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.
Attorney Felicia Vasudevan, a partner at Murphy, Hesse, Toomey & Lehane, LLP, received a favorable decision on behalf of her client, Marshfield Public Schools. The Plaintiff appealed the district court’s judgement that upheld a decision of the Massachusetts Bureau of Special Education Appeals (“BSEA”). However, as the notice was filed more than 30 days after entry, the First Circuit ultimately dismissed the appeal for being untimely. The Plaintiff also appealed the district court’s order, denying her motion to vacate. Read More
Following our Alert from March 16, 2023, Civility is Dead – The Supreme Court Rules Municipal Control of Public Speak Limited to Reasonable Time/Place/Manner Restrictions, which discussed the holding to the Supreme Judicial Court’s decision in Barron v. Kolenda and the Town of Southborough (SJC-13284), we promised to bring you more detailed guidance on developing a Public Speak policy for your public body or municipality. The Barron case involved a constitutional challenge to the Town of Southborough’s public comment policy, which attempted to impose a code of civility on members of the public who participated in public comment before public bodies. In Barron, the court interpreted the state constitution to mean that public bodies may request, but not require, that public commentators be respectful and courteous. Instead, a public body may set restrictions on reasonable time, place, and manner comments to ensure that the meeting retains an orderly and peaceable manner.