The August issue of Legal News discussed the Massachusetts notice requirements for injuries from defects in a way. This issue focuses on the pitfalls involved in determining who is responsible for the condition of the way and defect that caused the accident.

Notice of Roadway Condition

In Massachusetts, a person injured in an accident as a result of the condition of a road or way has only thirty (30) days to give notice to the responsible party and may lose the opportunity to recover any damages if he or she fails to give proper notice. Therefore, in such a case, prompt investigation of liability is essential to the ability to recover damages. Most often, compliance with the statutory requirement is met with notice to the municipality that controls the way. However, there are circumstances where an entity other than the municipality is responsible for the condition of the way. An injured person would want to send notice within the time allowed to all parties that might be liable in order to preserve a claim.

Failure to Give Notice to Town

In a recent case, the Appeals Court held that a bicyclist’s failure to send notice of his claim under the statute to the gas company that had dug up the road precluded suit against the company. Although the bicyclist sent notice to the town within the statutory period, the court found that the entitlement to notice as a precondition to any action seeking recovery of damages extended to both private and governmental entities. More than thirty days after the accident, the municipality revealed that the gas company had created trenches in the street in the vicinity of the bicyclist’s fall and was by law obliged to put the street in as good repair as they were when opened. Although the bicyclist then quickly sent notice of the claim to the gas company, it was too late. The court found that the burden is placed on the party injured by reason of the defect in the way to ascertain promptly whether the defect may have been caused by a party other than the municipality who is by law obliged to keep the way in repair.

Lack of Notice Involving Contractor

In contrast, in another recent case under similar facts, a motorcyclist was able to recover her damages for personal injuries she sustained when she struck a rock in a road construction zone on a rural highway and was thrown from her bike. The plaintiff filed suit against the private contractor which was under contract with the Department of Transportation, alleging that the contractor failed to comply with its obligation and duty to assure that the area was left in a safe condition for the motoring public at the end of the workday. A distinguishing feature of this case is that the contractor’s responsibility for the roadway was determined by contract rather than by law as set forth in the notice statute.

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Contact Attorney Bob Allison if you were injured in a motor vehicle accident.  You may call him at 978-740-9433 or fill out an online contact form.  We will set up a free consultation with you to discuss your case.