You trip on a crumbling stair at a public building, get hit by a city truck, or your car is wrecked by a hazard the town knew about and never fixed. You start to ask about a claim, and the answer comes back fast and confident: the city is immune, you cannot sue the government, there is nothing to be done. It sounds official, it sounds final, and a great many injured people take it at face value and walk away from a claim Massachusetts law would actually allow.
The blanket assertion that a city or town is immune is one of the most misleading things an injured person hears. It is a half-truth built on an old rule the Commonwealth changed decades ago. Massachusetts passed a statute that specifically makes public employers answerable for the negligence of their employees, subject to particular exceptions and limits. Governmental immunity in Massachusetts is real but narrow, and it does not do what the word “immune” implies when a town uses it to end the conversation.
Understanding what the immunity actually covers, and what it does not, is the difference between accepting a brush-off and pursuing a legitimate claim. What follows is how it really works — where the immunity came from, why discretionary decisions are protected but ministerial failures are not, the short deadline that can quietly kill a claim, and why a damages limit is not the same as zero. This is general information rather than advice about a specific case, which depends on its own facts.
“The city is immune” — what is true and what is not
The immunity defense trades on a kernel of history that no longer describes the current law, so it helps to separate the old rule from what the statute actually says today.
Where the immunity idea comes from
The notion that you cannot sue the government descends from the old doctrine of sovereign immunity — the historical rule that the state could not be sued without its consent. For a long time that rule did broadly shield public entities from tort claims, and the reflex it created, that the government is simply untouchable, still lingers in how people, and insurers, talk about these cases. But a doctrine that once barred the courthouse door has since been opened by the Legislature. When a town leans on “we’re immune,” it is invoking the memory of a rule rather than the statute that replaced it, and that distinction is where injured people are misled. The statute did not merely soften the old rule; it inverted the starting point, from “no suit” to “liable unless an exception applies.”
The Tort Claims Act made public employers liable
Massachusetts waived much of that immunity through the Massachusetts Tort Claims Act. Under Massachusetts General Laws chapter 258, section 2, public employers are liable for personal injury, death, or property damage caused by the negligent or wrongful act or omission of a public employee acting within the scope of employment, in the same manner and to the same extent as a private individual under like circumstances. That is a broad grant of liability, not a shield. It means that, as a starting point, a city, town, or state agency can be held responsible for its employees’ negligence much as a private company would be, subject to the specific exceptions and limits the statute goes on to spell out. The default under the Act is liability, with immunity as the exception, and that reversal is the single most important fact a town’s “we’re immune” leaves out.
Why “immune” is a half-truth
Because the statute starts from liability and then carves out particular exceptions, a flat statement that the government is immune is misleading. The accurate picture is that public entities are generally liable for negligence, except in defined situations, and subject to a cap and to procedural requirements. Whether a given claim survives depends on which side of those specific lines it falls, not on a sweeping notion that the government cannot be sued. When a town’s only answer is the single word “immune,” that is a signal to look closer, because the real question is always the narrower one: does one of the statute’s actual exceptions apply to this claim, or not. A serious injury caused by a public entity deserves that closer look, because a reflexive claim of governmental immunity resolves far fewer cases than the word suggests.
Immunity covers discretionary, not ministerial, failures
The most important exception, and the one most often stretched, protects discretionary decisions but leaves ordinary operational negligence fully exposed.
The discretionary-function exception
The statute’s central immunity is the discretionary-function exception. Under chapter 258, section 10, a public employer is not liable for a claim based on the exercise or failure to exercise a discretionary function or duty, even if that discretion is abused. The purpose is narrow: to keep courts from second-guessing genuine policy choices — the kind of planning and judgment that involves weighing competing public priorities and resources. A decision about whether to build a program, how to allocate a budget, or what policy to adopt is discretionary, and the law leaves those choices to the political branches rather than a jury. This is the legitimate core of governmental immunity, and it is real. The mistake is not recognizing it, but stretching it to cover conduct that involves no policy judgment at all.
What counts as a ministerial failure
The exception does not reach the far larger world of ministerial, or operational, conduct — the everyday carrying out of duties that involves no policy judgment. Once a decision has been made, negligently executing it is not a protected discretionary function. Massachusetts courts draw the line between planning-level decisions, which are immune, and operational-level carelessness, which is not. Failing to maintain something that was supposed to be maintained, ignoring an established safety procedure, or carelessly performing a routine task is ministerial, and the discretionary shield does not cover it. The defense loves to relabel ordinary negligence as a “discretionary” choice, but a genuine policy judgment is very different from a crew that simply did its job carelessly. The label a town chooses does not decide the question; what the employee was actually doing — making policy or carrying it out — is what controls.
Negligent maintenance is not immune
The statute makes one point especially clear for injury victims: even within the exception that shields a public employer from failing to prevent harms it did not originally cause, the law expressly preserves claims based on the negligent maintenance of public property. In other words, when a public entity lets its own property fall into a dangerous condition and someone is hurt, that is not immunized. Neglecting to maintain a stairway, a building, a park, or other public property in a reasonably safe condition is exactly the kind of operational failure the Act leaves open to a claim. So a town that points to immunity when its own poorly maintained property caused the injury is very often on the wrong side of the line the statute actually draws, and that single carve-out accounts for a large share of viable municipal-injury claims.
The presentment letter that preserves your claim
Before any of this reaches a courtroom, there is a procedural step that quietly decides a huge number of cases, and missing it is fatal in a way the merits never get to cure.
The written presentment requirement
The Tort Claims Act requires a claimant to present the claim before suing. Under chapter 258, section 4, a civil action cannot be brought against a public employer unless the claimant first presented the claim in writing to the proper executive officer within two years after the cause of action arose, and the claim was then denied. This presentment letter is not a formality to be handled later; it is a precondition to the entire claim. A perfectly valid injury case can be lost entirely because the required written presentment was never made, or was not made in time, or was sent to the wrong official. It is one of the most common and most avoidable ways a claim against a public entity dies — a trap precisely because it is unfamiliar; nothing about an ordinary injury tells you a separate, earlier notice is required.
Who to present to, and the deadline
The statute is specific about timing and recipient. The written claim must reach the correct executive officer within two years of when the claim arose, and any lawsuit must be filed within three years. For a city or town, the law identifies the officials to whom presentment is sufficient, such as the mayor, city or town manager, corporation counsel, city solicitor or town counsel, city or town clerk, or the chair or executive secretary of the board of selectmen; for the Commonwealth, presentment goes to the attorney general. Getting both the deadline and the recipient right matters, because a technically defective presentment can be treated as no presentment at all, and the door closes. Courts have enforced these requirements strictly, so precision about both the deadline and the recipient is not optional but decisive.
Why the deadline is short and easy to miss
The presentment window is shorter and more unforgiving than the general deadline people assume applies to injury claims, and it starts running immediately. An injured person focused on recovery and treatment can easily let the two-year presentment period slip by without realizing a special, earlier step was required, especially if a town has been vaguely reassuring in the meantime. Because the presentment requirement is strictly enforced and a misstep usually cannot be undone, the safest course after any injury involving a public entity is to treat the clock as already running and get the written presentment prepared and delivered correctly, well before the deadline, rather than discovering the requirement too late to satisfy it.
The damages limit is a cap, not a zero
Even where liability is clear and presentment is done, defendants invoke the statutory damages limit as though it means recovery is pointless, which badly misstates what the cap does.
What the statutory cap does
The Tort Claims Act limits the amount a public employer must pay on a claim; the statute caps compensatory damages against the public employer and bars punitive damages against it. There is a notable exception for claims of serious bodily injury against the Massachusetts Bay Transportation Authority, which are not subject to that compensatory-damages limit. The cap reflects a legislative choice to protect public treasuries from unlimited exposure, but it is a limit on the recovery from the government, not a statement that no recovery is available. Confusing the two is exactly what the “you can’t recover” framing is designed to do. The cap sets a ceiling on one defendant’s payment; it says nothing about whether the claim is worth bringing.
The cap is not the same as immunity
A limit on damages and an immunity from suit are fundamentally different things, and defendants blur them on purpose. Immunity, where it applies, means no claim; a cap means the claim proceeds but the recovery from the public employer is limited. For many injured people, a recovery up to the statutory limit is far from nothing and is well worth pursuing. Treating a cap as if it were a total bar leads people to abandon claims that would in fact produce a meaningful recovery. The existence of a limit is a reason to understand the numbers, not a reason to give up the claim, and it is often paired with uncapped defendants who change the picture entirely.
Private co-defendants are not capped
Crucially, the statutory cap protects only the public employer, not the private parties who may share responsibility for the same injury. A private contractor doing work for the city, another driver, the manufacturer of a defective product, or a private property owner is liable under ordinary law, with no governmental cap on their exposure. Many municipal-injury cases involve exactly these additional defendants, and identifying them can transform the value of a case, because the recovery from an uncapped private party is not limited the way the claim against the town is. A case that looks small when viewed only against the capped public employer can be substantial once every responsible private party is in the picture. This is one of the most important and most overlooked features of these cases, because it is where the real recovery frequently lies.
The other exceptions, and what still gets through
The discretionary-function exception is the biggest, but the statute lists several others, and knowing them helps separate the claims that are barred from the many that are not.
Intentional torts, licensing, and inspection
The statute exempts a public employer from certain categories: claims arising from an employee’s intentional torts, such as assault or false arrest; claims about issuing, denying, or revoking permits and licenses; and claims based on the failure to inspect, or a negligent inspection, of property for code compliance. These carve-outs are specific and limited. They do not immunize the government’s own negligent creation of a hazard, and they are frequently narrower than a town suggests. Knowing precisely what each exception covers is what prevents a valid claim from being waved away under a label that does not actually fit the facts. Each carve-out was written for a specific situation, and reading them broadly to defeat an unrelated claim is a common overreach worth challenging.
The public-duty rule and its carve-backs
The statute also generally shields a public employer from liability for failing to prevent harm that it did not originally cause — often called the public-duty rule, the idea that the government is not an insurer against every harm caused by third parties or nature. But this exception comes with important carve-backs written into the statute: it does not apply where a public employee gave explicit and specific assurances of safety that the victim relied on, where the employee’s own intervention made the victim worse off, where the claim is for negligent maintenance of public property, or where it involves negligent medical treatment by a public employee. Those carve-backs are where many viable claims live, and they are exactly the details a blanket claim of immunity is meant to skip past.
Motor vehicles, custody, and medical care
Some of the most important claims are expressly left open. The exceptions that shield fire and police functions specifically do not cover the negligent operation of motor vehicles, so a person hurt by a negligently driven municipal vehicle can still recover. Nor do they cover the negligent protection, supervision, or care of a person in custody. And negligent medical or therapeutic care provided by a public employee remains actionable. These are not loopholes; they are deliberate lines the Legislature drew to keep real, serious harms within reach despite the government’s partial immunity. A claim that falls into one of these lanes is not barred by the immunity a town may assert, and the Legislature’s decision to leave these harms actionable is a strong signal of how narrowly the immunity is meant to operate.
Common municipal-injury scenarios
Seeing how the rules apply to real situations makes clearer how often the immunity defense is overstated.
Dangerous roads, sidewalks, and property
Injuries from poorly maintained public property — a broken stair, a dangerous condition in a public building, a hazard on public land — often fall on the liable side of the line because negligent maintenance of public property is expressly preserved. Claims involving public roads and ways can carry their own special rules and shorter notice requirements, a subject our discussion of a dangerous public road and government liability addresses in detail. The key point is that a hazardous condition of the government’s own property is frequently actionable, and the reflexive claim of immunity should not be the end of the inquiry when the town’s own neglect created the danger.
Municipal vehicles and employees
When a city or town employee negligently causes a crash while driving a municipal vehicle within the scope of their job, the public employer can be liable much as a private employer would be for its driver, and the negligent-operation-of-motor-vehicles carve-back keeps these claims open even in the police and fire context. These cases turn on ordinary negligence principles, established through the same kind of evidence as any vehicle-crash claim, with the added layers of the presentment requirement and the cap. The immunity label does little work here, because operating a vehicle carelessly is ordinary operational negligence, not a protected policy choice. A careless turn or a rear-end collision by a town driver is judged by the same standard as any other crash.
Injuries at public buildings and facilities
Schools, municipal buildings, public pools, parks, and transit facilities are all public property that must be kept reasonably safe, and injuries caused by their negligent maintenance or unsafe conditions can support a claim. Related institutional-liability limits, like the separate charitable immunity cap that applies to nonprofit hospitals and charities, show how Massachusetts uses caps rather than blanket immunity across several contexts. In each, the analysis is the same: identify the negligent operational failure, confirm it is not a genuinely discretionary policy choice, meet the presentment requirement, and pursue every responsible party, including uncapped private ones. Applied honestly, that analysis lets far more municipal-injury claims through than the blanket word “immune” would ever suggest.
Protecting a claim against a governmental immunity defense
Because the immunity defense is so often overstated and the procedural traps so unforgiving, what an injured person does early determines whether a valid claim survives.
Send the presentment letter immediately
The single most important protective step is making a proper written presentment to the correct official, well within the deadline. Because the requirement is strict and a defective or late presentment can end the case regardless of its merits, this cannot wait. Treat any injury involving a city, town, or public agency as one where a special, early, formal step is required, and get that step handled correctly and promptly. A strong claim is worth nothing if the door is closed by a missed presentment, and this is the most common way that happens — almost always avoidably.
Identify every non-government defendant
Because the cap protects only the public employer, finding every private party who shares responsibility is often what makes a case worthwhile. A contractor, another driver, a product manufacturer, or a private property owner may be fully liable without any governmental limit, and those uncapped defendants can carry the larger part of the recovery. A case evaluated only against the capped town may look far smaller than it truly is once the full set of responsible parties is identified. Casting that net wide at the outset — before evidence about who did the work or supplied the product disappears — is central to valuing and building the claim properly.
When to bring in a Boston injury lawyer
These cases combine a misunderstood immunity defense, a strict and early procedural requirement, a damages cap, and often multiple defendants, which is a lot to navigate alone while recovering from an injury. A lawyer determines whether the negligence was operational rather than discretionary, prepares and delivers a proper presentment on time, identifies every responsible party including uncapped private ones, and refuses to accept a blanket claim of immunity the statute does not support; these cases are handled on contingency, so there is no fee unless there is a recovery. Our Boston personal injury attorneys handle claims against public entities across the Commonwealth, including the serious brain injury and wrongful death cases these hazards can cause, work reflected across our practice areas and in nearby communities including Quincy and Cambridge. If a city or town told you nothing can be done because it is immune, a first conversation costs nothing, and you can reach out before the presentment deadline runs.
Reviewed and Approved By
This article was reviewed for accuracy by Daniel J. Larson, the founding attorney of Larson Law and a personal injury lawyer admitted to practice in Massachusetts. Working out of Boston, he represents individuals and families harmed by negligence, from motor-vehicle collisions to injuries caused by unsafe property conditions and other preventable incidents. Attorney Larson practices with a litigation-first mindset, building each case through methodical investigation, discovery, and expert development, and preparing it as though a trial is likely. Before starting the firm, he defended hospitals, physicians, and other healthcare providers in malpractice cases at a Boston firm — experience that shows him how insurers and defense counsel weigh a claim. He is a member of the Massachusetts Bar Association and the Massachusetts Academy of Trial Attorneys.
Frequently asked questions
Can I sue a city or town in Massachusetts if I am injured?
Often, yes. The Massachusetts Tort Claims Act makes public employers liable for injuries caused by the negligence of their employees acting within the scope of their jobs, in much the same way a private employer would be, subject to specific exceptions and a damages limit. So the flat statement that you cannot sue the government is usually misleading. Whether a particular claim can proceed depends on whether it falls within one of the statute’s actual exceptions and whether the required procedural steps are met, not on a blanket rule that public entities are untouchable.
The town says it is immune. Is that true?
Rarely in the sweeping way it is stated. Massachusetts law starts from the position that public employers are liable for their employees’ negligence, and then carves out particular exceptions, most importantly for genuine discretionary policy decisions. Ordinary operational negligence, like the negligent maintenance of public property, is generally not immune. When a town simply says “we’re immune,” the real question is whether one of the statute’s specific exceptions actually applies to your facts. Very often it does not, and the claim can proceed if the procedural requirements are met.
What is a presentment letter and why does it matter?
A presentment letter is a written notice of your claim that Massachusetts law requires you to deliver to the correct public official before you can sue a public employer. It must reach the proper executive officer within two years of when the claim arose, and any lawsuit must be filed within three years. This step is a strict precondition, not a formality, and a claim can be lost entirely if the presentment is late, missing, or sent to the wrong person. Because it is such a common and avoidable way for claims to fail, handling it correctly and early is essential.
Is there a limit on what I can recover from a city?
There is a statutory limit on compensatory damages against a public employer, and punitive damages against it are not available, with a notable exception for serious bodily injury claims against the MBTA. But a limit is not the same as zero, and a recovery up to the cap can be well worth pursuing. Importantly, the cap protects only the public entity; private parties who share responsibility, such as a contractor, another driver, or a product manufacturer, are liable under ordinary law with no governmental cap, so the full value of a case often depends on identifying those uncapped defendants.
What should I do after an injury caused by a public entity?
Get medical care and document the injury and the hazard, then treat the situation as time-sensitive, because a special written presentment must reach the correct official within a strict deadline. Preserve evidence of the dangerous condition and identify everyone who may share responsibility, including any private contractors or companies. Then get legal advice promptly, because the interplay of the immunity exceptions, the presentment requirement, and the damages cap is difficult to navigate alone, and the earlier a proper presentment is prepared, the safer your claim.
A hazardous public tree is a common example of the same principle. When a town ignores a dead or decayed tree it had notice of and it falls, see how a falling tree injury claim turns on notice rather than the “act of God” label a city may assert.