A customer who was assaulted by an MBTA bus driver with known anger management issues, including a prior assault against a passenger, can sue the transportation authority over the attack, the Supreme Judicial Court has ruled.
In the decision for a unanimous court, Justice Dalila Argaez Wendlandt wrote that a 1978 law protecting public employers from negligence lawsuits because of the actions of some third party like a contractor or customer does not apply when a person was “directly injured by an on-duty public employee.”
Employers like the MBTA do have a responsibility to carefully select the people who will interact with members of the public, Wendlandt wrote, to make sure that they do not cause “foreseeable” harm, meaning harm that might reasonably be expected to occur under a certain set of circumstances.
On March 3, 2015, Matthew Theisz fell asleep on an MBTA bus, waking and wandering out into Lynn as a blizzard swirled around him. When another MBTA bus passed by the bus stop, ignoring Theisz’s attempts to flag it down for instructions on how to return to Boston, he rapped on the back door of the bus and chased it down when it did not stop.
“Lost, cold, and frustrated at the prospect of being stranded, Theisz first questioned why the bus driver had not stopped sooner,” Wendlandt wrote in the ruling. The driver yelled at Theisz, leaving his seat to kick snow at the man.
According to the MBTA’s brief, Theisz appeared to be impaired by drugs or alcohol, called the driver an “asshole” and threw a snowball at him, though Theisz disputes the claim that he threw a snowball.
When Theisz uttered the profanity, Wendlandt wrote, “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, the court recounted, but the driver followed him outside and began punching and kicking him. The beating was so severe, Theisz alleges, that he suffered a traumatic brain injury leaving him completely unable to return to his normal employment.
The state brought assault and battery charges against the driver, who was acquitted by a jury. Theisz sued both the driver – who never responded to the complaint and received a default judgement – and the MBTA. The MBTA, Theisz argued, was responsible for the driver’s actions because the transit authority negligently not only retained the driver even after multiple incidences where he demonstrated hostile or violent behavior but also promoted him.
The MBTA claimed in Superior Court that it is immune from being sued because the Massachusetts Tort Claims Act protects public employers from liability if they did not prevent harm caused by some third party who wasn’t acting on behalf of the employer.
Before the driver was promoted to a full-time bus operator in 2013, he had sometimes engaged in unsafe driving and, on occasion, interacted with the public and his supervisors in a hostile or insubordinate manner, according to the court’s account. Seven months after his promotion, driving through Lynn, he left the driver’s seat of a moving bus to deal with an allegedly unruly passenger.
“The passenger, who witnesses reported struck or spat at the driver, eventually attempted to retreat to no avail; the driver continued to beat him,” Wendlandt wrote. “Meanwhile, the bus, which the driver had left unattended as he attacked the passenger, struck three parked cars, endangering the lives of all the passengers onboard as well as any persons and property in the bus's uncontrolled path.”
According to the court, the MBTA suspended the bus driver for one day, taking no further disciplinary action and not requiring any training. Four months later, the driver again received no disciplinary action after stopping the bus and blocking traffic, refusing to move or cooperate with a police officer who requested his driver’s license, leading to his arrest. The incident involving Thiesz occurred one year later.
In December arguments before the high court, MBTA attorney Jennifer Lee Sage said that “the crux of the plaintiff's claims in this case is that, had the MBTA acted differently – by way of better trained or better supervised or simply fired the bus operator after certain reported bad behavior – this incident, accident, might have been averted.”
But this is exactly the kind of behavior the Tort Claims Act addresses, she claimed. Retaining the driver is not an act that created this situation, and the transit authority is not responsible for the actions of a third party, she said.
Justice Scott Kafker pushed back on Sage’s claim during oral arguments in December.
The third party is a full employee in this case, he said. “It's not nature, or a kid, or a bully, but an employee.” And there is “some logic” to arguing that an employee is more of the employer’s responsibility, he said. “You’ve hired this person, you've maintained this person, you've kept them there despite some odd and even reckless acts by this person.”
In sending the case back to the lower courts, Wendlandt noted that there is little reason to think public employers should be off the hook if they do not exercise reasonable care in the selection of an employee to interact with the public. Here, the MBTA was “choosing to place an employee in that position despite knowing of the employee’s untreated, assaultive behaviors,” Wendlandt wrote. The negligence immunity, she wrote, “provides no safe harbor in such circumstances.” | 
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