Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1526 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	HOUSE DOCKET, NO. 2831 FILED ON: 1/19/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1526
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Carmine Lawrence Gentile, (BY REQUEST)
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to repeal and replace G.L. c. 258.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Henry P. Sorett58 Longfellow Road, Sudbury,
16	16	Massachusetts 01776
17	17	1/19/2023 1 of 19
18	18	HOUSE DOCKET, NO. 2831 FILED ON: 1/19/2023
19	19	HOUSE . . . . . . . . . . . . . . . No. 1526
20	20	By Representative Gentile of Sudbury (by request), a petition (accompanied by bill, House, No.
21	21	1526) of Henry P. Sorett relative to claims and indemnity procedures for the Commonwealth,
22	22	municipalities, counties and districts and their officers and employees. The Judiciary.
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act to repeal and replace G.L. c. 258.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 G.L. c. 258, GL c. 84 s15 and G.L. c. 81 s18 shall be repealed and replaced by the
32	32	2following:
33	33	3 Section 1: All persons harmed by the Commonwealth or by any city, town, county or any
34	34	4other governmental agency or their employees or agents shall be entitled to prompt, fair and
35	35	5reasonable compensation for their losses. No officers, employees or agents of any city, town,
36	36	6county or any other governmental agency shall be personally liable for any such claims and shall
37	37	7be indemnified for their losses and defense costs by their employer. Provided, however, there
38	38	8shall be no right to indemnification if the acts at issue were knowing, willful, intentional, corrupt
39	39	9or committed with wanton disregard for the lives or safety of others. Employers shall have the
40	40	10discretion to indemnify employees for acts which were knowing, willful, intentional or
41	41	11committed with wanton disregard for the lives or safety of others. Any collective bargaining
42	42	12agreement requiring indemnification for such acts shall be null, void and unenforceable. 2 of 19
43	43	13 Section 2: Definitions
44	44	14 As used in this chapter the following words shall have the following meanings:—
45	45	15 ''Acting within the scope of office or employment'', Every person acting within the scope
46	46	16of that person’s employment and acting in the performance of any lawfully ordered military
47	47	17duty, in the case of an officer or soldier of the military forces of the commonwealth,
48	48	18 'Executive officer of a public employer'', the secretary of an executive office of the
49	49	19commonwealth, or in the case of an agency not within the executive office, the attorney general;
50	50	20the adjutant general of the military forces of the commonwealth; the county commissioners of a
51	51	21county; the mayor of a city, or as designated by the charter of the city; the select board of a town
52	52	22or as designated by the charter of the town; and the board, directors, or committee of a district in
53	53	23the case of the public employers of a district, in the case of the Massachusetts Bay
54	54	24Transportation Authority, its general manager and rail and transit administrator, and, in the case
55	55	25of any other public employer, the nominal chief executive officer or board.
56	56	26 ''Public attorney'', the attorney who shall defend all civil actions brought against a public
57	57	27employer pursuant to this chapter. In the case of the commonwealth it shall be the attorney
58	58	28general; in the case of any county it shall be the district attorney as designated in sections twelve
59	59	29and thirteen of chapter twelve; in the case of a city or town it shall be the city solicitor or town
60	60	30counsel, or, if the town has no such counsel, an attorney employed for the purpose by the select
61	61	31board; in the case of a district it shall be an attorney legally employed by the district for that
62	62	32purpose; and, in the case of the Massachusetts Bay Transportation Authority, the attorney shall
63	63	33be the general counsel. A public attorney may also be an attorney furnished by an insurer 3 of 19
64	64	34obligated under the terms of a policy of insurance to defend the public employer against claims
65	65	35brought pursuant thereto.
66	66	36 '
67	67	37 'Public employee'', elected or appointed, officers or employees of any public employer,
68	68	38whether serving full or part-time, temporary or permanent, compensated or uncompensated, and
69	69	39officers or soldiers of the military forces of the commonwealth. For purposes of this chapter, the
70	70	40term ''public employee'' shall include an approved or licensed foster caregiver with respect to
71	71	41claims against such caregiver by a child in the temporary custody and care of such caregiver or
72	72	42an adult in the care of such caregiver for injury or death caused by the conduct of such caregiver;
73	73	43provided, however, that such conduct was not intentional, or wanton and willful, or grossly
74	74	44negligent. For this purpose, a caregiver of adults means a member of a foster family, or any other
75	75	45individual, who is under contract with an adult foster care provider as defined and certified by
76	76	46the division of medical assistance.
77	77	47 ''Public employer'', the commonwealth and any county, city, town, educational
78	78	48collaborative, or district, including the Massachusetts Department of Transportation, the
79	79	49Massachusetts Bay Transportation Authority, any duly constituted regional transit authority and
80	80	50the Massachusetts Turnpike Authority and any public health district or joint district or regional
81	81	51health district or regional health board established pursuant to the provisions of section twenty-
82	82	52seven A or twenty-seven B of chapter one hundred and eleven, and any department, office,
83	83	53commission, committee, council, board, division, bureau, institution, agency or authority thereof
84	84	54including a local water and sewer commission including a municipal gas or electric plant, a
85	85	55municipal lighting plant or cooperative which operates a telecommunications system pursuant to 4 of 19
86	86	56section 47E of chapter 164, department, board and commission, which exercises direction and
87	87	57control over the public employee, but not a private contractor with any such public employer, the
88	88	58Massachusetts Port Authority, or any other independent body politic and corporate. With respect
89	89	59to public employees of a school committee of a city or town, the public employer for the
90	90	60purposes of this chapter shall be deemed to be said respective city or town.
91	91	61 ''Serious personal injury'', bodily injury which results in a permanent or temporary
92	92	62disfigurement, or loss or impairment of a bodily function, limb or organ, debilitating emotional
93	93	63or psychological harm, or for which medical costs or lost wages exceed $2,500.00, or death.
94	94	64 “Serious property damage or financial harm”, damage to the property of any person,
95	95	65corporation or other legally created entity of a value of greater than $2,500 provided however
96	96	66that this minimum limit shall not apply to motor vehicles or personal residences or loss or money
97	97	67or property.
98	98	68 Section 3: Liability; exclusiveness of remedy; cooperation of public employee;
99	99	69subsequent actions; representation by public attorney
100	100	70 Public employers shall be liable for injury or loss of property or personal injury or death
101	101	71caused by the negligent or wrongful act or omission of any public employee while acting within
102	102	72the scope of that person’s office or employment, in the same manner and to the same extent as a
103	103	73private individual under like circumstances, except that public employers shall not be liable to
104	104	74levy of execution on any real and personal property to satisfy judgment except as provided for
105	105	75herein, and shall not be liable for punitive damages. The remedies provided by this chapter shall
106	106	76be exclusive of any other civil action or proceeding by reason of the same subject matter against
107	107	77the public employer or, the public employee or their estates whose negligent or wrongful act or 5 of 19
108	108	78omission gave rise to such claim, and no such public employee or the estate of such public
109	109	79employee shall be liable for any injury or loss of property or personal injury or death caused by
110	110	80the employee’s negligent or wrongful act or omission while acting within the scope of that
111	111	81employee’s office or employment except as provided for herein; provided, however, that a public
112	112	82employee shall provide reasonable cooperation to the public employer in the defense of any
113	113	83action brought under this chapter. Failure to provide such reasonable cooperation on the part of a
114	114	84public employee shall cause the public employee to be jointly liable with the public employer, to
115	115	85the extent that the failure to provide reasonable cooperation prejudiced the defense of the action.
116	116	86Information obtained from the public employee in providing such reasonable cooperation may
117	117	87not be used as evidence in any disciplinary action against the employee. Final judgment in an
118	118	88action brought against a public employer under this chapter shall constitute a complete bar to any
119	119	89action by a party to such judgment against such public employer or public employee by reason of
120	120	90the same subject matter. The prevailing plaintiff may undertake all actions necessary to enforce a
121	121	91final judgment.
122	122	92 Notwithstanding that a public employee shall not be liable for negligent or wrongful acts
123	123	93as described in the preceding paragraph, if a cause of action is improperly commenced against a
124	124	94public employee of the commonwealth alleging injury or loss of property or personal injury or
125	125	95death as the result of the negligent or wrongful act or omission of such employee, said employee
126	126	96may request representation by the public attorney of the commonwealth. The public attorney
127	127	97shall defend the public employee with respect to the cause of action at no cost to the public
128	128	98employee; provided, however, that the public attorney determines that the public employee was
129	129	99acting within the scope of the employee’s office or employment at the time of the alleged loss,
130	130	100injury, or death, and, further, that said public employee provides reasonable cooperation to the 6 of 19
131	131	101public employer and public attorney in the defense of any action arising out of the same subject
132	132	102matter. If, in the opinion of the public attorney, representation of the public employee, under this
133	133	103paragraph would result in a conflict of interest, the public attorney shall not be required to
134	134	104represent the public employee. Under said circumstances, the commonwealth shall reimburse the
135	135	105public employee for reasonable attorney fees incurred by the public employee in defense of the
136	136	106cause of action; provided, however, that the same conditions exist which are required for
137	137	107representation of said employee by the public attorney under this paragraph.
138	138	108 Notwithstanding the foregoing, a public employee may be held to be personally liable for
139	139	109intentionally causing harm or by causing harm knowingly, wantonly and in willful disregard of
140	140	110the lives, safety or property of any person.
141	141	111 Section 4: Venue; jurisdiction
142	142	112 All civil actions brought against a public employer on a claim for damages cognizable
143	143	113under this chapter shall be brought in the county where the claimant resides or in the county
144	144	114where such public employer is situated, except that in the case of the commonwealth such civil
145	145	115actions shall be brought in the county where the claimant resides or in Suffolk county. The
146	146	116superior court shall have jurisdiction of all civil actions brought against a public employer. The
147	147	117district court and housing court shall have jurisdiction of actions brought against housing
148	148	118authorities pursuant to sections twenty-one to twenty-five, inclusive, of chapter two hundred and
149	149	119eighteen. The District Court shall also have jurisdiction for all claims having a value of less than
150	150	120$100,000.00. The District Court small claims jurisdiction and procedures shall be available to
151	151	121claimants whose claims have a value of less than $7,000.00. 7 of 19
152	152	122 In the event that a suit is filed in the wrong court, that court shall transfer the suit to court
153	153	123having actual jurisdiction and the court shall promptly give notice to all parties.
154	154	124 Section 5 Instituting Claims; limitations of actions:
155	155	125 Any person who claims to have suffered injury or harm due to the negligence, acts or
156	156	126omissions of a public employee may commence an action in the Courts of the Commonwealth by
157	157	127filing a complaint. There shall be no requirement to make a presentment prior to filing suit.
158	158	128Service of process shall be made, in the case of a city on the mayor, city clerk, city counsel or
159	159	129public attorney, in the case of a town on the town manager, chair of the select board, town clerk,
160	160	130public attorney or town counsel, in the case of Mass. Port and the MBTA on the chief executive
161	161	131officer, agency counsel, public attorney or chair of the board of directors, in the case of any other
162	162	132agency or board, on its chief executive officer or general counsel. It shall not be a defense that
163	163	133service was not made on the proper person within a public employer so long as that entity has
164	164	134been given actual knowledge of the suit.
165	165	135 No civil action may be brought more than three years after the date on which the cause of
166	166	136action accrued; provided, however, that an action which relates to the sexual abuse of a minor, as
167	167	137defined in said section 4C of said chapter 260, shall be governed by section 4C1/2 of said chapter
168	168	138260.
169	169	139 Upon receipt of service of process, a public employer may answer in the ordinary course,
170	170	140file a certificate of investigation and obtain a stay of the duty to answer for 90 days or file a
171	171	141request for mediation and obtain a stay for 120 days. If the public employer files a request for
172	172	142mediation, it shall provide the plaintiff with all information and documents it has concerning the
173	173	143matter at issue and arrange for a mediation with any court certified mediation program or before 8 of 19
174	174	144a mutually agreed upon independent mediator. In any mediation the public employer shall
175	175	145bargain in good faith demonstrating integrity and honesty for the purposes of arriving at a fair
176	176	146and reasonable resolution. The time for mediation may be extended for not more than 90 days
177	177	147by a request made by all parties. If mediation causes a settlement to be achieved, the parties
178	178	148shall file a joint motion for entry of judgment and the issuance of an execution. No
179	179	149confidentiality terms may be included in any settlement agreement, provided however, that a
180	180	150court may impound all or part of the information provided if it is convinced that there is a
181	181	151compelling need for confidentiality. All information about the identity of a child who was the
182	182	152victim of sexual abuse shall be impounded. After the answer is filed or the expiration of any stay,
183	183	153the public employer shall answer and discovery shall proceed in the ordinary course. No public
184	184	154employer or public employee may require arbitration of any issue or claim arising under this act
185	185	155and any contract or agreement purporting to require arbitration shall be null, void and
186	186	156unenforceable
187	187	157 If the attorney general or any district attorney reasonably believe that discovery as to a
188	188	158claim will impair a pending criminal investigation or prosecution or would reveal confidential
189	189	159methods and means of investigation or the identity of confidential informants, the attorney
190	190	160general or any district attorney may intervene in an action pending under this act and ask the
191	191	161Court to stay discovery and the trial date for not more than one year. The attorney general and
192	192	162the district attorneys shall have the burden of persuading the Court that the public interest
193	193	163requires a stay and may make in camera submissions to the Court to attempt to meet that burden.
194	194	164A stay so entered may be extended for a period of one additional year for good cause shown.
195	195	165The Court may also enter such protective orders as the interests of justice might require if it is
196	196	166persuaded by clear and convincing evidence of the need for such an order. 9 of 19
197	197	167 The provisions of this section shall not apply to such claims as may be asserted by third-
198	198	168party complaint, cross claim, or counter-claim, or to small claims brought against housing
199	199	169authorities pursuant to sections twenty-one to twenty-five, inclusive, of chapter two hundred and
200	200	170eighteen; provided however, that no small claim shall be brought against a housing authority
201	201	171more than three years after the date upon which the cause of action arose.
202	202	172 Section 6: Compromise or settlement of claims; subsequent actions
203	203	173 The executive officer of a public employer may mediate, compromise or settle any claim
204	204	174for damages under this chapter; provided, that any award, compromise or settlement in excess of
205	205	175two thousand five hundred dollars shall be made only with the prior approval of the public
206	206	176attorney for such public employer; provided further, however, that in any case where the public
207	207	177employer is the commonwealth, any award, compromise or settlement in excess of twenty
208	208	178thousand dollars shall be made only with the prior approval of the secretary of administration
209	209	179and finance. A person designated by the public attorney or secretary of administration and
210	210	180finance having actual authority to make settlements and commit to the entry of a final judgment
211	211	181shall attend all mediations either in person or virtually and said person shall be required to
212	212	182bargain in good faith. In the event that a public employer fails to attend or bargain in good faith
213	213	183then the claimant may apply to the court for such sanctions, costs, expenses and legal fees as
214	214	184may be appropriate and a court may impose those to obtain compliance with this statute and
215	215	185deter misconduct.
216	216	186 The acceptance by the claimant of any such award, compromise or settlement approved
217	217	187by the Court shall be in writing and shall, except when procured by fraud, be final and
218	218	188conclusive on the claimant, and shall constitute a complete release of any claim against the 10 of 19
219	219	189public employer or against the public employee whose negligent or wrongful act or omission
220	220	190gave rise to such a claim, and a complete bar to any action by the claimant against such public
221	221	191employer or public employee, by reason of the same subject matter. Provided, however, if the
222	222	192public employer or public employee is found to have committed fraud or to have withheld
223	223	193evidence helpful to a claimant, the claimant may petition to set aside the settlement reopen the
224	224	194case. The claimant seeking to set aside a settlement shall have the burden of persuade the court
225	225	195by clear and convincing evidence that the misconduct occurred and that it materially impaired
226	226	196the claimant’s ability to prove the case.
227	227	197
228	228	198 Section 7: Defense of actions
229	229	199 Section 7. The public attorney shall defend all civil actions brought against a public
230	230	200employer or public employee of the commonwealth pursuant to this chapter. If the public
231	231	201attorney has a conflict of interest, the employer shall retain independent counsel and pay that
232	232	202attorney’s reasonable fees and costs. If a public employee is sued for claims as to which there is
233	233	203no right of indemnification that employee may retain counsel of the employee’s choosing and at
234	234	204the employee’s expense and then that attorney shall take over the defense or, at the discretion of
235	235	205the public attorney and so long as no conflict of interest exists, act as co-counsel.
236	236	206 Section 8: Finality of judgments; subsequent actions
237	237	207 Section 8. Any award, compromise or settlement of a civil action brought under this
238	238	208chapter in excess of twenty thousand dollars which has been approved by a public attorney for a
239	239	209public employer, or, in the case where the public employer is the commonwealth, approved by
240	240	210the secretary of administration and finance, shall be made final only after approval of same by a 11 of 19
241	241	211judge of the superior court, district court or housing court having jurisdiction over the action.
242	242	212Provided, however, a judge shall approve all settlements arrived at during mediations attended
243	243	213by persons designated by the public attorney or secretary and authorized by said persons.
244	244	214Further provided no judge shall approve any settlement obtained by fraud, deception, coercion or
245	245	215threats and any claimant who contends that such misconduct occurred may raise such matters at
246	246	216any hearing to approve a settlement. A final judgment and execution shall be entered in
247	247	217accordance with an approved settlement.
248	248	218 The acceptance by the claimant of any such award, compromise or settlement shall be in
249	249	219writing and shall, except when procured by fraud, deception, coercion or threats be final and
250	250	220conclusive on the claimant, and shall constitute a complete release of any claim against the
251	251	221public employer or against the public employee whose negligent or wrongful act or omission
252	252	222gave rise to such claim, and a complete bar to any action by the claimant against such public
253	253	223employer or public employee, by reason of the same subject matter.
254	254	224 In the event that a public employer or person not entitled to indemnification fails to pay
255	255	225the full amount of any settlement or judgment, the claimant may apply to the court to enforce the
256	256	226settlement or judgment. In the event that the settlement or judgment is against a public
257	257	227employer, the court may order the sheriff of the county in which the public employer is located
258	258	228to levy against the accounts of said public employer and seize the funds necessary to satisfy the
259	259	229settlement or judgment. In the event that a settlement or judgment is against a person not entitled
260	260	230to indemnification then the claimant shall have all rights accorded to a judgment creditor.
261	261	231 Section 9: Insurance 12 of 19
262	262	232 Section 9. The attorney general shall be responsible for procuring insurance for all public
263	263	233employers. The costs of this coverage shall be allocated ratably and proportionally to the
264	264	234Commonwealth, cities, towns, counties and all other public employers. The attorney general
265	265	235shall be responsible for managing the handling of all claims made under this statute and shall be
266	266	236responsible for requiring the insurer to handle claims fairly, reasonably and promptly in
267	267	237accordance with the intent of this statute. If the attorney general determines that it would be
268	268	238more efficient and fair to manage claims and comply with this statute’s intent by creating,
269	269	239managing and operating a self-insurance program, then the attorney general may create a self-
270	270	240insurance program, set reserves, manage claims and handle them in accordance with the intent of
271	271	241this statute. The costs of this self-insurance program shall be allocated ratably and
272	272	242proportionally to the Commonwealth, cities, towns, counties and all other public employers. The
273	273	243attorney general shall have the authority to promulgate regulations to establish bidding criteria,
274	274	244specifications and protocols for awarding contracts for insurance or to promulgate regulations to
275	275	245operate a self insurance program. Any insurer selected to insure against claims shall be required
276	276	246to provide for the prompt, fair and reasonable resolution of claims and lawsuits understanding
277	277	247that the intended beneficiaries of the insurance program are those who have been injured. Any
278	278	248self insurance program shall have the same goals. The attorney general shall be responsible for
279	279	249the accomplishment of these goals.
280	280	250 Section 10: Indemnity of public employees
281	281	251 Section 10. Public employers may indemnify public employees, and the commonwealth
282	282	252shall indemnify persons holding office under the constitution, from personal financial loss, all
283	283	253damages and expenses, including legal fees and costs, if any, in an amount not to exceed
284	284	254$10,000,000 arising out of any claim, action, award, compromise, settlement or judgment by 13 of 19
285	285	255reason of an intentional tort, or by reason of any act or omission which constitutes a violation of
286	286	256the civil rights of any person under any federal or state law, if such employee or official or
287	287	257holder of office under the constitution at the time of such intentional tort or such act or omission
288	288	258was acting within the scope of official duties or employment. No such employee or official, other
289	289	259than a person holding office under the constitution acting within the scope of that employee’s
290	290	260official duties or employment, shall be indemnified under this section for violation of any such
291	291	261civil rights if he acted in an intentional, grossly negligent, willful or malicious manner.
292	292	262 For purposes of this section, persons employed by a joint health district, regional health
293	293	263district or regional board of health, as defined by sections twenty-seven A and twenty-seven B of
294	294	264chapter one hundred and eleven, shall be considered employees of the city or town in which said
295	295	265incident, claim, suit, or judgment is brought pursuant to the provisions of this chapter.
296	296	266 Section 11: Actions against members of police force; indemnity
297	297	267 Section 11. If, in the event a suit is commenced against a member of the state police or an
298	298	268employee represented by state bargaining unit five, by reason of a claim for damages resulting
299	299	269from an alleged intentional tort or by reason of an alleged act or failure to act which constitutes a
300	300	270violation of the civil rights of any person under federal or state law, the commonwealth, at the
301	301	271request of the affected police officer, shall provide for the legal representation of said police
302	302	272officer.
303	303	273 The commonwealth shall indemnify members of the state police or an employee
304	304	274represented by state bargaining unit five, respectively, from all personal financial loss and
305	305	275expenses, including but not limited to legal fees and costs, if any, in an amount not to exceed ten
306	306	276million dollars arising out of any claim, action, award, compromise, settlement or judgment 14 of 19
307	307	277resulting from any alleged intentional tort or by reason of an alleged act or failure to act which
308	308	278constitutes a violation of the civil rights of any person under federal or state law; provided,
309	309	279however, that this section shall apply only where such alleged intentional tort or alleged act or
310	310	280failure to act occurred within the scope of the official duties of such police officer.
311	311	281 No member of the state police or an employee represented by state bargaining unit five
312	312	282shall be indemnified for any violation of federal or state law if such member or employee acted
313	313	283in a willful, wanton, or malicious manner.
314	314	284 Section 12: Application of Secs. 1 to 8
315	315	285 Section 12. The provisions of sections one to eight, inclusive, shall not apply to:—
316	316	286 (a) any claim based upon an act or omission of a public employee when such employee is
317	317	287exercising due care in the execution of any statute or any regulation of a public employer, or any
318	318	288municipal ordinance or by-law, whether or not such statute, regulation, ordinance or by-law is
319	319	289valid;
320	320	290 (b) any claim arising in respect of the assessment or collection of any tax, or the lawful
321	321	291detention of any goods or merchandise by any law enforcement officer in accordance with a duly
322	322	292authorized court order or writ of execution;
323	323	293 (c) any claim based upon the issuance, denial, suspension or revocation or failure or
324	324	294refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or
325	325	295similar authorization unless based on intentional wrongdoing;
326	326	296 (d) any claim based upon the failure to inspect, or an inadequate or negligent inspection,
327	327	297of any property, real or personal, to determine whether the property complies with or violates 15 of 19
328	328	298any law, regulation, ordinance or code, or contains a hazard to health or safety, except as
329	329	299otherwise provided in clause (1) of subparagraph (j).
330	330	300 (e) any claim based upon the failure to establish a fire department or a particular fire
331	331	301protection service, or if fire protection service is provided, for failure to prevent, suppress or
332	332	302contain a fire, or for any acts or omissions in the suppression or containment of a fire, but not
333	333	303including claims based upon the negligent operation of motor vehicles or as otherwise provided
334	334	304in clause (1) of subparagraph (j).
335	335	305 (f) any claim based upon the failure to establish a police department or a particular police
336	336	306protection service, or if police protection is provided, for failure to provide adequate police
337	337	307protection, prevent the commission of crimes, investigate, detect or solve crimes, identify or
338	338	308apprehend criminals or suspects, arrest or detain suspects, or enforce any law, but not including
339	339	309claims based upon the negligent operation of motor vehicles, negligent protection, supervision or
340	340	310care of persons in custody, or as otherwise provided in clause (1) of subparagraph (j).
341	341	311 (g) any claim based upon the release, parole, furlough or escape of any person, including
342	342	312but not limited to a prisoner, inmate, detainee, juvenile, patient or client, from the custody of a
343	343	313public employee or employer or their agents, unless gross negligence is shown in allowing such
344	344	314release, parole, furlough or escape.
345	345	315 (h) any claim based on the actions of judges, clerks, assistant clerks or employees of the
346	346	316judicial branch except for criminal acts or violations of their oaths of office or for their
347	347	317negligence in the operation of motor vehicles.
348	348	318 (i) any claims based on the actions of prosecutors employed by the Commonwealth or
349	349	319any county for actions in the performance of their duties or the exercise of discretion afforded to 16 of 19
350	350	320them by operation law except for criminal acts, the intentional withholding of exculpatory
351	351	321evidence, suborning perjury or for their negligence in the operation of motor vehicles.
352	352	322 (j) any claim based on an act or failure to act to prevent or diminish the harmful
353	353	323consequences of a condition or situation, including the violent or tortious conduct of a third
354	354	324person, which is not originally caused by the public employer or any other person acting on
355	355	325behalf of the public employer. This exclusion shall not apply to:
356	356	326 (1) any claim based upon explicit and specific assurances of safety or assistance, beyond
357	357	327general representations that investigation or assistance will be or has been undertaken, made to
358	358	328the direct victim or a member of that person’s family or household by a public employee,
359	359	329provided that the injury resulted in part from reliance on those assurances. A permit, certificate
360	360	330or report of findings of an investigation or inspection shall not constitute such assurances of
361	361	331safety or assistance; and
362	362	332 (2) any claim based upon the intervention of a public employee which causes injury to
363	363	333the victim or places the victim in a worse position than he was in before the intervention; and
364	364	334 (3) any claim based on negligent maintenance of public property;
365	365	335 (4) any claim by or on behalf of a patient for negligent medical or other therapeutic
366	366	336treatment received by the patient from a public employee.
367	367	337 Nothing in this section shall be construed to modify or repeal the applicability of any
368	368	338existing statute that limits, controls or affects the liability of public employers or entities except
369	369	339as provided for herein.
370	370	340 Section 13: Frivolous claims; costs; subsequent actions 17 of 19
371	371	341 Section 13. If the judgment in any action brought under this chapter is in favor of the
372	372	342public employer, judgment for costs and execution thereon may issue in favor of the public
373	373	343employer, if the court finds the action brought by the claimant to have been frivolous or in bad
374	374	344faith, and final judgment on the action shall be a bar to any other or further action being brought
375	375	345on the same claim or subject matter. If the judgment in any action is in favor of the claimant and
376	376	346the court finds that the public employer has acted frivolously or in bad faith then the court shall
377	377	347award the claimant reasonable legal fees and costs. The provisions of G.L. c. 231 sec. 6f shall
378	378	348apply.
379	379	349 Section 14: Enforcement of claims
380	380	350 Section 14. Claims against the commonwealth or any public employer, except as
381	381	351otherwise expressly provided in this chapter or by any general or special provision of law, may
382	382	352be enforced in the superior court or in the district court which adjudicated a matter.
383	383	353 Note – expanded to cover all public employers and to allow district courts to enforce their
384	384	354judgments.
385	385	355 Section 15: Indemnity of municipal officials
386	386	356 Section 15. Any city or town which accepted section one hundred I of chapter forty-one
387	387	357on or before July twentieth, nineteen hundred and seventy-eight, and any other city which
388	388	358accepts this section according to its charter, and any town which accepts this section in the
389	389	359manner hereinafter provided in this section shall indemnify and save harmless municipal
390	390	360officers, elected or appointed from personal financial loss and expense including reasonable legal
391	391	361fees and costs, if any, in an amount not to exceed ten million dollars, arising out of any claim,
392	392	362demand, suit or judgment by reason of any act or omission, except an intentional violation of 18 of 19
393	393	363civil rights of any person, if the official at the time of such act or omission was acting within the
394	394	364scope of the employee’s official duties or employment.
395	395	365 This act shall be submitted for acceptance to the voters of each town at an annual town
396	396	366meeting in the form of the following question which shall be placed on the official ballot to be
397	397	367used for the election of town officers at said meeting:—''Shall the town vote to accept the
398	398	368provisions of section thirteen of chapter two hundred and fifty-eight of the General Laws which
399	399	369provides that the town shall indemnify and save harmless municipal officers, elected or
400	400	370appointed, from personal financial loss and expense including reasonable legal fees and costs, if
401	401	371any, in an amount not to excess of ten million dollars, arising out of any claim, demand, suit or
402	402	372judgment by reason of any act or omission except an intentional violation of civil rights of any
403	403	373person under any law, if the official at the time of such act or omission was acting within the
404	404	374scope of the employee’s official duties or employment?'' If a majority of the votes in answer to
405	405	375said question is in the affirmative, said provisions shall thereupon take full effect, but not
406	406	376otherwise.
407	407	377 Section 16: For the purpose of satisfying liens for past due child support, securing
408	408	378repayment of public assistance benefits, and past taxes, a public employer shall comply with
409	409	379sections 24D, 24E, and 24F of chapter 175 and any regulations promulgated thereunder in the
410	410	380same manner as if it were a company authorized to issue policies of insurance pursuant to said
411	411	381chapter 175.
412	412	382 Section 17: If any portion of this statute is determined to be unconstitutional or
413	413	383unenforceable then the remaining provisions shall remain in full force and effect to accomplish 19 of 19
414	414	384the intent of this statute. The provisions of this act shall apply only to events or occurrences
415	415	385subsequent to the date of enactment of this statute.