G.L. c. 258, §§ 2, 4, 10
The Massachusetts Tort Claims Act — two years to present, and a $100,000 ceiling
A claim in Massachusetts trial courts · Last verified August 26, 2026
Massachusetts government is immune from suit unless the Legislature has said otherwise. Chapter 258 is that permission, and it is a narrow one: it waives immunity for negligence by public employees, caps the recovery at $100,000, requires a written presentment within two years, and then takes back a long list of claims in § 10.
The presentment requirement is where good cases die. It is short, it is a condition precedent, and it runs from the date the cause of action arose rather than from anything the claimant did.
What the claim is
A public employee's negligence injured you — a municipal vehicle, a school, a public building, a hospital, a highway crew — and you want the government to pay.
Where the right comes from
What a plaintiff has to prove
Section 2: public employers are 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 his office or employment, in the same manner and to the same extent as a private individual under like circumstances."
- A public employer — the Commonwealth, a county, a city, a town, or a public agency or authority;
- A negligent or wrongful act or omission of a public employee;
- Within the scope of office or employment;
- For which a private person would be liable in like circumstances; and
- Timely presentment.
Presentment — the two years that matter
Section 4: "A civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose, and such claim shall have been finally denied by such executive officer in writing."
Three mechanics follow.
Two years to present, in writing. This is a condition precedent, not a limitations period. A claim never presented cannot be brought at all.
Denial, actual or deemed. Failure of the executive officer to deny the claim in writing within six months of presentment is deemed a final denial, which is what lets a claimant proceed when the government does not respond at all.
Three years to sue, from the date the cause of action accrued.
Who counts as the "executive officer" is broader than it sounds. For a city or town, § 4 provides that presentment is sufficient if made to any of: the mayor, city manager, town manager, corporation counsel, city solicitor, town counsel, city clerk, town clerk, chairman of the board of selectmen, or executive secretary of the board of selectmen. Ten officials, any one of which will do — which is a considerable safety margin, and a reason not to guess.
One carve-out. A civil action relating to the sexual abuse of a minor under G.L. c. 260 § 4C is governed by c. 260 § 4C½ and does not require presentment at all.
The $100,000 cap
Section 2 limits liability. A public employer is not liable "for interest prior to judgment or for punitive damages or for any amount in excess of $100,000."
Three consequences.
The cap is the whole recovery, and it includes medical expenses, lost earnings and everything else. A catastrophic injury caused by a municipal employee's negligence is worth $100,000.
No prejudgment interest, which removes the 12 percent that runs in every private case.
No punitive damages.
The MBTA is different. Section 2 provides that claims for serious bodily injury against the Massachusetts Bay Transportation Authority are not subject to the $100,000 limitation.
The § 10 exclusions
Section 10 removes whole categories from the waiver. The ones that decide cases:
§ 10(b) — discretionary functions. No liability for a claim based on the exercise or performance, or the failure to exercise or perform, a discretionary function — whether or not the discretion was abused. Policy choices about how to allocate resources, whether to inspect, what programme to adopt are immune. Ministerial acts — carrying out an established policy — are not.
§ 10(c) — intentional torts. No liability for a claim arising out of an intentional tort, including assault, battery, false imprisonment, false arrest, intentional mental distress, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, invasion of privacy, or interference with contractual or advantageous relations. Those claims go against the individual employee instead, who is not protected by the Act's exclusivity for conduct outside it.
§ 10(j) — harm caused by a third party. No liability for an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, not originally caused by the public employer. This is the exclusion that defeats most failure-to-protect claims — the school that did not stop the assault, the police who did not intervene — and its exceptions are narrow.
The employee's position
Section 2 makes the chapter's remedy "exclusive of any other civil action or proceeding by reason of the same subject matter against the public employer or the public employee," and provides that no such employee "shall be liable" for injury caused by their negligent or wrongful act within the scope of employment.
So for negligence, the employee is immune and the employer answers, capped. For an intentional tort, the employer is excluded by § 10(c) and the employee is exposed.
Section 2 adds a detail worth knowing: a public employee who fails to provide reasonable cooperation to the employer in defending the action becomes jointly liable with the employer to the extent the failure prejudiced the defence.
How long you have to file
Two years to present. Three years to sue. Both run from the date the cause of action arose, subject to the discovery rule.
What the claim pays
Compensatory damages up to $100,000, and no more.
No prejudgment interest. No punitive damages. No attorney's fees.
Uncapped, for serious bodily injury claims against the MBTA.
Statutory claims are a different matter. Where a separate statute creates a right against a public entity, the c. 258 cap does not necessarily apply to it — which is why a claim that can be brought under another statute is worth identifying early.
Which court
District Court or the Boston Municipal Court within the $50,000 procedural threshold; Superior Court above it. Given the $100,000 cap, either can be appropriate.
Common defenses
- No presentment, or late presentment — the most common and most complete.
- The discretionary function exclusion, § 10(b).
- The intentional tort exclusion, § 10(c).
- The third-party harm exclusion, § 10(j).
- The employee was outside the scope of employment.
- No private analogue — a private person would not be liable in like circumstances.
- Comparative negligence.
- Limitations — three years.
- The cap, which is not a defence to liability but decides the value.
What people get wrong
Presentment is not optional and two years is short. A claim never presented cannot be brought, however good it is.
Present to the right person — or to any of the ten the statute names. For a city or town, the statute lists them, and using one of them removes the argument.
The cap is a hard ceiling. One hundred thousand dollars, including everything, with no interest before judgment.
You cannot sue the city for an assault. Section 10(c) excludes intentional torts — but the employee can be sued personally, and no presentment is required for that.
Discretionary is not the same as careless. A policy decision is immune; failing to carry out an established procedure is not.
Section 10(j) defeats most failure-to-protect claims, and it is the exclusion plaintiffs underestimate.
Where it came from
Sovereign immunity came to Massachusetts from English law and survived here longer than in most states — into the 1970s, when the SJC told the Legislature that it would abolish the doctrine judicially if the Legislature did not address it.
Chapter 258 was the answer, and it is a negotiated one. The Commonwealth accepted liability for ordinary negligence, which is the bulk of what government does badly, and kept immunity for the things it was most worried about: policy judgments, deliberate wrongs, and the endless class of claims that a public body should have prevented someone else's harm.
The $100,000 cap is the fiscal side of that bargain. It was set in 1978 and has never been raised, so inflation has done what no amendment did and reduced its real value by most of its original worth. The MBTA carve-out for serious bodily injury is the only exception the Legislature has made, and it is a narrow one.
The presentment requirement serves a purpose beyond deadline-keeping: it gives the public employer a chance to investigate while evidence exists and to settle without litigation. Courts enforce it strictly for that reason, and the ten-official list for cities and towns is the Legislature's own acknowledgement that strictness about the deadline should not become a trap about the addressee.
Common questions
How long do I have to sue a city or town in Massachusetts?
You must present the claim in writing within two years of the date it arose, and sue within three years.
Who do I present the claim to?
The executive officer of the public employer. For a city or town, the statute accepts the mayor, city or town manager, corporation counsel, city solicitor, town counsel, city or town clerk, or the chairman or executive secretary of the board of selectmen.
How much can I recover?
$100,000, including everything, with no interest before judgment and no punitive damages — except that serious bodily injury claims against the MBTA are not capped.
What if the government never answers my presentment?
Failure to deny in writing within six months is deemed a final denial, and you may sue.
Can I sue the individual employee?
Not for negligence within the scope of employment — the Act makes the employer's liability exclusive. For an intentional tort you can, because § 10(c) puts those outside the Act.
Why was my claim dismissed even though the employee was careless?
Most likely one of the § 10 exclusions — a discretionary function, an intentional tort, or a failure to prevent harm caused by a third party.