Suing City Hall

Mishaps in Massachusetts challenge an antique rule

Five years ago, when Boston Policeman John O'Brien was rounding the corner of Brighton's Commonwealth Avenue and Washington Street at 10 m.p.h. in broad daylight, he lost control of his police car and struck an elderly woman named Bridget Neville. Six months in the hospital and $32,000 in medical bills later, Neville, now 83, won a belated jury award of $103,253. Fair enough?

Not at all. Unless a reluctant Massachusetts state legislature takes action, Neville is likely to end up with far less than $103,253, O'Brien could be driven from his home, and the city of Boston --O'Brien's employer--could get off with a negligible payment. The reason: Massachusetts is one of twelve states still clinging to an antique doctrine of sovereign immunity, which forbids lawsuits against the government without its consent. The doctrine goes back to a medieval notion that "the king can do no wrong," and was pronounced in the U.S. as a "general proposition" by Chief Justice John Marshall in 1821. In recent terms, sovereign immunity has meant that some victims of negligent state hospital officials or wild-shooting Guardsmen and state police (as at Kent State and Jackson State universities in 1970) have no recourse except to sue the individual government employees at fault. Over the past 40 years, 38 states and the Federal Government have abolished or modified the doctrine, allowing citizens to haul various governments into court as they would a private party. State courts and legislatures have largely abolished sovereign immunity for municipalities, too. But Massachusetts has retained it, and at the time of Bridget Neville's accident the city provided only $15,000 worth of maximum liability coverage for each of its police officers. So O'Brien, 65 and recently retired, was threatened with the possible auction of his sole significant asset--an unmortgaged $18,700 house--in order to help pay for the court judgment. That prospect prompted Boston police to issue a counterthreat, vowing to refuse to drive squad cars citywide unless public funds were used to pay O'Brien's debt.

Under such pressure, city officials asked the state legislature for reform. As a result, Neville has once more delayed pressing her claim. Meanwhile, tiring of such legal imbroglios, the Massachusetts Supreme Judicial Court, in a separate but similar case, has pushed the legislature to act on the question of sovereign immunity by the end of 1978. If the legislators do not allow citizens to make "reasonable" claims against the government by then, the court threatened to abolish the doctrine on its own--and without an limit to government liability.

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