The Text of a Bylaw/Ordinance Itself Does Not Determine What is a Discretionary Function

Towns are exempt from liability under the Massachusetts Tort Claims Act (MTCA) for claims based upon performance of “discretionary functions” of the Town. A new Massachusetts Appeals Court decision reaffirmed the principle that exempt discretionary functions must involve “policy making or planning,” and evaluated the effect of an ordinance that gave discretion to a municipal employee over particular job functions. In Citation Insurance Co. v. City of Chicopee, No. 24-P-309 (Appeals Court Apr. 9, 2025), the Court found that the City’s Tree Warden was not performing a discretionary function when he negligently failed to remove a tree in a dangerous condition that later fell and damaged the plaintiff’s house, notwithstanding the City ordinance provided that “"[t]he discretion and sound judgment of the Tree Warden alone determines whether a tree shall be removed.” The language in the ordinance was insufficient to transform the Tree Warden’s conduct into a discretionary function for purposes of the MTCA because the duty to maintain existing City trees did not involve policy making or planning.