Trap of the Week: c. 258 presentment

Thursday, Oct. 20, 2022
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From time to time, eJournal features excerpts from the expanded Seventh Edition of the Massachusetts Bar Association’s award-winning malpractice prevention handbook, Traps for the Unwary, which looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. This Trap of the Week looks at the presentment requirements of the Massachusetts Tort Claims Act.

Traps Example: c. 258 presentment

For claims against “public employers,” Doe v. Cambridge Public Schools, 101 Mass. App. Ct. 482, 194 N.E.3d 217 (Aug. 10, 2022), is a reminder to plaintiff attorneys to comply strictly with the presentment requirements of the Massachusetts Tort Claims Act. The safe course for attorneys is to closely review the terms of the statute when deciding to whom a presentment letter should be sent.   

In Doe, the defendant moved to dismiss the plaintiff’s complaint for negligence, arguing that the plaintiff’s presentment letter under G.L. c. 258 was insufficient since it was sent to the superintendent of schools, not to the city’s mayor. The trial court denied the motion to dismiss. The defendant took an interlocutory appeal, and the Appeals Court reversed, holding that the superintendent of schools was not an “executive officer” under the statute. The court stated:  “At bottom, we acknowledge that the presentment requirements of G.L. c. 258, sec. 4, may lead to harsh results. (Emphasis supplied.) (Citations omitted.) However, that is how the statute is written, and it is incumbent on plaintiffs to strictly comply with its requirements.” 101 Mass. App. Ct. at 489.

The court went on to note that defective presentment can be excused if a plaintiff can demonstrate that the designated officer had actual notice of the written claim, but ”the actual notice exception is narrow,” and constructive notice is insufficient. The court added: “Moreover, it is irrelevant that a defendant may have suffered no prejudice from the lack of actual notice of the written claim.” Id.

Traps For the Unwary editors James E. Harvey Jr. and John F.  Brosnan from O’Malley, Harvey and Brosnan LLC encourage alert readers to send them suggestions for “traps” to include in future editions of the eJournal — and to help MBA members avoid pitfalls.



The expanded Seventh Edition of Traps for the Unwary was made available to MBA members as a free e-publication during the MBA’s 2021-22 association year. From dangers that arise in uncommon circumstances to hard-to-see risks that are masked by a complex matrix of laws and regulations, Traps for the Unwary is an indispensable reference tool that benefits both lawyer and client. The original Traps for the Unwary, published in 1988, earned a first place Award of Achievement from the American Bar Association for service to the bar.

MBA members can access and download their e-copy from their MBA profile. (See detailed instructions at