Massachusetts General Laws, Chapter 84, Section 15 establishes and limits the liability for bodily injury and property damage on city roads and private roads. It does not cover other forms of damage, such as wrongful death.
This chapter is the exclusive remedy for a claim of personal injury or property damage against governmental entities responsible for defects in a way (Gallant v. Worcester, 383 Mass. 707, 1981; Huff v. Holyoke, 386 Mass. 582, 1982). Therefore, the limitations and exclusions cannot be circumvented by establishing liability for property damage and bodily injury on a different section.
In the following, we will break down the text of this section and discuss each of its parts:
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,
Although the article mentions a person, the person should be a traveler on the road at the time of his injury (Wershba v. Lynn, 324 Mass. 327, 1949). Someone sitting in a vehicle sheltering from the rain which had interrupted his work (Id), or someone using the highway for play (Blodgett v. Boston, 90 Mass. 237, 1864) is not a traveler. On the other hand, someone does not cease being a traveler by stopping to look in a window (Hunt v. Salem, 121 Mass. 294, 1876), a playful act by child while traveling (Gulline v. Lowell, 144 Mass. 491, 1887), stopping to watch children play (Bliss v. South Hadley, 145 Mass. 91, 1887), stopping to unload (Smethurst v. Barton Square Church, 148 Mass. 261, 1889), pausing to watch the removal of a tree (Donohue v. Newburyport, 211 Mass. 561, 1912), or stopping to wait for companions (O’Donnell v. North Attleborough, 222 Mass. 591, 1916).
The damage should be the result of:
- A road defect;
- Something that needs to be repaired (such as a pothole); or
- The lack of a guard rail or divider.
Furthermore, there cannot be another factor that contributed the the damage, such as negligence (Tomasello v. Commonwealth, 398 Mass. 284, 1986). This is the “sole cause” rule. If there are other causes, for example if the driver was texting or if another driver made an error, the road owner is not liable under this section. Causality needs to be proven by a preponderance of the evidence, that means that it should be more likely that the injury was caused by one of the three situations listed above, than from another cause (Howe v. Boston, 311 Mass. 278, 1942).
If the other factor is a human act, it only precludes liability if it is a negligent act. An innocent act, even if it intervenes between the defect and the injury, does not count as another cause (Carroll v. Lowell, 321 Mass. 98, 1947; Hayes v. Hyde Park, 153 Mass. 514, 1891; McMahon v. Harvard, 213 Mass. 20, 1912). Working for 14 hours and then driving 200 miles is not negligent, unless the driver has limited strength or endurance (Mendelin v. West Boylston, 331 Mass. 597, 1954). When a person is asleep behind the wheel, the test in determining the issue of gross negligence is not the length of time that a person at the wheel has been asleep but whether he fell into that condition in circumstances where he might have taken steps to avoid it (Flynn v. Hurley, 332 Mass. 182, 1955). Rear-ending another vehicle, which is usually ruled as negligence, is not necessarily negligence in extraordinary circumstances (Woolner v. Perry, 265 Mass. 74, 1928).
Lastly, liability requires that the city or person responsible for the road could have prevented the accident, or might have repaired the road, or added a divider, had they taken proper care. In other words, the owner of the road has been negligent.
This section does not apply to a way which has been discontinued as a public way (Boyce v. Templeton, 335 Mass. 1, 1956). A city or town is not liable for defects of such roads.
Damages for bodily injury include time lost in employment, impairment of earning capacity, sums paid for medical attendance, and mental suffering, if they directly follow from, and are natural and probable results of the bodily injury (Lewis v. Springfield, 261 Mass. 183, 1927). Damage can also include an injury that was suffered at a later moment (Whalen v. Boston, 304 Mass. 126, 1939).
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;
If a road owner has been negligent, they have to pay for damages, but only if they were (or should have been) aware of the road defect, the need to repair, or the need to add a divider.
You need to prove that either the city was aware of the defect, or in the exercise of proper care and diligence might have known of it, and remedied it (Gregoire v. Lowell, 253 Mass. 119, 1925). You could show that a city was aware of a defect by consulting the history of 311 calls. The following cities have an online 311 archive:
If a condition exists for three weeks, the officials of the town might in the exercise of reasonable care might have known of it (Dillon v. Framingham, 288 Mass. 511, 1934). The conditions of the defect could be used to argue that it has existed long enough that the city might have known in the exercise of reasonable care and diligence, such as a hole with worn smooth edges (Cook v. Boston, 266 Mass. 159, 1929), a lifted piece of cement slab in a period without frost (Kelly v. Springfield, 328 Mass. 16, 1951), or rotten leaves and sweepings in the bottom of a hole (Saunders v. Medford, 304 Mass. 464, 1939). If a condition existed for an hour, that is not long enough that the city might have known (Gregoire v. Lowell, 253 Mass. 119, 1925).
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 five thousand dollars; 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 liability of a city, town, or water and sewer commission is limited to $5,000 per individual. They are not liable if it is a brand new road that has not yet been opened, or if the road is closed for repairs, or if the road is being repaired and you are cautioned not to enter. They are also not liable if it is obvious that a road is being repaired and you knew the road is being repaired (Pratt v. Peabody, 281 Mass. 437, 1933). Liability is also limited to 0.2% of the valuation of the city. You do not have to show the city’s value (Trites v. Melrose, 318 Mass. 378, 1945).
If the road is owned by private individuals or entities, there is no dollar limit, and no exclusion if a road is being constructed or repaired. Moreover, with a private owner, this section is not exclusive, so a private owner could be liable if no notice was given or when other factors contributed to the accident (Marsden v. Eastern Gas & Fuel Associates, 7 Mass. App. Ct. 27, 1979).
No action shall be maintained under this section by a person the combined weight of whose carriage or vehicle and load exceeds six tons.
The weight limit is six tons or 12,000 pounds, which excludes semi-trailers and heavy trucks.