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Meyer v. Veolia Energy North America

Supreme Judicial Court of Massachusetts, Suffolk

May 8, 2019


          Heard: January 10, 2019.

         Civil action commenced in the Superior Court Department on February 17, 2015.

         The case was heard by Peter M. Lauriat, J., on a motion for summary judgment.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Kevin J. Powers (Andrew M. Fischer also present) for the plaintiff.

          Christopher R. Howe for the defendant.

          John 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.

          KAFKER, J.

         While 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.

         We 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 Veolia.[1]

         1. Facts.

         In 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).

         On July 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."[2]

         On July 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."

         On July 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).

         On July 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."

         Meyer's 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 improperly maintained."

         On 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 § 18.

         On May 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.

         Meyer appealed, and we transferred the case to this court on our own motion.

         2. Discussion.

         An 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 ...

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