On July 15, 2010, the Massachusetts Appeals Court held in DiNitto v. Town of Pepperell that two motorcyclists who were injured when they failed to stop at a hidden stop sign could not recover from the town because they had failed to give the town the 30 day notice required by the Massachusetts highway defect statute and tried instead to sue the town under the Massachusetts Tort Claims Act. The court held that the highway defect statute was the exclusive remedy for the injured motorcyclists, and that it applied to the town’s negligent failure to keep “trees, brush and overhanging vegetation” growing on adjoining town land from obscuring the sign.
The highway defect statute, over a century old, permits limited recovery against a negligent county, city, or town (and under G.L. c. 81 §18, the state) for bodily injury or property damage caused by a defect in a road. But it also requires that the claimant give the government notice of the time, place and cause of the injury or damage within 30 days.
The more recent Tort Claims Act generally permits claims against the government for injury or damage caused by the negligent acts of government employees. It has a far more realistic two year notice requirement. But it specifically left the highway defect statute intact as the exclusive remedy for those injured by a “defect or a want of repair…in or upon a way.”
The DiNittos argued that the untrimmed vegetation from adjacent town property was not a defect in the road itself. The court relied on some old cases defining the reach of the highway defect statute broadly to permit recovery which was otherwise unavailable at that time. It cited an 1872 case applying the statute to “obstructions overhanging the way,” and a 1920 case involving the limb of a tree growing next to the road which hung too low over the road. Cases enlarging the injured person’s right of recovery were now used to preclude it.
Whenever there is an injury or property is damaged on or near a road or sidewalk, it is critical to get to an experienced lawyer immediately. Defects in the design or maintenance of the property may have played a role, and the very harsh 30 day notice requirement may apply. Waiting for too long or going to the wrong lawyer may cause you to lose your chance of recovery for your injuries or damage.
The Boston motorcycle and car accident lawyers at KJC Law Firm, Kathy Jo Cook and Timothy Wilton, have more than 50 years of experience litigating serious cases. KJC Law Firm handles cases for clients all across the state of Massachusetts.