FRUZZETTI v. DEPARTMENT OF CORRECTION (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Lee Fruzzetti, appeals from a judgment ³ of the Superior Court dismissing his complaint for negligence against the Department of Correction (department) without prejudice and against three department officials with prejudice. Agreeing with the Superior Court judge that the plaintiff may not sue individual government employees for ordinary negligence and that the plaintiff failed to wait the requisite six months after presenting his claim before filing suit, we affirm.⁴

1. Standard of review. “We review the allowance of a motion to dismiss de novo,” Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014), “accepting as true all well-pleaded facts alleged in the complaint ․ even if doubtful.” Osborne-Trussell v. Children's Hosp. Corp., 488 Mass. 248, 253 (2021), quoting Sudbury v. Massachusetts Bay Transp. Auth., 485 Mass. 774, 779 (2020); Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612, 614 (2019). To survive a motion to dismiss, the plaintiff must present, at the pleading stage, “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.” United Oil Heat, Inc. v. M.J. Meehan Excavating, Inc., 95 Mass. App. Ct. 579, 581 (2019), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

2. Massachusetts Tort Claims Act. The plaintiff clarified in March 2021 that he was advancing only claims of negligence. Under the Massachusetts Tort Claims Act, a public employer may be liable for a public employee's negligence, but the public employee is not personally liable unless the employee fails to cooperate with the public employer in defending the claim. G. L. c. 258, § 2. See Parker v. Chief Justice for Admin. & Mgt. of the Trial Court, 67 Mass. App. Ct. 174, 180 (2006) (“where only ordinary negligence is alleged, claims may not be asserted against the public employee, but may be brought against the public employer”). Accordingly, the motion judge properly dismissed all claims against the individual defendants.

To pursue a claim under the Massachusetts Tort Claims Act, a plaintiff must present the claim to the executive officer of the public employer, who then has six months to deny or settle the claim. G. L. c. 258, § 4. “Only if the claim is denied or the executive officer fails to settle, arbitrate, or compromise the claim within six months, may the claimant file suit.” Tivnan v. Registrar of Motor Vehicles, 50 Mass. App. Ct. 96, 103 (2000). Accord Estate of Gavin v. Tewksbury State Hosp., 468 Mass. 123, 128 (2014). Here, it is uncontested that, when the plaintiff filed suit, fewer than six months had passed since presentment, and the executive officer had not denied the claim. Accordingly, the motion judge properly dismissed the complaint against the department as premature. See Drake v. Leicester, 484 Mass. 198, 202 (2020).

Judgment affirmed.

FOOTNOTES

3.   The defendant filed his notice of appeal after the Superior Court ordered the dismissal of his complaint, but before a separate final judgment entered. Under these circumstances, the premature notice of appeal is effective. See Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679, 681 n.3 (2015).

4.   We see no infirmity in the plaintiff's notice of appeal. In it, the plaintiff states that he is appealing the orders entered on July 15, 2021, which is the date that the order dismissing his complaint was entered. See Mass. R. A. P. 3 (c) (1), as appearing in 481 Mass. 1603 (2019) (notice of appeal shall specify party appealing and “designate the judgment, decree, adjudication, order, or part thereof appealed from”). The department's description of the notice of appeal is not consistent with the notice of appeal in the plaintiff's appendix and the assembly of the record.