EDWARD JAMES MCCARTHY THIRD v. TRENTON STEVEN ANDREWS (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal arises from a three-vehicle collision that occurred in the town of Chatham (town), involving a town police officer and two civilians. The plaintiff, Edward James McCarthy, III, filed a civil complaint in the Superior Court against Officer Joshua S. Wisniewski and the town (collectively, municipal defendants), as well as Trenton Steven Andrews and his father, Steven A. Andrews (collectively, Andrews defendants).² As pertains to this appeal, the plaintiff alleged that (1) Wisniewski negligently operated his police cruiser, causing a three-vehicle collision, (2) the town was vicariously liable for Wisniewski's conduct, and (3) the town negligently failed to install a stop sign and maintain visibility at a dangerous intersection, which contributed to the collision. After a judge of the Superior Court (first judge) allowed the municipal defendants’ motion for judgment on the pleadings, a second judge dismissed the Andrews defendants’ crossclaims for contribution against the municipal defendants and ordered the entry of separate and final judgment dismissing all claims against the municipal defendants. The plaintiff and the Andrews defendants appealed.

We vacate so much of the judgment as dismissed the plaintiff's negligence claims against Wisniewski and the town as his employer (counts III and IV of the plaintiff's first amended complaint), and the Andrews defendants’ crossclaims. We remand the case to the Superior Court for further proceedings consistent with this memorandum and order. The remainder of the judgment, dismissing the plaintiff's negligence claim against the town based on its failure to maintain a stop sign and clear sightlines at the intersection (count VII of the plaintiff's first amended complaint), is affirmed.

Background. The following facts are drawn from the plaintiff's first amended complaint. See UBS Fin. Servs., Inc. v. Aliberti, 483 Mass. 396, 405 (2019). On August 11, 2020, the plaintiff was driving north on Crowell Road and Wisniewski was driving south on Crowell Road, in a marked police cruiser. Both the plaintiff and Wisniewski were approaching the intersection of Crowell Road and Northgate Road. At the same time, Trenton was driving his father's vehicle east on Northgate Road toward the same intersection.

The town had previously acquired an easement over Northgate Road in 2003 and, as a result, it assumed responsibility for the road's maintenance and control. A stop sign previously installed on Northgate Road had been knocked down in a prior automobile accident at the same intersection, sometime around 2017, and had not been replaced before the collision at issue in this case. Overgrown trees and foliage on the corner lot located at the northerly corner of the Crowell Road and Northgate Road intersection obstructed the view of drivers approaching the intersection on Northgate Road, making it more difficult to see cars approaching the intersection on Crowell Road. In addition, the owners of the corner lot located at the southerly corner of the Crowell Road and Northgate Road intersection erected a six-foot high fence, which prevented cars approaching the intersection on Crowell Road from seeing cars approaching the intersection on Northgate Road.

Wisniewski approached the intersection at approximately forty-one miles per hour in a zone with a thirty miles per hour speed limit. Wisniewski, as a town police officer, was familiar with the intersection, including the absence of a stop sign on Northgate Road and the obstructed sightlines, but he did not reduce his speed as he approached the intersection. Trenton's view of oncoming traffic on Crowell Road was obstructed as he approached the intersection. As Trenton entered Crowell Road, Wisniewski's cruiser collided with the driver's side of Trenton's vehicle. Wisniewski applied his brakes 0.4 seconds before the impact. The impact caused both vehicles to cross the center line into the northbound lane, where they collided with the plaintiff's vehicle. The plaintiff sustained serious injuries due to the collision, including the loss of all five toes on his left foot.

The plaintiff asserted a negligence claim against Wisniewski. The plaintiff alleged that Wisniewski was acting outside the scope of his employment as a police officer because he was not pursuing or following any other vehicles, and had no other reason to be speeding, yet he was driving at an excessive speed and failed to slow as he approached the intersection, causing the collision. In the alternative, the plaintiff alleged that if Wisniewski was acting within the scope of his employment, then the town was vicariously liable for his negligence pursuant to G. L. c. 258, § 2. Finally, the plaintiff brought a separate negligence claim against the town, alleging that its failure to replace the stop sign and maintain the intersection to prevent obstructed sightlines contributed to the collision.

The municipal defendants moved for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), arguing that (1) the negligence claim against Wisniewski was barred by the Massachusetts Torts Claims Act (MTCA) because he was acting within the scope of his employment; (2) the town is immune from suit under the MTCA and could not be held liable under G. L. c. 258, § 2; and (3) the plaintiff's road defect claim was barred for failure to comply with the notice requirements of the road defect statute, G. L. c. 84, § 18.

At the nonevidentiary hearing on the municipal defendants’ motion, the parties disputed whether Wisniewski was acting within the scope of his employment at the time of the collision. The first judge suggested that the scope of employment issue presented disputed factual questions. In response, counsel for the municipal defendants asserted that this was a question of law, rather than a question of fact and requested leave to file a supplemental memorandum addressing that issue. The first judge granted that request.

Within their memorandum, the municipal defendants asserted that it was undisputed that Wisniewski was on duty, in uniform, operating a marked police cruiser, patrolling town roads, and “clearly motivated by a purpose to serve his employer” at the time of the collision. In fact, the plaintiff's first amended complaint was silent as to whether Wisniewski was on duty at the time of the collision. It asserted only that Wisniewski's conduct was inconsistent with his duties and responsibilities as a town police officer, and therefore outside the scope of his employment.

The first judge allowed the municipal defendants’ motion for judgment on the pleadings, concluding that (1) the negligence claim against Wisniewski was barred by G. L. c. 258, § 2, because he was acting within the scope of his employment; (2) the plaintiff's negligence claim against the town under G. L. c. 258, § 2, was barred by G. L. c. 84, which provided the exclusive remedy against the town; and (3) the road defect claim was time-barred because the plaintiff failed to provide timely notice under G. L. c. 84, § 18.

Following that ruling, the municipal defendants moved for judgment on the pleadings on the Andrews defendants’ contribution crossclaims. After the first judge denied the plaintiff's and the Andrews defendants’ motions for reconsideration, the second judge allowed the municipal defendants’ motion for judgment on the pleadings as to the Andrews defendants’ crossclaims, concluding that the dismissal of the plaintiff's claims against the municipal defendants also required dismissal of the Andrews defendants’ contribution crossclaims. Separate and final judgment was entered pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). The plaintiff and the Andrews defendants appealed.

Discussion. 1. Standard of review. In reviewing a motion for judgment on the pleadings, pursuant to Mass. R. Civ. P. 12 (c), “[w]e accept the truth of all well-pleaded facts alleged by, and draw every reasonable inference in favor of, the nonmoving party, to determine whether there are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief” (quotations and citations omitted). UBS Fin. Servs., Inc., 483 Mass. at 405. When a defendant files a motion for judgment on the pleadings, it is essentially a motion to dismiss for failure to state a claim. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002) (defendant's “motion under rule 12[c] is akin to a motion [to dismiss] under Mass. R. Civ. P. 12 [b] [6], 365 Mass. 754 [1974]”).

In this case, the first judge expanded the analysis by considering factual allegations outside the first amended complaint and the municipal defendants’ answers. By allowing the municipal defendants to file a supplemental memorandum that contained factual assertions beyond those alleged in the complaint (such as that Wisniewski was on duty at the time of the accident), and then relying on those factual assertions, the first judge effectively converted the municipal defendants’ motion for judgment on the pleadings into a motion for summary judgment under Mass. R. Civ. P. 56, 365 Mass. 824 (1974). See Mass. R. Civ. P. 12 (c) (“If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56”). Despite this inconsistency, our task as an appellate court is clear. Rules 12 (c) and 12 (b) (6) both require de novo review, essentially to determine whether there is any plausible suggestion of entitlement to relief, after resolving any questions or doubts in favor of the nonmoving party.³ See Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014) (when reviewing allowance of motion to dismiss, “[w]e accept as true the facts alleged in the plaintiffs’ complaint as well as any favorable inferences that reasonably can be drawn from them,” to determine if allegations plausibly suggest entitlement to relief); Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 726 (2013) (“A court may rule on a motion for judgment on the pleadings ․ if the answer admits all material allegations in the complaint such that there are no material issues of fact remaining to be determined”).

2. Scope of employment. In count III of the first amended complaint, the plaintiff alleged that Wisniewski was personally liable for the negligent operation of his vehicle, causing harm to the plaintiff. “Under the MTCA, public employees who commit negligent or wrongful acts or omissions while acting within the scope of [their] office or employment are immune from liability” (quotation and citation omitted). Doyle v. Quincy, 104 Mass. App. Ct. 761, 764 (2024). Thus, whether Wisniewski was acting within the scope of his employment at the time of the crash is a material factual question.

This inquiry is not always straightforward. “The scope of an employee's employment is not construed restrictively” (citation omitted). Clickner v. Lowell, 422 Mass. 539, 542 (1996). In determining whether a public employee acted within the scope of their employment, courts “apply the common-law test, which is based on principles of vicarious liability, respondeat superior, and agency, and which considers whether the act was in furtherance of the employer's work” (quotation and citation omitted). Berry v. Commerce Ins. Co., 488 Mass. 633, 636-637 (2021). Courts consider “three factors, each of which must be met to sustain the conclusion that the employee's conduct fell within the scope of the employment,” including “(1) whether the conduct in question is of the kind the employee is hired to perform; (2) whether it occurs within authorized time and space limits; and (3) whether it is motivated, at least in part, by a purpose to serve the employer” (quotations and citation omitted). Id. at 638.

“Ordinarily, whether an employee acted within the scope of employment presents a question of fact, although (as in Berry) the question of course may be resolved as a matter of law when the material facts are not disputed” (citation omitted). Pettiford v. Branded Mgt. Group, LLC, 104 Mass. App. Ct. 287, 293 n.7 (2024). In Berry, 488 Mass. at 640, the Supreme Judicial Court (SJC) determined that a police officer's extremely reckless driving was not within the scope of his employment because it was not motivated by a purpose to serve his employer. That officer was in a town-owned car, on a paid lunch break, at a department-mandated training, and chose to play a “game” by accelerating toward a group of other officers, slamming on his brakes, and then striking and seriously injuring a fellow officer. Id. The SJC held that “[t]he egregious nature of [the officer's] misconduct had no employment-based purpose, taking what otherwise might have been a close case and firmly placing it outside the realm of immunity of the [MTCA].” Id. at 640-641. This case presents a closer question than Berry. Nevertheless, “[e]xcept for very plain cases, the discrimination and determination [of circumstances relevant to determining whether the employee was acting within the scope of his employment] are for the jury as a question of fact.” Davis v. DelRosso, 371 Mass. 768, 771 (1977).

The plaintiff plausibly alleged in his complaint that Wisniewski was acting outside the scope of his employment, and the municipal defendants’ answer expressly disputed that claim. That, alone, is a dispute of material fact, making disposition on the pleadings inappropriate. The standard for a plausible allegation is “not a high bar.” Pettiford, 104 Mass. App. Ct. at 298, citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). The plaintiff's first amended complaint alleged that Wisniewski was driving over the speed limit, was not in pursuit of another car or otherwise performing any duty that would have required him to speed, approached an intersection known to be dangerous, and did not slow down. Accepting the truth of those allegations, as we must, they plausibly support a reasonable inference that Wisniewski was not acting within the scope of his employment at the time of the collision. See Berry, 488 Mass. at 637, and cases cited (“an act may be within the scope of employment even though it is tortious,” but “not all tortious conduct committed by an employee in connection with [their] work is within the scope of that employee's employment”).⁴ “In so ruling, we of course express no view of the merits of the claim, but only that, accepting the allegations of the complaint as true ․ the plaintiff's case survives a motion to dismiss.” Pettiford, supra.

Furthermore, there are other unresolved material factual questions. For example, notwithstanding the municipal defendants’ representation in their supplemental memorandum, it is not clear whether Wisniewski was on duty at the time of the collision. See Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 238 (2010) (“Generally speaking, travel to and from home to a place of employment is not considered to be within the scope of employment”). The complaint does not address whether Wisniewski was on duty. The municipal defendants’ naked assertion, in a pleading, that Wisniewski was on duty at the time of the collision does not resolve the question.

In short, because there are open material factual questions in dispute, judgment on the pleadings was inappropriate. See Mass. R. Civ. P. 12 (c). See also Mass. R. Civ. P. 12 (b) (6).

3. Town's liability. a. MTCA. In count IV, the plaintiff alleged that the town, as Wisniewski's public employer, was liable for his negligent operation of the vehicle that caused harm to the plaintiff. While the MTCA provides public employees with immunity for negligent acts committed within the scope of their employment, the MTCA establishes that public employers are vicariously liable for such negligent acts. See G. L. c. 258, § 2 (“Public employers shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of [their] office or employment”). Thus, if Wisniewski was acting within the scope of his employment at the time of the collision (as the town's supplemental memorandum asserted), and his negligence contributed to the collision, the town may be held liable. See id.

The first judge dismissed count IV on the grounds that the town could not be held liable as a public employer because the plaintiff's claim against the town was “based upon a defect on a public way” and thus, his “exclusive remedy against the [t]own must be had, if at all, under G. L. c. 84, § 15,” the road defect statute. While it is true that the plaintiff alleged certain road defects that materially contributed to the collision, and that the plaintiff missed the statutory thirty-day deadline to notify the town of his injuries, those facts do not preclude the town's wholly separate vicarious liability under the MTCA for Wisniewski's negligent acts committed within the scope of his employment.⁵

The town argues, apparently as an alternative ground for affirming the dismissal of the MTCA claim against it, that Wisniewski's conduct was not an “original cause” of the collision. General Laws c. 258, § 10 (j) provides that public employers will not be liable for “any claim based on an act ․ which is not originally caused by the public employer or any other person acting on behalf of the public employer.” An “original[ ] cause[ ]” requires an “ ‘affirmative act’ on the part of the public employer or employee, not a mere failure to act to prevent a harm by a third person or by a naturally occurring or private risk.” Theisz v. Massachusetts Bay Transp. Auth., 495 Mass. 507, 515 (2025), quoting Brum v. Dartmouth, 428 Mass. 684, 695 (1999).

To be sure, based on the allegations in the complaint, Wisniewski's conduct was not the sole cause of this three-vehicle collision, but the complaint clearly alleged that Wisniewski was an original cause of the collision. That is, the complaint alleged that the collision would not have occurred but for the fact that Wisniewski struck the Andrews defendants’ vehicle, causing both vehicles to cross into the opposite lane and strike the plaintiff's vehicle. Again, accepting the truth of these allegations, as we must, see UBS Fin. Servs., Inc., 483 Mass. at 405, we conclude that the plaintiff has sufficiently alleged that Wisniewski's negligence was an original cause of this collision so as to survive the town's rule 12 motion.

b. Road defect statute. In count VII, the plaintiff alleged that the town was liable for its negligent failure to maintain the intersection of Northgate Road and Crowell Road. Specifically, the plaintiff claimed that the town failed to install a stop sign and maintain proper visibility at a dangerous intersection, and that those failures materially contributed to the collision. The first judge ruled that the plaintiff's failure to provide notice of his injury to the town within thirty days, as required by G. L. c. 84, § 18, was fatal to this claim. We agree. See, e.g., Paddock v. Brookline, 347 Mass. 230, 231–232 (1964).

4. Andrews defendants’ crossclaims. Finally, the second judge allowed the municipal defendants’ motion for judgment on the pleadings as to the Andrews defendants’ crossclaims against them for contribution. The second judge, citing Berube v. Northampton, 413 Mass. 635 (1992), reasoned that because the plaintiff's original claims against the municipal defendants had been dismissed, the Andrews defendants’ crossclaims should also be dismissed. “Contribution claims are derivative and not new causes of action.” Id. at 638. Because we conclude that the plaintiff's claims against the municipal defendants were improperly dismissed and must be reinstated, it follows that the Andrews defendants’ crossclaims, which are derivative of the plaintiff's claims, must also be reinstated.

Conclusion. We vacate so much of the judgment dated February 28, 2025, as dismissed counts III and IV of the plaintiff's first amended complaint and the Andrews defendants’ crossclaims. The case is remanded to the Superior Court for further proceedings consistent with this memorandum and order. The remainder of the judgment dismissing count VII of the plaintiff's first amended complaint is affirmed.

So ordered.

FOOTNOTES

2.   Because the Andrews defendants share a last name, we refer to them individually by their first names. The plaintiff's claims against the Andrews defendants are not at issue in this appeal.

3.   We decline to review the dismissal as if it occurred on summary judgment, because Mass. R. Civ. P. 12 (c) requires that when “matters outside the pleadings” are considered, “all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Here, the plaintiff had no notice from the hearing that the municipal defendants’ supplemental memorandum would make assertions of fact and, once that memorandum was filed, the plaintiff could reasonably assume that the judge would either ignore such assertions or inform all parties that she would consider the motion as one under rule 56 and invite them to respond.

4.   See Clickner, 422 Mass. at 542 (factual question about whether police officer was acting within scope of employment where he was driving city-owned car, under influence, “on call,” on his way to scheduled shift, responding to page from subordinate when he drove across center line of road and collided with another car).

5.   In her decision, the first judge cited DiNitto v. Pepperell, 77 Mass. App. Ct. 247 (2010), to support her ruling that the road defect statute was the plaintiff's sole avenue for recovery against the town. DiNitto is distinguishable because, in that case, the plaintiff's only claim was that the town failed to cut back vegetation on public land to maintain visibility of a stop sign that would have prevented their car accident. Id. at 247-248. Here, the plaintiff has alleged that the collision was caused, at least in part, by a public employee's negligent driving, for which the town is vicariously liable under the MTCA.