Re-Confirmation That Municipal Employers Can be Liable When an Employee Commits an Intentional Tort

The Massachusetts Tort Claims Act does not exempt public employers from liability for negligently hiring, promoting, supervising, and retaining a public employee who commits an affirmative act to injure a member of the public.  

In Theisz v. MBTA, No. SJC-13624, 2024 WL 5465208 (Mass. Mar. 14, 2025), the SJC considered the MBTA’s liability when, knowing that a certain bus driver had a history of hostile and violent interactions with members of the public during his employment with the MBTA, the MBTA continued to assign that employee to a public-facing role driving a bus route in Lynn. Theisz, a member of the public, was attacked by the driver when Theisz flagged his bus down to ask for directions.  

The MBTA argued it was exempt from liability by Section 10(j) of the Massachusetts Tort Claims Act, which exempts public employers from liability for “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.” The SJC found that this was not a mere failure of the MBTA to act. Here, the MBTA’s own employee had committed the affirmative act and “originally cause” the harmful consequences. Section 10(j) instead is intended to apply to situations where third parties not employed by the public employer originally cause the dangerous conditions.  

While the MBTA was not vicariously liable for the driver’s assault of the plaintiff, it was liable for its own negligence in continuing to employ him in a public-facing position with no remedial training despite his known anger management problems.