Road Defect Statute Is Not Exclusive Remedy

Thirty Day Notice

The Massachusetts road defect statute, G.L. c. 84, § 15, specifically provides that a person injured by a defect in a public way may recover damages. Section 18 of the same chapter requires that such person send notice within thirty (30) days after the injury to “the county, city, town or person by law obliged to keep said way in repair.” This statute has been interpreted broadly by the Massachusetts trial courts and Appeals Court to apply to any entity that was responsible for roadway construction or maintenance, placing the burden on the injured party to ascertain promptly whether the defect may have been caused by a party other than a municipality in order to comply with the notice requirement. However, in a unanimous decision issued last month, the Supreme Judicial Court constrained the application of the statute concluding that the road defect statute and notice requirement apply only to governmental and quasi-governmental actors responsible for the public duty of maintaining the public way, and does not apply to a private entity that created a particular defect in the road.

Private Versus Public Entities

In that case, the plaintiff, while riding his bicycle on a Boston street, struck a utility cover that was misaligned with the road surface and sustained injuries. Two weeks later, plaintiff’s counsel sent notice of claim to multiple city officials. Thirty-one days after the plaintiff was injured, counsel received a letter from the city denying the claim and identifying a utility company as the responsible party. Counsel then promptly sent notice of the claim to the utility, and subsequently filed a complaint for damages in Superior Court. The utility company admitted that it owned and was responsible for maintaining the utility hole and cover, and surrounding pavement within thirty inches, and moved for summary judgment based on the plaintiff’s failure to comply with the thirty-day notice requirement. In awarding summary judgment to the utility, the trial court judge concluded that the road defect statute was the exclusive remedy for personal injuries caused by a defect in a public way and that it mandated notice to both private and government entities of any defect that the party is obliged to repair. The judge found that because the claimant had notified the utility one week after the deadline, his claim was barred under the statute.

Notice Not Required

On appeal, the Supreme Judicial Court reversed the grant of summary judgment finding that the road defect statute and notice requirement did not limit the utility’s common-law liability under tort law, and that consequently the utility could be sued for its own negligence without providing thirty days’ notice. Relying on “close examination of the statutory text, the legislative history of the statutes, and case law, as well as consideration of the practicalities of notice within thirty days,” the SJC determined that “private parties are not covered by the road defect and notice statutes when they cause particular defects in public roadways; rather, they are subject to suits in tort.”

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