Murphy, Hesse, Toomey & Lehane Attorney Files Amicus Brief with the Supreme Judicial Court on Behalf of the Massachusetts Municipal Lawyer’s Association (“MMLA”)
Attorney Cindy Amara recently filed an amicus brief with the Supreme Judicial Court on behalf of the Massachusetts Municipal Lawyer’s Association (“MMLA”), the oldest and largest bar association dedicated to the practice of municipal law in the Commonwealth in the matter Magliacane v. Gardner. The case arises out of a Superior Court suit brought against the City of Gardner by a resident who claims she had to replace a hot water heater and heating coils due to corrosion caused by City water. She sued the City, alleging it was negligent and had breached certain warranties pertaining to the sale of a product – i.e., water. The City argued that the plaintiff’s right of recovery (if any) was controlled by the exclusive remedy provisions of the Massachusetts Tort Claims Act, M.G.L. c. 258, §§ 1, et seq. (“MTCA”) and moved to dismiss the plaintiff’s Complaint. Ms. Magliacane unsuccessfully argued that the provisions of the MTCA do not apply to a city or town engaged in the sale of water. The Superior Court allowed the City’s motion to dismiss, agreeing that the MTCA applied to the municipal sale of water and the plaintiff filed an appeal to the Massachusetts Appeals Court. Subsequently, the Supreme Judicial Court ordered the case transferred sua sponte to its own docket and solicited amicus briefs on the question of whether the Massachusetts Tort Claims Act applies to claims by municipality residents of injury or damage stemming from the municipality’s distribution of water to the residents; whether, by selling and distributing water, a municipality is engaging in commerce rather than performing a government function pursuant to the act.
The MMLA’s primary concern in this case is to ensure that municipalities throughout the Commonwealth can rely on the protections and predictability afforded by the Massachusetts Tort Claims Act as written by the legislature and are not subjected to tort claims based on whether a municipality is engaging in commerce rather than performing a governmental function. This issue is of great importance to all cities, towns and public entities (including water districts) within the Commonwealth. If so-called “non-governmental” activity is no longer protected under the MTCA, then cities, towns, water districts and indeed all public employers who engage in such activity will be subject to unlimited tort liability – unprotected by the presentment requirement, the $100,000 statutory cap or the immunities preserved in Section 10 – whenever someone suffers injury or harm as a result. Public employees, who currently enjoy personal immunity when they are acting within the scope of their employment at the time of any accident or incident, will be personally liable for injuries or damages caused by any acts or omissions committed while engaged in such activity if so-called “non-governmental” activity is removed from the MTCA.
Dr. Desmond’s first encounter with John Lewis was at the March on Washington for Jobs and Freedom in 1963. At just 18 years old he was one of roughly 250,000 people from across America who gathered at the nation’s capital to attend the infamous march where, on the steps of the Lincoln Memorial, Dr. Martin Luther King, Jr., delivered his emotional and prophetic “I Have a Dream” speech. Among other notables who spoke, Desmond recalls that a young, 23-year-old John Lewis delivered a moving and emotional call for racial and economic justice and passage of overdue civil rights legislation.
National Labor Relations Board Changes Legal Approach to Employee’s Use of Profane, Racist, and Sexually Harassing Speech in Protected Activity
On July 21, 2020, the National Labor Relations Board (“the Board”) changed its analysis towards an employee’s use of verbally offensive behavior in the context of protected activity under Section 7 of the National Labor Relations Act (“the Act” or “NLRA”) in the following decision: General Motors, LLC, No. 14-CA-197985, 369 NLRB No. 127 (2020).