It can be. The Appeals Court held that a city cannot use the Tort Claims Act’s “discretionary function” exception to avoid a negligence claim over its tree warden’s failure to remove an unhealthy city tree that later fell on a neighbor’s home. This is a published decision of the Appeals Court and binding statewide.
What happened
A tree stood on city property in the tree belt in front of a Chicopee home. In 2013, the prior owner of the home sent the city a certified letter saying the tree was in poor condition and endangered the house. In February 2019, the tree fell on the home in a windstorm and caused heavy damage. Days later, the homeowner wrote to the mayor, describing what happened and saying the city could have prevented it with reasonable care. Her insurer paid her claim and then sued the city for negligence. The city moved for summary judgment, a judge denied it, and the city appealed.
What the court decided
In Citation Ins. Co. v. Chicopee, No. 24-P-309 (Mass. App. Ct. April 9, 2025), the court affirmed.
Under the Massachusetts Tort Claims Act, a public employer is generally liable for its employees’ negligence in the same way as a private person. G.L. c. 258, § 2. One exception covers claims based on a discretionary function. G.L. c. 258, § 10 (b). But the Supreme Judicial Court has made that exception narrow. It applies only to discretionary conduct that involves policy making or planning. Harry Stoller & Co. v. Lowell, 412 Mass. 139 (1992).
The court explained that deciding where to plant a tree, or creating and funding a tree warden position, might be planning. Deciding whether to remove a specific hazardous tree is not. That is ordinary work under the basic duty of reasonable care not to harm a neighbor’s property. The court compared Greenwood v. Easton, 444 Mass. 467 (2005), where a town’s choice to use telephone poles as parking barriers was a policy decision, but the way the poles were installed was not.
The city pointed to its ordinance, which said the tree warden’s “discretion and sound judgment” alone decide whether a tree is removed. The court held that label does not control. Whether § 10 (b) applies is a legal question for the court. A city cannot avoid liability just by calling a job “discretionary.”
The court also rejected the city’s argument that the claim was not properly presented. Before suing a city, a claimant must present the claim in writing to a listed official, such as the mayor, within two years. G.L. c. 258, § 4. The homeowner’s letter to the mayor gave the date, what happened, and the basis of the claim, which was enough. Murray v. Hudson, 472 Mass. 376 (2015).
The ruling does not decide that the city was negligent. The case goes back for the negligence claim to be proved.
What this means for you
If a tree on city or town land threatens your home, the municipality may have to act with reasonable care, and it may be liable if it does not. A local rule calling tree removal “discretionary” does not by itself shut the door on your claim.
Written notice mattered here. The record includes the prior owner’s sworn statement that she sent the city a certified letter about the tree years earlier. The homeowner’s prompt letter to the mayor met the presentment requirement.
Keep in mind that the Tort Claims Act also limits what you can recover. Public employers are not liable for punitive damages or for prejudgment interest, and damages are generally capped at $100,000. G.L. c. 258, § 2.
What to do now
- If a city or town tree near your home looks dead, leaning or damaged, notify the tree warden and the mayor or town manager in writing, by certified mail.
- Take dated photos of the tree and keep copies of everything you send.
- If a public tree damages your property, send a written presentment letter to the mayor, city manager or another listed official, describing the date, what happened and why the city is at fault.
- Do not wait. The written claim must be presented within two years.
- Tell your insurer, and get legal advice about claims against the municipality.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
Prior results do not guarantee a similar outcome.
