Tort – MTCA – Loss of consortium

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Where a plaintiff brought a count pursuant to the Massachusetts Tort Claims Act (G.L.c. 258) seeking damages for the loss of consortium of her son, who sustained injury allegedly due to the negligence of a defendant school district, the complaint should not be dismissed despite the defendant’s assertion regarding the applicability of G.L.c. 231, section85X.

“The [defendant Tantasqua Regional] School District’s sole ground for dismissal is that it is not a ‘person’ within the meaning of G.L.c. 231, section85X. In so moving, the School District must be aware that plaintiff [Sandra] Kenneally has sought damages for loss of consortium in Count II of her complaint, not pursuant to G.L.c. 231, section85X but, instead, pursuant to the Massachusetts Torts Claims Act, G.L.c. 258.

“In its answer the School District raises specific affirmative defenses to the G.L.c. 258 claim, but does not refer to G.L.c. 231, section85X. In its motion to dismiss and memorandum in support of the motion, the School District’s posture is that G.L.c. 231, section85X provides the sole and exclusive remedy of a parent suing for the loss of a child’s consortium. Asserting that a School District (being the same as a ‘town’ for these purposes) is not a ‘person’ within the meaning of G.L.c. 231, section85X, the School District concludes that the claim of Kenneally for loss of a child’s consortium must be dismissed. …

“The Massachusetts Tort Claims Act provides generally that towns may be held liable for negligent or wrongful acts or omissions of their public employees ‘in the same manner and to the same extent as a private individual under like circumstances.’ … In enacting this comprehensive statutory ‘scheme of governmental liability that is consistent with accepted tort principles and the reasonable expectations of the citizenry with respect to its government,’ … the statute did not create new actions of tort liability. … The Legislature is presumed to have known the provisions of G.L.c. 258, section2, enacted in 1978, and the decisions interpreting these provisions when it passed G.L.c. 231, section85X in 1989. Specifically, it was aware that since the abrogation of sovereign immunity with the passage of c. 258, municipalities would be liable in tort ‘to the same extent as a private individual.’ G.L.c. 258, section2. Moreover, the Legislature did not attempt to expressly exempt municipalities from c. 231, section85X’s provisions.

“The defendant School District may be sued in tort for loss of a child’s consortium under G.L.c. 258.”

Cavanaugh, et al. v. Tantasqua Regional School District (Lawyers Weekly No. 12-017-12) (4 pages) (Tucker, J.) (Worcester Superior Court) (Docket No. 2011-01797A) (Feb. 14, 2012).