Camille F. Sarrouf, Jr. (Alexander 0. Rovzar also present)
for the plaintiffs.
Lynette Paczkowski for Boston Gas Company.
Anjomi, Assistant Corporation Counsel, for city of Boston.
walking on a public way in Boston, plaintiff Daneil Sarrouf
stepped into an uneven depression in the road and suffered
serious injury to her left foot. Sarrouf notified the city of
Boston (city) of her claim within thirty days, as required by
G. L. c. 84, §§ 15 & 18, the defective way
statute. Approximately eleven weeks later, the city sent a
letter to Sarrouf denying liability and implicating the
Boston Gas Company (Boston Gas) as the responsible party. The
following day Sarrouf sent notice to Boston Gas, and she
later filed a complaint in the Superior Court against both
the city and Boston Gas. Boston Gas moved to dismiss for
untimely presentment of notice, the motion was denied, and
the case later proceeded to trial. At the close of the
plaintiffs' case, Boston Gas moved for a directed verdict
based on late notice. Finding it undisputed that Sarrouf did
not notify Boston Gas of her injuries within thirty days, and
that the plaintiffs' evidence showed that Boston
Gas's identity as a responsible party was readily
ascertainable, the trial judge allowed the motion. We affirm,
but on the ground that the statute does not excuse late
notice in these circumstances. See Foley v. Lowell Sun
Publ. Co., 404 Mass. 9, 10-11 (1989).
defective way statute provides the exclusive remedy for
personal injuries arising from defects in public ways,
whether caused by the Commonwealth, its subdivisions, or any
"person by law obliged to repair" the way. G. L. c.
84, § 15. See Ram v. Charlton, 409 Mass. 481,
485, cert, denied, 502 U.S. 822 (1991); Filepp v. Boston
Gas Co., 85 Mass.App.Ct. 901, 901-902 (2014). The
injured party bears the burden of notifying the responsible
party within thirty days of the injury. See G. L. c. 84,
§ 18; Filepp, supra at 902. The notice
period applies strictly, and timely notice is both a
"condition precedent" to bringing suit and "an
essential ingredient indispensable to the existence of the
cause of action." Paddock v. Brookline, 347
Mass. 230, 231-232 (1964).
appeal, the plaintiffs do not dispute that Sarrouf failed to
notify Boston Gas within thirty days. Rather, they argue that
she should be excused from the thirty-day notice requirement
because it was "virtually impossible" for her to
ascertain that Boston Gas was the responsible party. The
plaintiffs contend that an exception to the thirty-day notice
requirement arises as a matter of due process because it is
unfair to require her to give notice to an entity that she
cannot readily identify. The motion judge denied Boston
Gas's motion to dismiss for late notice on this very
ground. Based on the pleadings, the motion judge concluded
that the plaintiffs "engaged in a diligent, but
unsuccessful search of city records" and were unable to
identify Boston Gas as a potentially liable party within
thirty days of the injury. Noting that "[o]ur cases hold
that due process 'does not demand the impossible,
'" Matter of Jones, 379 Mass. 826, 836
(1980), quoting Young v. Tudor, 323 Mass. 508, 514
(1948), the motion judge excused the plaintiffs' failure
to give Boston Gas timely notice. However, at the close of
the plaintiffs' evidence, the trial judge allowed Boston
Gas's motion for a directed verdict, concluding that the
evidence demonstrated that Boston Gas's identity as a
responsible party was readily ascertainable.
appeal, as did the motion judge, the plaintiffs rely on a
line of cases concerning the notice that persons with
potential interests in property must be given before a judge
may dispose of that property in the settlement of a trust or
an estate. See Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 317-318 (1950); Matter of
Jones, supra at 835-836; Young,
supra. Specifically, these cases concern the
constitutional adequacy of notice by publication. They
generally hold that notice by publication is insufficient
when the person's name and whereabouts are known or
easily determined, but that "[d]ue process permits
notice by publication for '[t]hose beneficiaries . . .
whose interests or whereabouts could not with due diligence
be ascertained.'" Matter of Jones,
supra at 836, quoting Mullane,
supra at 317. These cases do not stand for the
proposition that the plaintiffs' due process rights are
infringed by requiring them to serve timely notice on
defendants who are not readily identifiable. The cases thus
are inapplicable in the context of the statutory notice
requirement. See Ram, 409 Mass. at 490 (thirty-day
notice requirement does not deprive plaintiff of property
without due process of law).
decline to read into the statute an exception to timely
notice when the responsible party is not reasonably
ascertainable. The statute excuses late notice only if
"by reason of physical or mental incapacity it is
impossible for the person injured to give the notice within
the time required." G. L. c. 84, § 19. The
inclusion of one exception implies that the Legislature
intentionally refrained from creating additional exceptions.
See Harborview Residents' Comm., Inc. v.
Quincy Hous. Auth., 368 Mass. 425, 432 (1975) ("a
statutory expression of one thing is an implied exclusion of
other things omitted from the statute").
the evidence at trial undisputedly established that Sarrouf
did not provide timely notice to Boston Gas, she failed to
prove an essential element of her cause of action. See
Paddock, 347 Mass. at 231-232; DiNitto v.
Pepperell, 77 Mass.App.Ct. 247, 252 (2010). A directed
verdict for Boston Gas was required. We recognize that our
strict interpretation of the statute may lead to harsh
results, but "if there are practical reasons why the
time should be made longer the appropriate body to consider
and weigh them is the Legislature." Filepp, 85
Mass.App.Ct. at 902.
 Thomas K. Sarrouf.
 Boston Gas Company, doing business as
National Grid ...