MEMORANDUM OF DECISION AND ORDER OF
J. CURRAN, Associate Justice.
Mazzini alleges that on August 18, 2012, he sustained
personal injuries while riding his bicycle across a defective
piece of what appear to be train tracks on Bay Road in the
town of Hamilton. His counsel sent a letter of presentment
under October 1, 2012, to the defendant MBTA. The case is
before me on the defendant MBTA's motion to dismiss
because it alleges that the defective tracks which caused Mr.
Mazzini's accident were part of the roadway, and that
G.L.c. 84, section 15 requires notice to the entity in charge
of repairing the roadway within thirty days of the incident.
Mr. Mazzini vigorously challenges this allegation,
maintaining the position that the tracks at issue were not
part of the roadway, but instead that the responsible
governmental agency had an obligation to maintain the tracks
in a non-negligent fashion.
Mazzini's complaint claims that the MBTA had an
obligation to ensure that the tracks were reasonably flush
with the roadway so as not to create an unreasonable danger,
to repair defects in the tracks, to ensure the safety of its
tracks and maintain its tracks in a safe condition, all
certainly reasonable and laudable governmental obligations
and goals. Mr. Mazzini resents the defendant MBTA's
characterization of the accident in his attempt to prove his
case that this accident occurred in a public way, when it
selectively repeated portions of Mr. Mazzini's complaint
that the accident occurred " . . . in a public way,
owned, operated, or controlled by the MBTA." See
complaint, paragraphs 4 and 6. This, Mr. Mazzini claims, is
hardly an admission that G.L.c. 84, section 18 applies, but
rather, simply a notice pleading effort to tell the defendant
MBTA where the accident occurred.
start with the statute that the defendant MBTA has invoked in
its motion. G.L.c. 84, section 18 states that when " . .
. a person sustains bodily injury by reason of a defect or
want of repair . . . in or upon a [public] way . . . and such
injury . . . may have been prevented . . . by reasonable care
and diligence on the part of the . . . person by law obliged
to repair the same . . . he may . . . recover damages
therefore from such . . . person." G.L.c. 84, section 18
requires that " [a] person so injured shall, within
thirty days thereafter, give to the . . . person by law
obliged to keep said way in repair, notice of the name and
place of residence injured, and the time, place and cause of
said injury . . ." (Emphasis added.)
is no question that notice was not timely provided to the
defendant MBTA. The question remains, however, as to whether
the defect at issue is governed by the statute upon which the
MBTA relies; if it is, the plaintiff loses.
84 is the " sole remedy" for injuries which caused
by a defect or want of repair upon a public way. Ram v.
Town of Charlton, 409 Mass. 481, 485, 567 N.E.2d 208
(1991). And " . . . anything concerning the
state or condition of a public way or inconvenient for
ordinary travel" constitutes a " defect" or
" want of repair." (Emphasis added.) Wolf v.
Boston & Sewer Commission, 408 Mass. 490, 492, 561
N.E.2d 867 (1990) citing Gallant v. City of
Worcester, 383 Mass. 707, 711, 421 N.E.2d 1196 (1981).
The MBTA tracks here are part and parcel of the public way;
they are built into the roadway; they lay almost flush with
the surface of the roadway; they are integral to it; and the
roadway encases them. Indeed, a plaintiff's fall near
trolley tracks has been found to constitute part of a public
way. See Grealish v. MBTA, 1988
Mass.App.Div. 158, *2.
84 is " broad in scope." Ram at 486. In
the past, " defects" have been construed to include
" not only traditional forms of defect, such as
potholes, trenches and the like, but also conceptual problems
with the road's design, obstructions that may overhang or
fall into the way." Aguila v. Massachusetts Turnpike
Authority, 22 Mass.L.Rptr. 578 (2007) Thus, over the
years, such defects as a chain left in on the public way (
Huff v. City of Holyoke, 386 Mass. 582, 585, 436
N.E.2d 952 (1982)), a metal pole left unrepaired (
MacDonald-Lefebvre v. Town of North Attleboro, 7
Mass.L.Rptr. 442 at *2, (1997), a defective patch placed over
the asphalt on a sidewalk ( Wolf v. Boston Water & Sewer
Commission, 408 Mass. 490, 492, 561 N.E.2d 867 (1990),
inadequate grading, lighting road surface, signage and
markings ( Ram at 486)" objects strung across a
public way" ( Lefebvre ), " tripping
hazards" in a public road ( Baird v. MBTA, 32
Mass.App.Ct. 495, 497, 591 N.E.2d 210 (1992)), Green Line
trolley tracks ( Rabin v. MBTA, " objects
resting upon the [roadway] surface" ( Whittaker v.
Town of Brookline, 318 Mass. 19, 25, 60 N.E.2d 85
(1945), and indeed, a rut in the pavement which caused a
bicyclist to fall and sustain injuries ( Filepp v. Boston
Gas Company, 85 Mass.App.Ct. 901, 4 N.E.3d 1282
(2012)) have all been determined to be "
defects" that trigger a G.L.c. 84, section 18 thirty-day
Mazzini seeks to elude the statute's applicability by
claiming that he is alleging negligence, but appellate courts
have found that argument wanting. See Trioli v.
Sudbury, 15 Mass.App.Ct. 394, 397, 446 N.E.2d 92 (1983)
and Sullivan v. City of Holyoke, 87 Mass.App.Ct.
1110 n.2, 26 N.E.3d 753 (2015).
this legal result is harsh and unfortunate, it is dictated by
the legislative enactment of this statute and the decisional
authority that has construed it. The law compels the
dismissal of Mr. Mazzini's complaint.
these reasons, the defendant MBTA's motion to ...