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Court rules MBTA not exempt from suit over its hiring and supervision of a bus driver who stopped his bus, got out and stomped a man in one of the 2015 blizzards

The Massachusetts Appeals Court ruled today a man who suffered a traumatic brain injury in an alleged beating by an MBTA bus driver with a history of anger-related issues can proceed with his suit against the MBTA for hiring the guy.

The T had argued it was exempt from being sued because of a state law that exempts state agencies from any claims related to illegal acts by its employees that the agencies did not themselves cause - in this case, the way the bus driver beat up Matthew Theisz in the middle of a blizzard in Lynn's Central Square on March 3, 2015.

The court acknowledged the T's assertion is true, but then continued that Theisz's complaint was not that the T had something to do with his beatdown that night but that the T was negligent in hiring the driver and then in the way it trained and supervised him, and that's a different matter altogether, one that is not covered by the law the T cited.

When an employer hires an employee who will interact with members of the public, the employer has the duty to exercise reasonable care in selecting employees who will not endanger the public.

The court said Theisz had made a good enough case to go to trial to try to prove that is exactly what the T didn't do, because the driver, initially hired in December, 2010, "had a history of infractions based on unsafe driving and complaints based on his hostile or insubordinate interactions with the public and his supervisors," a record that included beating a passenger while he was still driving, crashing his bus into three parked cars, and then a year later getting arrested after a cop stopped him for a traffic violation in his bus and he refused to provide his license and registration. The court noted the T kept him on as a driver "in good standing" right up through March 3, 2015.

The court provided a summary of what happened, based on Theisz's account:

The plaintiff, lost in Lynn at night in blizzard conditions, saw a bus go by and attempted to wave it down to ask where he could find a bus to Boston. When the bus passed him without stopping, the plaintiff banged on the back door. The bus eventually stopped, and the plaintiff banged on the front door before the driver, Smith, opened it. After words were exchanged, Smith began yelling at the plaintiff, then got out of his seat, approached the door, and kicked snow from the bottom of the bus at the plaintiff. The plaintiff called Smith an "asshole"; Smith lunged at him. The plaintiff tried to run away, but Smith punched him in the back of the head, causing the plaintiff to fall, and then Smith kicked and stomped on the plaintiff's head. Bleeding from his head, the plaintiff was transported to the hospital by ambulance, where he was treated for a traumatic brain injury.

Theisz filed his first suit in 2016. The case has slowly wended its way through the courts, incluing a detour to federal court, where the T sought to have the case "removed" because Theisz raised federal civil-rights claims. The two sides then agreed to go back to state court, in this case Suffolk Superior Court, where the case was put on hold pending the T's appeal to the state's second highest appeals court, after a judge there denied its immunity claim.

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I know that as a rule the T is desperate for bus drivers, but that doesn't justify keeping a known volatile asshole with a record of road rage on the payroll. That's a no-brainer, which doesn't mean that I'm surprised that the T did that. What a complete basket case of an organization.

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I think they are trying very hard to make improvements in both the culture and the functioning of the T sing Phil Eng was hired. I feel for him, inheriting such a mess!

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Once again, the theory of caution applies when designating someone an asshole (even it's a valid assessment).

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You're right. Maybe he just stomped on that guy's head because he's a free spirit.

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"...a record that included beating a passenger while he was still driving, crashing his bus into three parked cars, and then a year later getting arrested after a cop stopped him for a traffic violation in his bus and he refused to provide his license and registration.

So why didn't the T terminate his employment for any of those incidences? (Or did they try to fire him but forced to rehire?)

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This is actually an extremely unusual case. The vast majority of T drivers are doing their best, and in constant fear that they will be victims themselves. They never know when an angry member of the dregs of society will get on the bus.

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Labor shortage.

Another phrase: If you like your weekends, thank a union.

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Or maybe it's the more obvious explanation: back then, MBTA management didn't care about anything whatsoever beyond taking as little action as possible under any and all circumstances. They managed themselves, supervised themselves, and audited themselves. Whomever was responsible (on paper) for this driver when he got arrested while on duty was probably incentivized by more senior leadership in various ways to do nothing until everything blew over, which it always eventually did.

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