Tree falling on house invites court to parse 'discretion' in ruling city vulnerable to tort liability

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A straightforward case in the Massachusetts Appeals Court last week helps to clarify the meaning and purpose of discretionary function immunity from tort liability for both state and federal governments.

A tree fell on the plaintiff's house. The tree was on city property and under the care of the tree warden, yes that's a thing, of the city of Chicopee, Massachusetts. The plaintiff alleged that the warden, and thereby the city, was negligent for failing to remove the tree or otherwise abate the threat to property. The plaintiff proffered evidence to show that the city had reason to know the tree was not healthy.

Discretionary function immunity, provided for by both the Federal Tort Claims Act (FTCA) and the Massachusetts Tort Claims Act (MTCA), draws a fine line between ordinary accidents which the legislatures sought to compel the governments to answer for in the courts, and matters of policy. 

The plaintiff-pedestrian struck by a car driven by a government worker may sue. But the voter disgruntled over climate policy should seek a remedy at the ballot box, not in the courts. In this way, discretionary function immunity polices the very boundary between distributive justice and corrective justice, that is, the provinces of the political branches and of the judiciary, respectively.

The courts under both statutes have developed similar two-part tests. A federal court must ask, first, whether the government action involved an element of choice, or judgment, and second, critically, whether that judgment implicates public policy, that is, social, economic, or political considerations. The Massachusetts courts, under MTCA section 10(b), make the same inquiry with slightly different language, asking whether the government action involved "policy making or planning."

A perennial problem with discretionary function immunity is the name of the thing. It sounds like the exercise of discretion should trigger the immunity. But that's an oversimplification. It's really about the exercise of policy discretion. The government driver who runs a red light might be said to have exercised discretion when she put her foot on the gas. But it's unlikely that that exercise implicated public policy. Now had government officials decided not to install a traffic light at that intersection at all, having weighed the costs and benefits of injury and infrastructure, that would be a policy choice, immune from challenge in tort law.

The meaning of "discretionary" was precisely the hang up in the present case. Complicating matters, a Chicopee city ordinance expressly dedicated tree removal to "[t]he discretion and sound judgment of the Tree Warden alone" (my emphasis). The Appeals Court correctly reasoned that the discretion of the ordinance was the broader sort; the MTCA refers specifically to a "subset" of discretion involving "policy making or planning." In other words, the tree warden was driving the car, not planning the traffic lights.

The case is Citation Insurance Co. v. Chicopee, No. 24-P-309 (Apr. 9, 2025) (Justia). Justice John C. Englander wrote the unanimous opinion of the panel, which also comprised Justices Henry and Desmond.