Public Transit Agency Held Liable for Assault by Bus Driver With Anger History

The Boston area’s public transportation agency is not immune from liability for injuries caused by an assault on a customer by one of its bus drivers who had a history that included anger management issues and a prior assault.

The Massachusetts Supreme Judicial Court has ruled that the Massachusetts Bay Transportation Authority (MBTA) can be held liable for negligence in hiring, promoting, retaining, and supervising its own employe.

The state’s highest court concluded that the law “does not provide immunity to a public employer for its misfeasance in placing an employee with known but untreated anger management issues that manifest in violent and hostile behaviors in a public-facing position.”

In response to a lawsuit by an MBTA customer who was violently assaulted by one of its bus drivers, the MBTA had moved for summary judgment on the ground that it was immune from liability under the Massachusetts Tort Claims Act (MTCA). A lower court and the appeals court denied the MBTA’s motion, and the MBTA sought review by the state’s high court which has now upheld the denial of summary judgment.

The Assault

On March 3, 2015, Matthew Theisz found himself lost in Lynn in blizzard conditions. When Theisz saw an MBTA bus, he attempted to wave it down at a bus stop to ask the driverr how he might find a bus to return to Boston. The bus was operated by a bus driver who the MBTA knew sometimes engaged in unsafe driving and, on occasion, interacted with the public and his supervisors in a hostile or insubordinate manner.

As the bus driver drove by the bus stop where Theisz stood waiting, Theisz rapped on the bus’s back door. The driver did not stop. When the driver eventually stopped the bus, Theisz was able to catch up; Theisz banged on the bus’s front door to get the driver’s attention. The driver opened the door. Lost, cold, and frustrated at the prospect of being stranded, Theisz first questioned why the bus driver had not stopped sooner. The driver responded by yelling at Theisz and leaving his driver’s seat to confront Theisz at the door. The driver kicked snow from the bottom of the bus at Theisz. Theisz uttered a profanity. This further triggered the bus driver’s anger; as the driver subsequently described it, he just “lost it.” Enraged, the driver lunged at Theisz, escalating the encounter. Theisz retreated, but the driver gave chase and when he caught up, began punching and kicking Theisz. The beating was so severe that Theisz suffered a traumatic brain injury that has left him “permanently and totally disabled from his usual employment.”

The court noted that the legislature has protected public employers against being held vicariously liable for a public employee’s intentional assault. However, courts have previously determined that a public employer can be liable under the MTCA where it commits a breach of the ordinary duty to exercise reasonable care in the selection of an employee to interact with the public by choosing to place an employee in that position despite knowing of the employee’s untreated, assaultive behaviors.

During his tenure at the MBTA, the driver sometimes engaged in unsafe driving and, on occasion, interacted with the public and his supervisors in a hostile or insubordinate manner this case, In an incident in 2013, the bus driver left the bus unattended as he attacked a passenger. The bus struck three parked cars, endangering lives and property in the bus’s uncontrolled path. The MBTA suspended the driver for one day after which he resumed his regular activities.

In 2014, the bus driver again engaged in misconduct in the course of his employment. That incident that involved obstructing traffic and not cooperating with a police officer led to his arrest. The record cites a few other incidents of misconduct as well.

Tort Claims Act

The state’s tort claims act (MTCA) permits individuals harmed by the tortious conduct of public employees to seek compensation from the Commonwealth and its political subdivisions. It provides, in relevant part, that a public employer shall be liable for personal injury caused by the negligent or wrongful act of any public employee while acting within the scope of his employment, “in the same manner and to the same extent as a private individual under like circumstances.”

While the statute allows the public employer to be held liable for the tortious conduct of its employees, it retains certain protections for public employers including a cap on the damages that can be assessed. The statute also shields government employers from vicarious liability for the intentional torts of its employees.

In addition, one MTCA provision generally provides immunity when the tort claim is based on a public employee’s failure to prevent harm from third persons or from naturally occurring or private risks, unless the public employee or public employer “originally caused” the situation giving rise to the risk.

Courts have concluded that the language “originally caused” 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. In addition, in order to protect public employers against claims where the affirmative act is “too remote as a matter of law”, the “affirmative act” must have “materially contributed to creating the specific ‘condition or situation’ that resulted in the harm.”

MBTA Argument

The MBTA contended that it was immune because Theisz’s claim was not based on an affirmative act; instead, the MBTA argued, his central claim was grounded on the MBTA’s failure to prevent harm by the bus driver. But the court said the MBTA’s argument rests on a “misapprehension” of case law. Theisz was not harmed by a nongovernmental actor. Instead, Theisz’s harm was at the hands of an on-duty public employee and his claim is based on the public employer’s negligence in hiring, promoting, supervising, and retaining its own employee. “Nothing in the state’s case law supports the MBTA’s argument that the law provides refuge in such a situation,” the ruling asserts.

Indeed, the opinion continues, the language provides immunity where the claim regards a “condition or situation” not “originally caused” by the public employer — that is, where a nongovernmental actor or a naturally occurring or private risk (as opposed to a public employee) directly causes the harm.

While the MBTA is not vicariously liable for the bus driver’s intentional assault, the claims at issue are based on the MBTA’s own failure to exercise reasonable care in its supervision of the bus driver “where the supervisory officials allegedly had, or should have had, knowledge of a public employee’s assaultive behavior.” Thus it is the supervisors’ conduct, rather than the employee’s intentional conduct, that is the true focus of the case.

“A private employer who fails to exercise reasonable care in hiring, training, supervising, and retaining such public-facing employees can be liable for its negligence in this regard. Contrary to the MBTA’s assertion, the law provides no basis to treat public employers different from private employers in this regard,” states the opinion written by Justice Dalila Argaez Wendlandt.

The opinion concludes that the record on summary judgment would support a fact finder’s reasonable conclusion that the MBTA’s affirmative act — its own decision to schedule the driver to operate the bus route, without training him to manage his anger — originally caused Theisz’s harm.

Topics
Personal Auto