyer for a personal injury claim, and get tips on finding the right injury lawyer.