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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.

Latest News

Bristol Superior Court Issues Preliminary Injunction Decision in Favor of Fall River Mayor, Represented by Peter Mello and Matthew Feeney of Murphy, Hesse, Toomey & Lehane, LLP

On October 10, 2019, the Bristol Superior Court issued a decision denying the Fall River City Council’s motion for a preliminary injunction, through which the City Council sought to require Fall River Mayor Jasiel F. Correia II to relinquish control of his Office.  While the City Council argued that a certain provision of the Fall River Charter affords the Council broad discretion to take such action, in denying the City Council’s motion the Court rejected the Council’s interpretation, in part Read More

Legal Updates

Massachusetts Legislature Passes Post-Janus Bill Over Governor’s Veto

On September 19th, the Massachusetts Legislature overwhelmingly overrode Governor Charlie Baker’s veto of a union-friendly law. The bill was passed in response to the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME which relieved bargaining unit employees who were not members of the union of the obligation to pay dues to public sector unions. The Massachusetts bill allows unions to charge non-members certain fees, relieves unions of some of their obligations to those non-union employees, and expands unions’ access to public employees.

 

 

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