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Notice Requirements for Road Defects

under-construction-1268302-mOn May 31 2005, Tom Filepp was riding his bicycle on Harvard Street in Brookline, Massachusetts when he had an unfortunate accident due to the condition of the pavement. Specifically, he was pedaling his bicycle and encountered a “rut” in the pavement that caused his bicycle, and him, to turn over. Mr. Filepp suffered serious and severe personal injuries as a result. He promptly provided notice to the City of Brookline of the injuries he sustained. Subsequently, it was discovered that the Boston Gas Company was the responsible party as the corporation created the defect in pavement that caused Mr. Filepp’s accident.

Mr. Filepp was forced to file suit against the Boston Gas Company for claims predicated on negligence. The Defendant corporation asked the court to dismiss the case arguing that there were no material facts in dispute that rise to a triable level, and as a result, the Defendant should be entitled to judgment as a matter of law. The Defendant argued that Mr. Filepp, the Plaintiff, failed to give notice to the Defendant within 30 days of his accident. Under Massachusetts General Laws c. 84, § 18, a person injured due to a defect on a public way must send notice within thirty days after the injury to the, “county, city, town or person by law obliged to keep said way in repair.” As a result, because the Plaintiff failed to notify the Boston Gas Company, the organization obliged by law to maintain the parcel of land, the court dismissed Plaintiff’s case. Plaintiff appealed. 

The Plaintiff, on appeal, argued that the Defendant was not ‘obliged by law’ to maintain the road, and therefore was outside the statutory protection provided by the law. In other words, because the Defendant had stopped doing work on the area that the Plaintiff had fell, there should be no protection by law concerning the 30 day notice period. The Massachusetts Court of Appeals disagreed. In a decision issued on February 27, 2014, the Court upheld the lower court’s decision in regards to dismissing the case. The Court held that the Plaintiff’s claim against the Defendant is cognizable under c. 84, exclusively. The Plaintiff’s failure to notify the Defendant within 30 days of the incident, as required by G.L. c. 84, § 18, a prerequisite to a party bringing this cause of action, prevents the claim from being heard.

Courts in Massachusetts have previously had the opportunity to discuss the notice requirements of § 18, and specifically, its importance:

“The purpose of this section, requiring that a person injured by reason of a defect in a way shall give county, city, town, or person obliged to keep such way in repair notice of time, place and cause of injury is to enable municipality or person obliged to keep way in repair to investigate occurrence and determine liability.” Murphy v. Boston & M.R.R., 332 Mass. 123 (1954).

While it may seem rigid, the Court will not entertain claims where the Plaintiff has failed to make notice to the proper Defendants within 30 days. It is very important that the Plaintiff comply with this in order to pursue his or her claim against the proper party. While it may require some investigatory work on the part of the Plaintiff- this is a necessity. Additionally, notice to the improper party will not suffice, as indicated above in Mr. Filepp’s situation. His original notice to the City did not transfer over to the Boston Gas Company when he discovered its responsibility in the matter.

To read more about the case discussed above, please see Filepp v. Boston Gas Company.  For more information, please refer to the section on our website on slip and fall accidents. Notice requirements and Statutes of Limitations are very important matters that are best discussed with an attorney.  To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.

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