Harvard grad student planning to sue the MBTA must prove negligence first, legal analyst says

A grad student announced last week that she's planning to sue the MBTA for a separated shoulder she suffered when a decrepit utility box fell and hit her at the Red Line's Harvard Square station. Northeastern University law professor and GBH legal analyst Daniel Medwed joined GBH's Morning Edition co-hosts Paris Alston and Jeremy Siegel to discuss the case, and the laws that govern personal injury lawsuits against the transit agency. This transcript has been lightly edited.

Jeremy Siegel: So things falling from above you at a train station is just one of several problems that have led to legal issues for the T. There was the Orange Line fire that led to someone literally jumping into a river. A man who died after his arm was caught in a train door on the Red Line. A B.U. professor who died after falling through a dilapidated staircase. What exactly does it take to sue the T over something like one of these incidents? And does the fact that it's public transportation mean there are special rules?

Daniel Medwed: Well, there are special rules. So on the one hand, since the T is publicly run, we have to be mindful of a doctrine known as sovereign immunity. You generally can't sue the government. On the other hand, there are exceptions to that doctrine. So long as you follow special procedures. And those special procedures in Massachusetts are contained in something called the Tort Claims Act.

Paris Alston: So let's pull back into Harvard Station for a second here. Here is Thomas Flaws, who is the lawyer for Joycelyn Johnson, the woman who was hit by the equipment.

Thomas Flaws [previously recorded]: If this was something that had hit her in the head or had been a small child, it could have killed her or killed a small child.

Alston: Now, in terms of that Tort Claims Act, Daniel, do you think that Johnson can make a strong argument, and how does she and her lawyer prove it?

Medwed: Well, basically, Paris, she'll have to prove that the team was somehow negligent; some type of public employee was negligent. Now, negligence doesn't involve intentional or reckless injury. It just means that someone at the T didn't adhere to the standard that we expect them to abide by. They didn't meet what's called a reasonable duty of care. So in this case, reports indicate that that particular utility box was really in a dilapidated state. And in fact, about a month before the accident, another commuter alerted the T about how this particular box posed a safety hazard.

Siegel: Daniel, you said 'someone' when you were referring to a problem at the T, is there one person who who should have found an issue but didn't? And, who do you actually sue under this law? Would it have to be an individual employee, someone who works on repairs at the Harvard Station, someone in charge of maintenance at the T as a whole? The T itself? Where does the lawsuit go exactly?

Medwed: That's a critical piece of this whole Tort Claims Act puzzle. And here's how it works. The law itself refers to suing a "public employer." So you sue the T itself. The employee on an individual level is immune from liability, so long as that employee was acting within the scope of their duties when they performed the relevant task.

There are some great cases on this where employees go rogue. They're called frolic and detour cases. And if an employee goes on a frolic and detour away from the scope of their duties, you can sometimes sue them. But, but as long as the employee is engaged in their activities, their designated work responsibilities, you're going to sue the T, not the individual. It's sometimes referred to by a Latin phrase, respondeat superior, that the superior, the company is responsible for the sins of the employee.

Alston: So to get this right, Daniel, you basically have to show that the employee as an individual was negligent, but then you sue the agency, right? Are there any other procedural hurdles that you have to clear to get to court?

Medwed: Absolutely. This is the law, which means there are lots of procedural hurdles. And I think the highest one here relates to timing. So under the Tort Claims Act, you have to submit notice to the T in writing within two years of the injury, the accident. Then the T has six months to evaluate your request. Presumably they're going to deny your claim and then you essentially have to rush into court. You have to rush to file your lawsuit.

You have to file your lawsuit within three years of the accident. This is what I like to call a trap for the unwary. If your lawyer isn't an expert under the Tort Claims Act or really doesn't have experience suing the T, it's possible the lawyer will miss the filing deadline and your claim will be time barred.

Siegel: So let's assume that you do meet all of these requirements, that you do have a good lawyer. What could happen in the end of a lawsuit?

Medwed: It depends. So first, you may not get what are called punitive damages, extra damages in the case of an egregious incident. Second, however, you may get compensatory damages, damages that are designed to compensate you for the injury, but those damages are capped, get this, at $100,000, you can't get more than $100,000 for your injury — unless and there's a narrow exception. If the MBTA causes you "serious bodily injury," which often means permanent disfigurement or the loss of a limb or something like that, then you can exceed the $100,000 cap.