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Massachusetts Road Defect Claims and Public Utilities

Massachusetts General Law – Chapter 84, sections 15 and 18 provide the exclusive remedy for personal injuries or property damage from defects in public ways. For a period, it appeared that private entities, such as public utilities, could defend against certain claims based on these sections, but this is no longer the case.

In Meyer v. Veolia Energy North America, 482 Mass. 208 (2019), the Supreme Judicial Court clarified the scope of this statutory scheme and eliminated any suggestion that the road defect and notice statutes applied to non-governmental entities. Meyer arose as a result of a bicycle accident in which the rider struck a misaligned utility cover in the road surface and sustained injuries. The plaintiff provided notice to the City of Boston within 30 days, but not Veolia Energy North America (“Veolia”). Boston denied responsibility, citing the fact that Veolia was responsible for the condition. The plaintiff subsequently sued Veolia for negligence and the Superior Court granted Veolia summary judgment, dismissing the lawsuit. The Superior Court concluded that § 15 provided the exclusive remedy for the plaintiff’s claim, that notice was required under § 18, and that the plaintiff failed to provide the statutory notice. The SJC reversed that decision and explicitly overruled a line of cases in which non-governmental entities successfully used §§ 15 and 18 to defend against negligence claims.

The earliest version of the road defect statute in Massachusetts dates to 1786. The current statute evolved from there and contains much of the same language. Massachusetts courts have a similarly long history of construing and applying the road defect statute. Meyer, for example, relies heavily on an 1883 decision to clarify the scope and application of the current road defect statute.

Prior judicial interpretations of the road defect statute suggested that private parties, such as utility companies, were entitled to notice under § 18. Specifically, in Ram v. Charlton, 409 Mass. 481, 490 (1991), the SJC 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.” As a result, recent court decisions allowed public utility companies’ dispositive motions where the plaintiff missed the 30-day notice. See e.g., Sarrouf v. City of Boston, 94 Mass. App. Ct. 901 (2019); Wilbert v. Verizon New England, Inc. et al., 2018 WL 6984807 (Mass. Super., Dec. 17, 20018) (Ricciuti, J.).

In Meyer, the SJC identified the source of and resolved any confusion over the scope of the road defect and notice statutes, stating that they are “meant to apply to the public duty to maintain the roadway and [do] not apply to a provide entity responsible for a particular defect in the road … The statutes are directed at governmental liability or roadways and the defects thereon.”

Additionally, the SJC explicitly overruled Sarrouf and two other cases “in which the Appeals 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.” As a result, claims that a private company created a defect on a roadway will be resolved by general negligence principles and/or other legal concepts that apply to the circumstances of a particular claim.