Heard: January 10, 2019.
action commenced in the Superior Court Department on February
case was heard by Peter M. Lauriat, J., on a motion for
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
J. Powers (Andrew M. Fischer also present) for the plaintiff.
Christopher R. Howe for the defendant.
Pagliaro & Martin J. Newhouse, for New England Legal
Foundation, amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
riding his bicycle on Sudbury Street in Boston, the
plaintiff, Richard Meyer, struck a utility cover that was
misaligned with the road surface and injured himself. Within
thirty days of the incident he submitted notice of claim to
the city of Boston (city) regarding his injury. Thirty-one
days after the incident, the city informed him that it would
not pay Meyer's claim because the defendant, Veolia
Energy North America (Veolia), was responsible for the defect
that caused Meyer's injuries. A few days later, Meyer
gave notice to Veolia and subsequently brought suit against
Veolia for negligence. A judge of the Superior Court granted
summary judgment to Veolia and dismissed Meyer's lawsuit.
He concluded that G. L. c. 84, § 15 (§ 15 or road
defect statute), provided the exclusive remedy for
Meyer's claim against Veolia. He further concluded that
Veolia was entitled to notice within thirty days from the
date of Meyer's injury under G. L. c. 84, § 18
(§ 18 or notice statute), but that Meyer had not
provided that notice.
conclude that the decision below was erroneous. The text of
§§ 15 and 18, the legal and legislative history
relevant to those statutes, the case law, and the practical
realities of providing notice within thirty days all confirm
that the road defect and notice statutes apply to
governmental and quasi governmental actors responsible for
the public duty of maintaining the public way, and not to a
private party such as Veolia that has created a particular
defect in the way. Sections 15 and 18 do not limit
Veolia's common-law liability under tort law.
Consequently, Veolia may be sued for its own negligence
without providing thirty days' notice. Accordingly, we
reverse the grant of summary judgment for
reviewing a motion for summary judgment, we view the evidence
in the record in the light most favorable to the nonmoving
party. See Graham v. Quincy Food Serv.
Employees Ass'n, 407 Mass. 601, 603 (1990).
1, 2013, Meyer rode his bicycle on Sudbury Street, a public
way in Boston. Meyer's bicycle struck a circular utility
cover one foot or less in diameter that was misaligned with
the road surface. Meyer's collision with the cover caused
him to crash to the ground and suffer injuries. The utility
cover bore the words "TRIGEN-BOSTON."
18, 2013, eighteen days after Meyer's injury, Meyer's
counsel sent a notice of claim by certified mail to multiple
city officials, including the mayor, the commissioner of
public works, the clerk, and corporation counsel. This claim
alleged that as Meyer turned on his bicycle from Cambridge
Street to Sudbury Street, he encountered a gap in the roadway
due to improper paving around a utility cover, which created
"a hole that caught the bicycle wheel." The claim
further alleged that the defect was the result of the
"negligent maintenance of the roadway owned, maintained
and controlled by the city of Boston."
24, 2013, a claims officer in the city's law department
sent a letter to Meyer's counsel requesting pictures of
the defect's exact location and surrounding area. The
following day, July 25, Meyer's counsel sent a photograph
and a renewed notice of claim by certified mail to the mayor,
the commissioner of public works, the clerk, corporation
counsel, and the executive director and two commissioners of
the city's water and sewer commission (commission).
31, 2013, Meyer's counsel spoke with the claims officer.
During that conversation, counsel inquired as to who was
responsible for the improperly maintained utility cover. The
claims officer did not inform Meyer's counsel that the
city planned to contend that responsibility belonged to
Veolia, a private company, rather than to the city. That same
day, however, the claims officer sent a letter to Meyer's
counsel denying the claim. The letter stated: "Our
investigation indicates that the City of Boston is not
responsible for your damages because the location of the
defect is under the jurisdiction of Veolia Energy Co."
counsel received this letter late in the day on August 1,
2013, thirty-one days after Meyer was injured. On August 6,
counsel sent a notice of claim to Veolia, informing Veolia
that Meyer had received injuries from "a defect in the
roadway caused by a utility cover . . . that had been
February 17, 2015, Meyer filed a complaint alleging
negligence by Veolia for a "defect in the roadway caused
by an improperly and negligently installed and/or maintained
utility cover or casting." Meyer did not, however, bring
suit against the city. Veolia admitted that it owned and was
responsible for maintaining the utility hole, utility cover,
and surrounding pavement within thirty inches. Veolia moved
for summary judgment on the ground that the exclusive remedy
for Meyer's claim was § 15, which permits recovery
for personal injury or property damage due to "a defect
or a want of repair . . . in or upon a way" from
"the county, city, town or person by law obliged to
repair the same." It argued that Meyer had failed to
give Veolia notice within thirty days, as required by §
18, and that such notice was a condition precedent to any
recovery. Meyer argued, by contrast, that a private
corporation such as Veolia was not a "person"
within the meaning of §§ 15 and 18, nor was Veolia
required to "keep ... in repair" the street where
his injury occurred such that notice would be required under
31, 2017, the judge allowed Veolia's motion and entered
judgment dismissing Meyer's action. The judge concluded
that § 15 "is the exclusive remedy for personal
injuries caused by a defect in a public way" and that
§ 18 "mandates notice to both private and
government entities of any defect that the party is
obliged to repair." The judge held that the city's
municipal code placed responsibility for repairing the
allegedly defective utility cover on Veolia. He accordingly
concluded that Veolia was obliged by law to repair the
alleged defect for purposes of § 15 and thus that Veolia
was also the party entitled to receive written notice within
thirty days of the date of injury pursuant to § 18.
Because Meyer had notified Veolia one week after this
deadline, the judge held that Meyer was barred from
proceeding under § 15 and allowed Veolia's motion
for summary judgment.
appealed, and we transferred the case to this court on our
appellate court reviewing a grant of summary judgment
examines its allowance de novo and from the same record as
the motion judge. See Matthewsv.Ocean
Spray Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997).
The standard of review is whether, viewing the evidence in
the light most favorable to the nonmoving party, the moving
party is entitled to ...