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Articles Posted in Car Accidents

When Tom Brady’s car and Ludgero Rodrigues’ minivan crashed in Back Bay, Boston, yesterday, what most people wanted to know first is whether the New England Patriots’ star quarterback was injured. The answer was no, and we all breathed a sigh of relief. The outlook for the season was still good.

Next, we all wanted to know what happened and who was at fault. Rodriguez ran a red light, we were told, and crashed into Brady. Well, maybe. According to the Boston Police report, Rodrigues says the light was green when he went into the intersection of Commonwealth Avenue and Gloucester Street, and Brady ran into him. The physical evidence shows clearly that Brady’s front end rammed the middle of the passenger side of the van. Brady says the light was green for him as he entered the intersection. A 74 year old woman who was walking her dogs says that as she was in the ambulance with Brady, he asked her if the minivan ran the red light, and she assured him it had. She reported that the walk light came on for her to cross Commonwealth Avenue just before the minivan came past. The police wrote Rodrigues a ticket for running the red light based on her evidence. Plus, the minivan’s driver was a 21 year old with a poor driving record, though later we found out that the bad record had been exaggerated.

As an afterthought, seemingly, we heard reports that the minivan driver’s 49 year old father, Rogerio Rodrigues, was in the back of the van and had to be cut out with the “jaws of life” and taken to the hospital. It turns out he has severe injuries — a broken back — and has undergone several operations with more to come. Local trial lawyers speculated on how much Tom Brady could collect from his insurance if Brady later found out he was injured. Nobody seems to be concerned about Rugerio Rodrigues’ rights.

A passenger in a crash can sue either or both of the drivers. It is rare that the passenger has any degree of contributory fault. Rather, it is almost always one or both of the drivers whose negligence caused the crash. So to Rogerio Rodrigues, the red light controversy would seem to be unimportant. But the question is, how much insurance does the minivan carry? If Brady was not at fault, Rogerio would have to rely on the minivan’s insurance to pay his entire claim. But if Brady was even 1% at fault, even if Ludgero was 99% at fault, Rogerio could collect the entire judgment against Brady. And that could be a sizeable amount.
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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.
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