BILLY BERTRAND v. BOSTON POLICE DEPARTMENT (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant Boston police department (city) appeals from the denial of its motion to dismiss a tort claim from plaintiff Billy Bertrand's second amended complaint, due to untimely presentment under the Tort Claims Act, G. L. c. 258, § 4. A judge of the Superior Court determined that the common-law discovery rule, for the purpose of determining when a cause of action accrues, operated to reset the date of when the cause of action arose, making the presentment timely, and therefore denied the city's motion. As we determine that the presentment was untimely, we reverse.

Background. Bertrand brought a complaint for motor vehicle negligence after a police officer, employed by the city and driving a vehicle owned by the city, collided with his vehicle in August 2018. Three months after the crash, in November 2018, the plaintiff sent a letter to the city, notifying it of his intent to file suit and asking the city to preserve evidence. Three years later, in September 2021, the plaintiff filed his complaint, alleging a single count of motor vehicle negligence.

In February 2022, the plaintiff deposed the officer involved in the collision. At that time, the officer testified to his poor driving history, as well as to the city's awareness of that history. In June 2022, the plaintiff filed his first amended complaint, adding a count of negligent entrustment. The city moved to dismiss for lack of presentment. Ruling that the November 2018 letter was insufficient to put the city on notice of a negligent entrustment claim, the court dismissed that count, noting that the plaintiff could seek leave to amend after proper presentment.

In September 2022, the plaintiff sent a letter to the city's counsel to notify the city of his intent to add a claim of negligent entrustment to the pending suit for motor vehicle negligence. In May 2023, the plaintiff once again moved to amend his complaint to add the negligent entrustment count. Over the city's objection, the plaintiff's motion was allowed, and his second amended complaint was filed in November 2024. In December 2024, the city moved to dismiss the newly-added count on the basis that the presentment letter was sent beyond the two-year deadline under the Tort Claims Act. In May 2025, a judge of the Superior Court denied the city's motion, and this appeal followed.

Discussion. 1. Interlocutory appeal. As a preliminary matter, we note that this interlocutory appeal is properly before this court. The denial of a motion to dismiss based on defective presentment is immediately appealable due to the doctrine of present execution. See Rodriguez v. Somerville, 472 Mass. 1008, 1009-1010 (2015). The plaintiff does not dispute that the doctrine of present execution applies to allow the city to appeal; rather, the plaintiff argues that the city should have done so earlier, from the September 2022 order or the September 2024 order. As the city points out, it could not have appealed from the September 2022 order, because that order allowed the city's motion to dismiss, and therefore, the city was not an aggrieved party with anything to appeal. Likewise, the September 2024 order simply allowed the plaintiff's motion to amend his complaint; until he did so, any appeal from that order may have been deemed premature. Once the judge denied the city's motion to dismiss the newly amended complaint on the basis of untimely presentment, however, the order was immediately appealable as of right. See id.

2. Timeliness of presentment. The Tort Claims Act provides in part:

“[a] civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose ․”

G. L. c. 258, § 4. Section 4 sets forth a prerequisite for a plaintiff to recover when bringing a claim against a public employer. See Shapiro v. Worcester, 464 Mass. 261, 267-268 (2013). In requiring plaintiffs to present their claims prior to bringing an action, public employers enjoy advanced notice of the merits of the case. See Lodge v. District Attorney for the Suffolk Dist., 21 Mass. App. Ct. 277, 283 (1985). This notice allows a public employer to investigate the substance of the claims, settle disputes where possible, and prevent future claims through notice to executive officers. See id. To provide notice, these letters need not be exhaustive, but they must set out sufficient facts such that the public employer can properly analyze the claim. See Magliacane v. Gardner, 483 Mass. 842, 854 (2020).

There is no dispute on appeal that the November 2018 presentment letter gave notice only of the motor vehicle negligence claim and did not suffice to provide notice of a negligent entrustment claim. See Tambolleo v. West Boylston, 34 Mass. App. Ct. 526, 532-533 (1993) (letter alleging assault by police officer insufficient to put city on notice of negligent supervision claim). See also Richardson v. Dailey, 424 Mass. 258, 261-262 (1997) (letter describing actions of correctional officers in failing to prevent inmate's suicide insufficient to put city on notice of claim for negligent design of jail cell). There is also no dispute on appeal that the only presentment of the negligent entrustment claim was in September 2022, four years after the accident.

Although the Tort Claims Act requires presentment “within two years after the date upon which the cause of action arose,” G. L. c. 258, § 4, the plaintiff contends that he only discovered the basis for the negligent entrustment claim at the deposition of the officer in February 2022, so that the cause of action arose only then. The common-law discovery rule, for the purpose of determining when a cause of action accrues, provides that a cause of action accrues when the plaintiff discovers or with reasonable diligence should have discovered that (1) he has suffered harm; (2) his harm was caused by the conduct of another; and (3) the defendant is the person who caused that harm. See Davalos v. Bay Watch, Inc., 494 Mass. 548, 552 (2024).

Here, the plaintiff knew at the time of the accident in November 2018 that he had suffered harm and that his harm was caused by a police officer employed by the city. Although the plaintiff claims that he could not have known of the basis for the negligent entrustment claim until he learned of the officer's driving record and the city's knowledge of it during discovery, the information that he did know at the time of the crash was sufficient “to stimulate further inquiry on his part about the claim” and therefore to start the running of the clock. Krasnow v. Allen, 29 Mass. App. Ct. 562, 570 (1990). See Davalos, 494 Mass. at 553 (discovery rule provides that clock starts running when plaintiff “knew or should have known” that he has been harmed by defendant's conduct [citation omitted]). See also Albrecht v. Clifford, 436 Mass. 706, 714 (2002) (discovery rule “operates to toll a limitations period until a prospective plaintiff learns or should have learned that he has been injured” [citation omitted]).

The plaintiff's argument that he could not have discovered the basis for a negligent entrustment claim until he conducted discovery

“reflects a misunderstanding of the relationship between statutes of limitation, the ‘delayed discovery’ doctrine, and the ‘discovery’ devices authorized by our rules of civil procedure. In all cases the statute of limitations begins to run when the injured person has notice of the claim. The ‘notice’ required is not notice of every fact which must eventually be proved in support of the claim. These details are properly the subject of requests for discovery once an action is filed. Rather, ‘notice’ is simply knowledge that an injury has occurred.” (Citation omitted.)

White v. Peabody Constr. Co., 386 Mass. 121, 130 (1982). See id. (rejecting argument that plaintiff could not have known of negligent housing design and construction claims against defendant before plaintiff's lawyer received report detailing housing authority findings concerning leaking issues). If it were otherwise, a plaintiff's lack of diligence in pursuing discovery could serve to extend a defendant's exposure to liability indefinitely. See Bowen v. Eli Lilly & Co., 408 Mass. 204, 208 (1990) (plaintiff need not know that defendant is negligent or violated legal duty, only that defendant was likely cause of harm; once on notice, litigant has duty to discover whether potential claims are supportable).

This is not a case where the plaintiff was hindered from learning the relevant facts through misconduct of the defendant. See Krasnow, 29 Mass. App. Ct. at 570 (after ruling presentment untimely due to plaintiff's failure to discover information, court noted, “It would be different if there had been some conscious attempt by the Commonwealth to conceal” information). With reasonable diligence, the plaintiff should have timely “discovered” the specific facts underlying the negligent entrustment claim. See id. at 569-570 (where plaintiff sued defendant for medical malpractice after treatment at private hospital but did not learn that doctor was employed by Commonwealth until summary judgment, court held that plaintiff should have learned information in timely fashion, through reasonable diligence, such that discovery rule did not apply).

Accordingly, the city's motion to dismiss the negligent entrustment claim should have been allowed.

Conclusion. The order denying the city's motion to dismiss is reversed, and a new order shall enter dismissing count two of the second amended complaint.

So ordered.