Meyer v. Veolia Energy North America , 482 Mass. 208 ( 2019 )

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SJC-12606
RICHARD MEYER vs. VEOLIA ENERGY NORTH AMERICA.
Suffolk. January 10, 2019. - May 8, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Way, Public: defect. Municipal Corporations, Notice to
municipality. Notice, Action alleging injury caused by
defect in public way. Statute, Construction.
Civil action commenced in the Superior Court Department on
February 17, 2015.
The case was heard by Peter M. Lauriat, J., on a motion for
summary judgment.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Kevin J. Powers (Andrew M. Fischer also present) for the
plaintiff.
Christopher R. Howe for the defendant.
John Pagliaro & Martin J. Newhouse, for New England Legal
Foundation, amicus curiae, submitted a brief.
KAFKER, J. While riding his bicycle on Sudbury Street in
Boston, the plaintiff, Richard Meyer, struck a utility cover
2
that was misaligned with the road surface and injured himself.
Within thirty days of the incident he submitted notice of claim
to the city of Boston (city) regarding his injury. Thirty-one
days after the incident, the city informed him that it would not
pay Meyer's claim because the defendant, Veolia Energy North
America (Veolia), was responsible for the defect that caused
Meyer's injuries. A few days later, Meyer gave notice to Veolia
and subsequently brought suit against Veolia for negligence. A
judge of the Superior Court granted summary judgment to Veolia
and dismissed Meyer's lawsuit. He concluded that G. L. c. 84,
§ 15 (§ 15 or road defect statute), provided the exclusive
remedy for Meyer's claim against Veolia. He further concluded
that Veolia was entitled to notice within thirty days from the
date of Meyer's injury under G. L. c. 84, § 18 (§ 18 or notice
statute), but that Meyer had not provided that notice.
We conclude that the decision below was erroneous. The
text of §§ 15 and 18, the legal and legislative history relevant
to those statutes, the case law, and the practical realities of
providing notice within thirty days all confirm that the road
defect and notice statutes apply to governmental and quasi
governmental actors responsible for the public duty of
maintaining the public way, and not to a private party such as
Veolia that has created a particular defect in the way.
Sections 15 and 18 do not limit Veolia's common-law liability
3
under tort law. Consequently, Veolia may be sued for its own
negligence without providing thirty days' notice. Accordingly,
we reverse the grant of summary judgment for Veolia.1
1. Facts. In reviewing a motion for summary judgment, we
view the evidence in the record in the light most favorable to
the nonmoving party. See Graham v. Quincy Food Serv. Employees
Ass'n, 407 Mass. 601, 603 (1990).
On July 1, 2013, Meyer rode his bicycle on Sudbury Street,
a public way in Boston. Meyer's bicycle struck a circular
utility cover one foot or less in diameter that was misaligned
with the road surface. Meyer's collision with the cover caused
him to crash to the ground and suffer injuries. The utility
cover bore the words "TRIGEN-BOSTON."2
On July 18, 2013, eighteen days after Meyer's injury,
Meyer's counsel sent a notice of claim by certified mail to
multiple city officials, including the mayor, the commissioner
of public works, the clerk, and corporation counsel. This claim
alleged that as Meyer turned on his bicycle from Cambridge
Street to Sudbury Street, he encountered a gap in the roadway
due to improper paving around a utility cover, which created "a
1 We acknowledge the amicus brief submitted in support of
Veolia by the New England Legal Foundation.
2 Veolia Energy North America (Veolia) represented that it
purchased Trigen in 2007 and is its parent company.
4
hole that caught the bicycle wheel." The claim further alleged
that the defect was the result of the "negligent maintenance of
the roadway owned, maintained and controlled by the city of
Boston."
On July 24, 2013, a claims officer in the city's law
department sent a letter to Meyer's counsel requesting pictures
of the defect's exact location and surrounding area. The
following day, July 25, Meyer's counsel sent a photograph and a
renewed notice of claim by certified mail to the mayor, the
commissioner of public works, the clerk, corporation counsel,
and the executive director and two commissioners of the city's
water and sewer commission (commission).
On July 31, 2013, Meyer's counsel spoke with the claims
officer. During that conversation, counsel inquired as to who
was responsible for the improperly maintained utility cover.
The claims officer did not inform Meyer's counsel that the city
planned to contend that responsibility belonged to Veolia, a
private company, rather than to the city. That same day,
however, the claims officer sent a letter to Meyer's counsel
denying the claim. The letter stated: "Our investigation
indicates that the City of Boston is not responsible for your
damages because the location of the defect is under the
jurisdiction of Veolia Energy Co."
5
Meyer's counsel received this letter late in the day on
August 1, 2013, thirty-one days after Meyer was injured. On
August 6, counsel sent a notice of claim to Veolia, informing
Veolia that Meyer had received injuries from "a defect in the
roadway caused by a utility cover . . . that had been improperly
maintained."
On February 17, 2015, Meyer filed a complaint alleging
negligence by Veolia for a "defect in the roadway caused by an
improperly and negligently installed and/or maintained utility
cover or casting." Meyer did not, however, bring suit against
the city. Veolia admitted that it owned and was responsible for
maintaining the utility hole, utility cover, and surrounding
pavement within thirty inches. Veolia moved for summary
judgment on the ground that the exclusive remedy for Meyer's
claim was § 15, which permits recovery for personal injury or
property damage due to "a defect or a want of repair . . . in or
upon a way" from "the county, city, town or person by law
obliged to repair the same." It argued that Meyer had failed to
give Veolia notice within thirty days, as required by § 18, and
that such notice was a condition precedent to any recovery.
Meyer argued, by contrast, that a private corporation such as
Veolia was not a "person" within the meaning of §§ 15 and 18,
nor was Veolia required to "keep . . . in repair" the street
6
where his injury occurred such that notice would be required
under § 18.
On May 31, 2017, the judge allowed Veolia's motion and
entered judgment dismissing Meyer's action. The judge concluded
that § 15 "is the exclusive remedy for personal injuries caused
by a defect in a public way" and that § 18 "mandates notice to
both private and government entities of any defect that the
party is obliged to repair." The judge held that the city's
municipal code placed responsibility for repairing the allegedly
defective utility cover on Veolia. He accordingly concluded
that Veolia was obliged by law to repair the alleged defect for
purposes of § 15 and thus that Veolia was also the party
entitled to receive written notice within thirty days of the
date of injury pursuant to § 18. Because Meyer had notified
Veolia one week after this deadline, the judge held that Meyer
was barred from proceeding under § 15 and allowed Veolia's
motion for summary judgment.
Meyer appealed, and we transferred the case to this court
on our own motion.
2. Discussion. An appellate court reviewing a grant of
summary judgment examines its allowance de novo and from the
same record as the motion judge. See Matthews v. Ocean Spray
Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997). The standard
of review is whether, viewing the evidence in the light most
7
favorable to the nonmoving party, the moving party is entitled
to judgment as a matter of law. See Augat, Inc. v. Liberty Mut.
Ins. Co., 410 Mass. 117, 120 (1991).
a. Construction of the road defect and notice statutes.
"[Q]uestions of statutory construction are questions of law, to
be reviewed de novo." See Bridgewater State Univ. Found. v.
Assessors of Bridgewater, 463 Mass. 154, 156 (2012). We
interpret a statute according to the intent of the Legislature,
which we ascertain from all the statute's words, "construed by
the ordinary and approved usage of the language" and "considered
in connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished." Harvard Crimson, Inc. v. President & Fellows of
Harvard College, 445 Mass. 745, 749 (2006). "Ordinarily, where
the language of a statute is plain and unambiguous, it is
conclusive as to legislative intent. That said, we will not
adopt a literal construction of a statute if the consequences of
doing so are absurd or unreasonable, such that it could not be
what the Legislature intended" (quotation and citations
omitted). Cianci v. MacGrath, 481 Mass. 174, 178 (2019). Our
principal objective is to ascertain and effectuate the intent of
the Legislature in a way that is consonant with "common sense
and sound reason" (citation omitted). Commonwealth v. Curran,
478 Mass. 630, 633-634 (2018).
8
Both § 15, the road defect statute, and § 18, the notice
statute, are part of G. L. c. 84, entitled "Repair of Ways and
Bridges."3 Section 1 announces the purpose of the chapter, using
language that reflects its origins in the preindustrial era.
The first sentence of § 1 states: "Highways and town ways,
including railroad crossings at grade with such highways and
town ways, shall be kept in repair at the expense of the town in
which they are situated, so that they may be reasonably safe and
convenient for travelers, with their horses, teams, vehicles and
carriages at all seasons."4
The road defect statute imposes liability for personal
injury or property damage by reason of a defect or want of
repair in or upon a way.5 In relevant part, § 15 states:
3 The Tort Claims Act, G. L. c. 258, preserves the status
and force of G. L. c. 84, thereby providing limited governmental
liability for defects in ways. See Gallant v. Worcester, 383
Mass. 707, 711 (1981).
4 The rest of G. L. c. 84, § 1, provides for cities and
towns to submit requests for repair and reimbursement for the
cost of repairs to the Commonwealth. Neither reimbursement from
the State nor the relative degree of liability of a city versus
the State or Federal government is relevant to the instant case.
5 "Our decisions have construed a 'defect,' for purposes of
G. L. c. 84, [§ 15,] to be anything in the state or condition of
the way that renders it unsafe or inconvenient for ordinary
travel." Gallant, 383 Mass. at 711. Objects on the road
surface creating obstructions to travel are defects. Huff v.
Holyoke, 386 Mass. 582, 585 (1982). In particular, an
improperly positioned maintenance hole cover may constitute a
defect. See Valade v. Consolidated Bldrs., Inc., 3 Mass. App.
Ct. 519, 520 (1975).
9
"If a person sustains bodily injury or damage in his
property by reason of a defect or a want of repair or a
want of a sufficient railing in or upon a way, and such
injury or damage might have been prevented, or such defect
or want of repair or want of railing might have been
remedied by reasonable care and diligence on the part of
the county, city, town or person by law obliged to repair
the same, he may, if such county, city, town or person had
or, by the exercise of proper care and diligence, might
have had reasonable notice of the defect or want of repair
or want of a sufficient railing, recover damages therefor
from such county, city, town or person; but he shall not
recover from a county, city, town or local water and sewer
commission more than one fifth of one per cent of its state
valuation last preceding the commencement of the action nor
more than [$5,000]; nor shall a county, city or town be
liable for an injury or damage sustained upon a way laid
out and established in the manner prescribed by statute
until after an entry has been made for the purpose of
constructing the way, or during the construction and
repairing thereof, provided that the way shall have been
closed, or other sufficient means taken to caution the
public against entering thereon."
The notice statute requires a person injured by a road
defect within the meaning of § 15 to give notice as a condition
precedent to the bringing of a legal action pursuant to that
section. In full, § 18 states:
"A person so injured shall, within thirty days thereafter,
give to the county, city, town or person by law obliged to
keep said way in repair, notice of the name and place of
residence of the person injured, and the time, place and
cause of said injury or damage; and if the said county,
city, town or person does not pay the amount thereof, he
may recover the same in an action of tort if brought within
three years after the date of such injury or damage. Such
notice shall not be invalid or insufficient solely by
reason of any inaccuracy in stating the name or place of
residence of the person injured, or the time, place or
cause of the injury, if it is shown that there was no
intention to mislead and that the party entitled to notice
was not in fact misled thereby. The words 'place of
residence of the person injured,' as used in this and the
10
two following sections, shall include the street and
number, if any, of his residence as well as the name of the
city or town thereof. Failure to give such notice for such
injury or damage sustained by reason of snow or ice shall
not be a defense under this section unless the defendant
proves that he was prejudiced thereby."
As mentioned, the language of a statute is conclusive as to
legislative intent where it is unambiguous. Cianci, 481 Mass.
at 178. Here, however, where governmental and nongovernmental
parties are involved, and the party responsible for the
particular defect and the party responsible for the roadway
differ, application of the road defect statute is not perfectly
clear. In particular, where a private party is responsible for
the particular defect but not the roadway, it is unclear whether
such a party is covered by the statute.
We conclude that the road defect statute, like the notice
statute, is meant to apply to the public duty to maintain the
roadway and does not apply to a private entity responsible for a
particular defect in the road. The Legislature did not intend
to separate responsibility for the roadway from responsibility
for the defect and provide liability to one and notice to the
other. The statutes are directed at governmental liability for
roadways and the defects thereon. Furthermore, where the
Legislature included the word "persons," it did so for a very
limited historical purpose: to include private parties once
responsible for entire roadways. As will be explained infra,
11
this court, in an opinion authored by Justice Oliver Wendell
Holmes, Jr., clarified this confusing point in Fisher v.
Cushing, 134 Mass. 374 (1883). In sum, the road defect and
notice statutes provide for liability and notice to governmental
and quasi governmental entities responsible for the roadways.
Private parties are not covered by these statutes when they
cause particular defects in public roadways; rather, they are
subject to suits in tort. This becomes evident with 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.
We begin with the statutory language. Notably, both the
liability and notice provisions refer to "the county, city, town
or person by law obliged," but the words following that phrase
differ. Section 15, the road defect statute, allows for the
recovery of damages from the entity "by law obliged to repair
the same." Section 18, the notice statute, requires notice to
the entity "by law obliged to keep said way in repair." The
antecedent of "the same" in § 15 could be "a way" or "such
defect." Under the former interpretation, the liability imposed
by § 15 and the notice required by § 18 concern the same entity;
under the latter interpretation, potentially separate entities.
Our default assumption, however, is that the Legislature intends
words to have the same meaning when used in closely proximate
12
sections of a particular chapter. See Insurance Rating Bd. v.
Commissioner of Ins., 356 Mass. 184, 188–189 (1969) ("Where the
Legislature uses the same words in several sections which
concern the same subject matter, the words must be presumed to
have been used with the same meaning in each section" [quotation
and citation omitted]). The word "repair" elsewhere in G. L.
c. 84 also refers to performing repairs on a particular
structure that a town is required to keep in repair. See G. L.
c. 84, § 22 ("If a town neglects to repair any way which it is
obliged to keep in repair . . ."). "Repair" also refers to
repairing "ways and bridges" in the title of c. 84. See
American Family Life Assur. Co. v. Commissioner of Ins., 388
Mass. 468, 474, cert. denied, 464 U.S. 850 (1983) ("It is well
established that, although the title of an act cannot control
the plain provisions of the act, it may aid construction of
ambiguous clauses").
The earliest version of the road defect statute, St. 1786,
c. 81, § 7, authorized persons injured by "any defect, or want
of necessary repair and amendment of any highway, causeway or
bridge" to "recover of the county, town, the person or persons,
who are by law obliged to keep the same highway, causeway, or
bridge in repair" (emphasis added). The truncation of this
phrase to "the same" first occurred in St. 1850, c. 5, § 1,
which stated that if a person is injured by "any defect or want
13
of repair, or of sufficient railing in or upon any highway,
townway, causeway, or bridge, he may recover . . . of the
county, town, or persons who are, by law obliged to repair the
same" (emphasis added). The legislative history demonstrates
that the phrase "the same" refers to certain types of ways or
other structures to be kept in repair. It did not draw a
distinction between responsibility for the way and
responsibility for a particular defect in the way.
The structure and purpose of § 18, the notice statute, also
confirm this reading. See New England Power Generators Ass'n v.
Department of Envtl. Protection, 480 Mass. 398, 410 (2018) ("The
court does not determine the plain meaning of a statute in
isolation but rather in consideration of the surrounding text,
structure, and purpose . . ." [quotations and citation
omitted]). Section 18 would not make sense if the party whose
defect caused the injury was not the same as the one receiving
the notice: it also conditions the right to maintain an action
on the refusal of the "said county, city, town or person" that
received the notice to "pay the amount" of the plaintiff's
damages. It would be illogical to require a plaintiff to send a
demand letter to a nonliable party (i.e., the party responsible
for the way) as a condition precedent to bringing suit against a
wholly different liable party (i.e., the party responsible for
the defect). See Curran, 478 Mass. at 633-634 (statutory
14
interpretation must conform to common sense). Additionally,
§ 18 states that notice shall not be invalid "solely by reason
of any inaccuracy in stating the . . . place or cause of the
injury, if it is shown that there was no intention to mislead
and that the party entitled to notice was not in fact misled
thereby." If there was an obligation to give notice to the
party who created the particular defect, as opposed to the party
responsible for the way, this good faith exception would make
little to no sense, because that good faith error would mean
that notice would be adequate even when it was given to the
incorrect party.
Finally, reading the different provisions of G. L. c. 84
together demonstrates that the obligation to keep a road in
repair in § 1 and the liability for defects in a road in § 15
are tightly connected and concern the same party. See Gregory
v. Inhabitants of Adams, 14 Gray 242, 246 (1860) ("These
provisions, although contained in different statutes, yet having
the same general object in view, should undoubtedly be construed
in reference to each other. The former prescribes the standard
of duty imposed upon towns; the latter fixes the responsibility
which will devolve upon them, if injury results from their
failure to conform to the requirements of the law"). The notice
15
regarding the incident that created that liability likewise goes
to this same party.6
We emphasize that, in scenarios where multiple governmental
or quasi governmental parties may have repair duties with
respect to a particular way, assigning responsibility for the
way may be difficult and notice should be provided to each
party. Wolf v. Boston Water & Sewer Comm'n, 408 Mass. 490
(1990), exemplifies this issue. In that case, a plaintiff was
injured by the collapse of an asphalt patch placed by the
commission on a Boston street. Id. at 491. The commission was
a "political subdivision" of the Commonwealth. Farrell v.
Boston Water & Sewer Comm'n, 24 Mass. App. Ct. 583, 588 (1987).
6 This interconnection is particularly clear from the
statute that created the notice requirement, "An Act . . . in
relation to the repair of highways, and remedies for injuries
sustained thereon." St. 1877, c. 234. Section 1 imposed the
duty to repair ("Highways, town ways, streets, causeways and
bridges shall be kept in repair at the expense of the town, city
or place in which they are situated . . ."). Section 2 created
liability for failure to fulfill that repair duty ("If a person
receives or suffers bodily injury, or damage in his property,
through a defect or want of repair, or of sufficient railing in
or upon a highway, town way, causeway or bridge, which might
have been remedied, or which damage or injury might have been
prevented by reasonable care and diligence on the part of the
county, town, place or persons by law obliged to repair the
same, he may recover in the manner hereinafter provided, of the
said county, town, place or persons, the amount of damage
sustained thereby . . ." [emphasis added]). Section 3 imposed
the notice requirement on plaintiffs ("Any person injured in the
manner set forth in the preceding section shall within thirty
days thereafter give notice to the county, town, place or
persons by law obliged to keep said highway, town way, causeway
or bridge in repair . . ." [emphasis added]).
16
Under its enabling act, it was granted "all . . . obligations
of the city" with respect to sewer and water systems, defined as
"all . . . lands, easements, rights in land . . . and any other
property, real or personal, incidental to and included in such"
systems. Wolf, supra at 493, quoting St. 1977, c. 436, §§ 2, 5.
It was also given the power "to enter onto any land within the
city" to conduct "examinations" in the course of maintaining and
repairing its systems, provided that the commission "restore
such lands to the same condition." Wolf, supra, quoting St.
1977, c. 436, § 6 (g). In other words, the commission had the
power to excavate entire streets and the corresponding duty to
"repair the roadway." Wolf, supra. It therefore had a public
duty to maintain the way and was entitled to notice under the
statute. By contrast, a private company that lacked these
powers would not have had the duty under § 15 with which we
concluded the commission was vested.7
7 In Hurlburt v. Great Barrington, 300 Mass. 524, 528
(1938), we stated that the "maintenance and the repair of
sidewalks are not matters which may well be entrusted to two
distinct municipal bodies." There, we concluded that a town was
relieved of road defect liability when the Legislature had given
a "fire district, a quasi corporation, all matters connected
with the construction, the maintenance and the repair of
sidewalks situated within the limits of the district." Id. at
529. This is in contrast to the facts in Wolf, where we
concluded that the powers of the Boston water and sewer
commission to excavate any streets within the city, provided
that it made repairs, made it a party "obliged by law to repair
the roadway," even though the city may also have remained
obliged to repair the street. Wolf v. Boston Water & Sewer
17
b. The meaning of "person by law obliged to keep" the way
"in repair" as clarified by the legislative history and case
law. Our interpretation of the road defect and notice statutes
is clarified by the historical understanding of the meaning of
"person" in the statutes. Veolia argues that the plain language
of the statutes applies equally to private and governmental
entities. By contrast, Meyer claims that the legislative and
legal history of the statutes demonstrates that the Legislature
intended "persons" to apply only to governmental actors, not
private for-profit corporations such as Veolia. Based on our
review of this legal and legislative history, we conclude that
that the statutes refer to the county, city, town, or person
required to perform the public duty of maintaining the way and
not to a private corporation that causes a defect in the way,
even where the private entity has been authorized by a
governmental entity to perform a particular function causing a
defect in the way and the governmental entity seeks to transfer
its responsibility for the defect to the private entity. Such
private entities may be sued in tort, as has been the case
historically.
Comm'n, 408 Mass. 490, 493 (1990). See Ram v. Charlton, 409
Mass. 481, 486 (1991) (both town and Commonwealth parties
obligated by law to keep State highway in repair). Indeed, § 15
expressly names sewer and water commissions as potentially
liable parties.
18
Before 1786, the road defect statute only specified
counties and towns as liable parties. See The Book of the
General Lawes and Libertyes Concerning the Inhabitants of the
Massachusets 6-7 (1660); St. 1693-1694, c. 6, § 6. The 1786
"Act making provision for the repair and amendment of highways"
first authorized a party injured by a road defect to bring a
civil action for damages against "the county, town, the person,
or persons, who are by law obliged to keep the same highway,
causeway, or bridge in repair" (emphasis added). St. 1786,
c. 81, § 7.8 The 1786 statute did not, however, expressly define
the term "persons."9
8 Statute 1786, c. 81, § 1, imposed a general repair duty on
inhabitants of particular localities with respect to "highways,
town-ways, causeways, and bridges." In turn, St. 1786, c. 81,
§ 7, imposed liability for defects in these same structures:
"And be it further enacted by the authority aforesaid, that if
any person shall lose a limb, break a bone, or receive any other
injury in his person, or in his horse, team, or other property,
through any defect, or want of necessary repair and amendment of
any highway, causeway, or bridge; the person or persons injured
thereby, shall and may recover of the county, town, the person,
or persons, who are by law obliged to keep the same highway,
causeway, or bridge in repair, in case they had reasonable
notice of the defect, double the damages thereby sustained, by a
special action of the case, before any Court proper to hear and
determine the same."
9 Consistent with the earlier statutes, a marginal note in
the first printed edition of St. 1786, c. 81, § 7, summarized
its provisions as "[d]amage happening through defects in ways or
bridges, shall be made good by the county or town." The
Perpetual Laws of the Commonwealth of Massachusetts 377 (1789).
To the extent the 1786 Legislature viewed "persons" as
encompassing corporate entities, they likely would have had in
mind municipal corporations. See Maier, The Debate over
19
In Fisher, 134 Mass. 374, authored by Justice Holmes, the
court interpreted the road defect and notice statutes, and the
meaning of the reference to "persons," in the course of
reviewing the statutes' legislative and legal history. As a
noted scholar of legal history and the author of The Common Law
(1881), Justice Holmes brought special knowledge and expertise
to this interpretation. The defendant in Fisher was sued for
negligently maintaining a coal hole on a Boston sidewalk. Id.
at 374.10 Under the city ordinances, the owner was required to
keep the coal hole and its covering "in good order at all times"
and was liable to the city for any damages incurred by reason of
the coal hole being "out of repair" or negligently covered.
Revised Ordinances of the City of Boston 171-172 (1882). The
defendant claimed that he did not receive the thirty days'
Incorporations, in Massachusetts and the New Nation 76 (C.
Wright ed., 1992) (of approximately one hundred incorporating
acts passed by 1780s Legislature, two-thirds concerned local
governmental bodies, with "only a handful" concerning what would
later be considered business corporations).
10A coal hole was an underground vault covered by a hatch
with a cover where coal used for heating purposes was kept for
easy access. See S.P. Adams, Home Fires: How Americans Kept
Warm in the Nineteenth Century 105-106 (2014). Under the city
ordinances then in force, construction of a coal hole in the
sidewalk required a license from the superintendent of streets
and had to be built to certain specifications. Revised
Ordinances of the City of Boston 171-172 (1882). Negligence
suits from pedestrians in public ways alleging that defendants
had improperly covered their coal holes were common. See, e.g.,
Gillis v. Cambridge Gas Light Co., 202 Mass. 222, 223 (1909);
French v. Boston Coal Co., 195 Mass. 334, 335 (1907).
20
notice to which he was entitled under the notice statute and
therefore that the action could not be maintained.
The court rejected this argument: "The sections imposing
liability to an action, from the St. of 1786 down, have been
part of a statutory scheme creating or regulating a public duty
to keep the highways in repair. The whole scope of that scheme
shows that it is directed to the general public duty [to keep
the way in repair], and that it has no reference to the common
law liability for a nuisance." Fisher, 134 Mass. at 374-375.
More specifically, "[t]he obligation of the 'persons' is the
same obligation as that of the counties or towns mentioned
alternatively with them," that is, the duty to maintain the
highway. Id. at 375. "But the obligation of the defendants
cannot properly be called an obligation to repair the
highway. . . . It is a duty not to dig or maintain pits in the
highway." Id. That duty, the court concluded, is different
from the public duty to maintain the highway covered by the road
defect statute. The court therefore held that the defendants
could be sued in tort for the nuisance they created with their
coal hole.
The court also went on to explain the meaning of "persons":
"The mention of 'persons' in the statute, alongside of counties
and towns obliged to repair, is easily explained. The outline
of our scheme was of ancient date and English origin. In
21
England, while parishes were generally bound to repair highways
and bridges, a person might be, ratione tenurae,[11] or otherwise.
. . . [W]e cannot say, and probably the Legislature of 1786
could not have said, that there were no cases in the
Commonwealth where persons other than counties or towns were
bound to keep highways in repair. . . . Even if there were not,
it was a natural precaution to use the words." Fisher, 134
Mass. at 375-376.
Consistent with the holding in Fisher, we frequently
allowed tort suits to proceed against individuals or private
companies that caused road defects, while applying the statutes
to the municipal entities responsible for maintaining the ways
themselves.12 Notably, in a case with comparable facts to the
11"Ratione tenurae" is a Latin phrase meaning by reason of
tenure. Black's Law Dictionary 1454 (10th ed. 2014). "One
ground on which a private person may be held liable to repair a
public footpath or other highway is 'ratione tenurae,' that is,
that where a footpath runs through private land and the owner or
occupier of that land has from time immemorial repaired the
path, the person for the time being in possession must continue
to repair the path." Legal Memory, 73 Law J. 403, 409 (1932).
12For cases where private actors were sued directly in tort
for injuries arising from defects they caused in a public way,
see, e.g., Christman v. Shagoury Constr. Co., 349 Mass. 113, 115
(1965) (construction company that contracted with town to
install maintenance holes could be held liable in tort for road
defect in area of road around maintenance hole); Scholl v. New
England Power Serv. Co., 340 Mass. 267, 270 (1960) (electric
company and subcontractor company could be held liable to
plaintiff for injuries sustained when she fell into excavated
hole made by subcontractor as part of resurfacing project for
city); McGinley v. Edison Elec. Illuminating Co., 248 Mass. 583,
22
instant one, a plaintiff was injured by a protruding maintenance
hole cover that the defendant electric company had laid "in [a]
public way" in conformity with specifications imposed by the
city. Miller v. Edison Elec. Illuminating Co., 283 Mass. 517,
521-522 (1933). The company argued that the plaintiff's suit
was barred because he did not provide notice pursuant to § 18.
Id. at 522. We rejected this argument: relying on Fisher, we
concluded that § 18's "requirement of notice is not applicable
. . . in an action against private corporations or individuals."
Id. Accord Regan v. John J. Amara & Sons Co., 348 Mass. 734,
737 (1965) (no notice required under § 18 in suit against
defendant private contractor that acted negligently in failing
to fill hole it made in public road while performing work for
city); Seltzer v. Amesbury & Salisbury Gas Co., 188 Mass. 242,
243–244 (1905) (no notice required under § 18 against defendant
gas company for "digging a pit and leaving it insufficiently or
587 (1924) (defendant company liable for negligence after
plaintiff fell into unguarded open maintenance hole); Rockwell
v. McGovern, 202 Mass. 6, 10 (1909) (contractor whom city had
hired to complete excavation project for transit system could be
held liable to plaintiff who was injured when part of sidewalk
collapsed); Seltzer v. Amesbury & Salisbury Gas Co., 188 Mass.
242, 244 (1905) (defendant gas company could be held liable for
injuries sustained by plaintiffs who fell into excavated trench
that defendant failed to properly fill). See also note 10,
supra (citing cases involving private companies sued for
negligent maintenance of coal holes on public ways).
23
improperly filled, thus creating an obstruction to public
travel").
Finally, we emphasize that we have not allowed government
entities to assign or delegate their public responsibilities
under the road defect statute. As we explained in Scholl v. New
England Power Serv. Co., 340 Mass. 267, 270-271 (1960), the
"liability of a municipality under G. L. c. 84, § 15, for an
injury to a traveller sustained by reason of a defect in a way
attaches," even though the plaintiff may also have a claim
against a private party, because the "statutory obligation of
the city to keep [a public way] safe and convenient for public
use could not be delegated to" private companies contracted to
do particular road repairs. Accord Torphy v. Fall River, 188
Mass. 310, 312 (1905) (despite hiring railroad company to
reconstruct certain public streets, city "not deprived of this
right of control [over the streets], nor relieved of its
statutory duty" and could not "delegate this requirement" to
"secure exemption from liability to those suffering injury");
Brooks v. Inhabitants of Somerville, 106 Mass. 271, 274 (1871)
("not in the power of the town . . . to delegate the care of the
streets to [private contractor hired to construct water system]
as to relieve themselves from their general responsibility for
their safety and convenience"); Merrill v. Inhabitants of
Wilbraham, 11 Gray 154, 156 (1858) (town's authorization of
24
aqueduct company to excavate road "did not discharge the town
from liability for an injury occasioned by reason thereof upon
the highway").
We emphasize today that the court in Fisher and the long
line of authority discussed supra correctly interpreted the
meaning of the road defect statute. In these decisions, the
court recognized that this statute is directed at a public duty
for maintaining the way, not at private actors causing
particular defects in the way; the latter are subject to
liability in tort. The statutory exclusive remedy applies only
to those entities that have a public duty to maintain the way,
not to private parties causing particular defects.
Unfortunately, there are also a limited number of cases
that have confused or at least not clarified this distinction.
We clarify the confusion in these cases today. Much of it can
be traced back to Dickie v. Boston & Albany R.R., 131 Mass. 516
(1881). There, we concluded that the statutes were applicable
to a railroad corporation and not to the town where the railroad
had been authorized by statute and the railroad's charter to
keep an entire bridge in repair. Thus, the town "was under no
liability" to keep the bridge under repair "because other
sufficient provision is made by law for its maintenance and
repair." Id. at 516. In this context, we concluded that the
"word 'persons' includes corporations, and applie[d] to the
25
defendant." Id. at 517.13 A line of cases relying on Dickie,
particularly a number involving railroads, applied the statutes
to private parties, without addressing the specific statutes
involved in Dickie that imposed liability on the railroad for
the way. See, e.g., Murphy v. Boston & Me. R.R., 332 Mass. 123,
123 (1954) (railroad corporation entitled to notice under
statute, where injury occurred on its train tracks crossing
public road; citing Dickie, supra). Such cases were the
exception and not the rule.14 They nonetheless blurred the
distinction between the public entities responsible for
13Notably, in the late Nineteenth Century, a "railway
company" was regarded as a "quasi public corporation." Haupt v.
Rogers, 170 Mass. 71, 78 (1898). See 18 Am. Jur. 2d
Corporations § 31 (2019) (defining "quasi-public corporation" as
"private corporation that has been given certain powers of a
public nature, such as the power of eminent domain, in order to
enable it to discharge its duties for the public benefit"). The
only private corporations that we have ever concluded were
subject to the road defect statute were "quasi-public" railroad
or street railway corporations.
14See, e.g., Bailey v. Boston, 116 Mass. 423, 423 (1875)
("A city or town is not exempted from liability for a defect in
a highway, because it is caused by misconduct or negligence in
the construction or repair of a street railway"); Hawks v.
Inhabitants of Northampton, 116 Mass. 420, 423 (1875)
(concluding that despite "burden of certain partial repairs of
the highway" placed on company by statute, town retained
"general control . . . and with it the liability which has
always existed for injuries occasioned by want of repair");
Middlesex R.R. v. Wakefield, 103 Mass. 261, 263 (1869) (right
conferred by charters of street railway companies to use roads
"does not give them the control of the highways. . . . [T]hat
control is placed, or, more properly speaking, remains, in the
municipal authorities of the places in which any part of the
street railway is laid").
26
maintaining the way and private entities responsible for defects
in the way but not the way itself.
We added to that confusion in Ram v. Charlton, 409 Mass.
481, 490, cert. denied, 502 U.S. 822 (1991), a case involving a
suit against a town and the Commonwealth to recover damages for
injuries sustained on a State highway that passed through the
town, where we stated that "[b]oth private parties and
governmental entities are entitled to notice within thirty days
when a defect in a way under their control is alleged under
G. L. c. 84, § 15." The ultimate source of this statement was
Dickie. We should have been clearer that notice is only owed to
the entity that has the public duty for maintaining the way,
which in that case could have only been a governmental party.
To the extent that this dictum suggested that G. L. c. 84, its
notice requirements, and the exclusive remedy provision apply to
private companies responsible for particular defects in the road
-- a conclusion that would be inconsistent with Fisher and the
other cases discussed supra -- that statement was in error.15
15We accordingly overrule Sarrouf v. Boston, 94 Mass. App.
Ct. 901, 901 (2019); Filepp v. Boston Gas Co., 85 Mass. App. Ct.
901, 901 (2014); and Bartholomew v. Charter Communications,
Inc., 84 Mass. App. Ct. 1104 (2013), in which the Appeals Court
relied on Ram to hold that suits against private corporations
based on defects that they created in public roads must be
dismissed for failure to give notice to the companies under
§ 18. In these and other cases, the Appeals Court noted the
inequity of the rule requiring notice for the particular defect.
See Sarrouf, supra at 902 (court noted that motion judge found
27
c. The practicalities of thirty days' notice. Our
interpretation that the statutes are directed at the
governmental or quasi governmental entity or entities
responsible for the public duty of maintaining the way as a
whole, but not at private parties responsible for a particular
defect in the way, recognizes the practical realities of the
thirty-day notice provision and respects the Legislature's
intent when it imposed this tight time constraint. Notice
within thirty days is a difficult time frame to meet. The
Legislature has nevertheless decided that this time frame is
necessary to "safeguard public defendants against frivolous
claims and excessive liability by allowing such defendants to
investigate and remedy any defects expeditiously, and by
allowing them to evaluate claims and to determine at an early
stage whether liability could be imposed against them"
that plaintiff had engaged in "diligent, but unsuccessful search
of city records" and was unable to identify Boston Gas Company
as potentially responsible party); Filepp, supra at 901-902
(after explaining that it was constrained by Wolf, and
recognizing tight thirty-day deadline, court noted Legislature
was appropriate body to consider making time frame longer). See
also Farrell v. Boston Water & Sewer Comm'n, 24 Mass. App. Ct.
583, 587 n.9, 590-591 (1987) (although recognizing that "to
require separate notice within thirty days from an injured party
to the commission was unfair since such a person would naturally
assume the entire sidewalk to be owned by the city, to which
timely notice was given," court held that injured plaintiff
could not bring action for alleged road defect under § 15
against commission because she had not given notice to
commission).
28
(citations omitted). Ram, 409 Mass. at 490-491. This notice
requirement is reasonable so long as it applies only to those
governmental or quasi governmental entities responsible for
maintaining the way. An entirely different set of problems
arises if notice must be given to private parties responsible
for particular defects in the way.16
Identifying who is responsible for the way itself is
practicable within thirty days. This also allows and
incentivizes the entity responsible for the way, and most
knowledgeable of who is responsible for the defect, to correct
the problem as quickly as possible. See Ram, 409 Mass. at 490-
491. The alternative reading -- that the notice statute instead
requires notice to the private party responsible for the
particular defect -- would impose an unrealistic deadline and
create a trap for the unwary. Identifying a private party
responsible for a particular defect within that time frame is
extremely difficult, especially without the full cooperation of
the city, town, or other governmental or quasi governmental
This is also consistent with our recognition that
16
applying the Tort Claims Act to a private limited liability
company would not serve the purpose of that act, which is to
"protect public funds." Acevedo v. Musterfield Place, LLC, 479
Mass. 705, 710 (2018). See Gallant, 383 Mass. at 711 (road
defect statute consistent with "purpose underlying the [T]ort
[C]laims [A]ct, viz., to institute a rational scheme of
governmental liability that is consistent with accepted tort
principles and the reasonable expectations of the citizenry with
respect to its government" [quotation and citation omitted]).
29
entity responsible for the way itself, which may have contracted
the work causing the defect to many different entities.
Municipal workers have competing responsibilities that make
their immediate and continuous cooperation undependable.17 We
discern no such intention.
Moreover, the rest of G. L. c. 84 contains numerous
accommodations intended to ensure that an injured person who
strives in good faith to comply with the notice requirement is
not barred from bringing a claim, indicating an over-all
intention to provide leniency in the notice requirement.18
17It may be particularly difficult to identify the
corporate owner of a maintenance hole cover, as many older
covers are "totally unidentified," and "[o]ne is left to
conjecture their ownership and function." M. Melnick, Manhole
Covers 29 (1994). Even where a cover does reveal some
identifying information, an injured person would still be
required to return to the scene of injury, search a cover and
municipal records for identifying information, determine whether
the corporation or a successor exists, and track down and serve
the appropriate corporate entity within thirty days, a most
difficult task in such a tight time frame.
18General Laws c. 84, § 18, provides that notice "shall not
be invalid or insufficient" if the injured person inaccurately
states "the name or place of residence of the person injured, or
the time, place or cause of the injury, if it is shown that
there was no intention to mislead and that the party entitled to
notice was not in fact misled thereby."
General Laws c. 84, § 19, entitled "Service of notice,"
requires that notice be in writing and specifies to whom notice
must be given in the case of a county, city, town, or person.
Making clear that its provisions are forgiving, § 19 provides
that "[a]ny form" of written communication signed by the injured
person, or by some person acting on his or her behalf, that
includes "the information that the person was so injured, giving
30
In sum, the statutory language, the legislative and legal
history, the case law, and the practicalities of the thirty-day
notice provision all lead to the conclusion that, although the
road defect statute provides the exclusive remedy against a
governmental or quasi governmental entity responsible for
maintaining a way, that statute and the accompanying notice
statute were not meant to displace the common-law remedy against
a private party responsible for a defect in the way. Here, both
G. L. c. 84, § 1, and the city's municipal code unambiguously
place the obligation to maintain and repair the streets of
Boston on the city. See Boston Municipal Code § 11-6.1 (2010)
(commissioner of public works will "have charge of and keep
clean and in good condition and repair the streets"). Veolia's
assumption of the "burden of certain partial repairs of the
the name and place of residence of the person injured and the
time, place and cause of the injury or damage, shall be
considered a sufficient notice." Moreover, in an instance where
"physical or mental incapacity" renders it "impossible for the
person injured to give the notice within the time required, he
may give it within thirty days after such capacity has been
removed."
General Laws c. 84, § 20, entitled "Omissions in notice;
notice of insufficiency," offers amnesty to an injured person
who has inaccurately stated the time, place, or cause of the
injury. Under this section, a defendant may "avail himself" of
the insufficiency of the plaintiff's notice only if the
recipient notifies the plaintiff in writing within five days of
receipt that the defendant finds the plaintiff's notice
inadequate and requests a written notice that conforms with the
statutory requirements. If the injured person complies, this
revised notice "shall have the effect of the original notice."
31
highway" in connection with its limited occupation of a portion
of the street does not transform it into the party obliged by
law to maintain the entire street. Hawks v. Inhabitants of
Northampton, 116 Mass. 420, 423 (1875). See Scholl, 340 Mass.
at 272 (city "responsible because of failure to abate the defect
by whomsoever created" and thus may be liable under road defect
statute [quotation and citation omitted]); Snow v. Housatonic
R.R., 8 Allen 441, 443 (1864) ("remedy which the [road defect]
statute gives for such injuries against towns is only cumulative
or additional to that which the party injured has at common law
against the person by whose agency the obstruction or defect was
caused or permitted to continue"). Veolia's repair obligations
are "confined to the specific spot where the [utility cover] is
. . . -- exists only by reason of the [cover], and not as part
of a general duty to repair." Fisher, 134 Mass. at 375.19 This
case is comparable to the many other instances where courts have
held private companies liable in tort for injuries caused by
defects that they created in a public way, including for
misaligned or otherwise defective maintenance hole covers. See
19 Indeed, the city's municipal code specifically
contemplates that liability will attach in the first instance to
the city because it requires Veolia to indemnify the city
"against all claims and demands of all persons for damages,
costs, expenses or compensation for, on account of, or in any
way growing out of, or the result of any surface defect
occurring wholly or in part within the area described in [§] 11-
6.20." Boston Municipal Code § 11-6.21 (1983).
32
Miller, 283 Mass. at 522. See also note 12, supra (citing
cases). Accordingly, Meyer's failure to give notice to Veolia
within thirty days of injury does not affect his ability to
proceed against Veolia in a common-law negligence action.
3. Conclusion. For the foregoing reasons, we reverse the
grant of summary judgment to Veolia.
So ordered.