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15-P-253 Appeals Court
DONALD R. LANDRY vs. MASSACHUSETTS PORT AUTHORITY & another.1
No. 15-P-253.
Hampden. November 12, 2015. - April 12, 2016.
Present: Cohen, Grainger, & Wolohojian, JJ.
Massachusetts Port Authority. Municipal Corporations, Liability
for tort. Practice, Civil, Summary judgment, Interlocutory
appeal, Execution. Negligence, Use of way. Way, Public:
defect. Notice, Action alleging injury caused by defect in
public way.
Civil action commenced in the Superior Court Department on
June 25, 2012.
The case was heard by C. Jeffrey Kinder, J., on motions for
summary judgment.
Tara E. Lynch for the defendants.
Enrico M. De Maio for the plaintiff.
COHEN, J. The plaintiff, Donald R. Landry, brought this
negligence action pursuant to the Massachusetts Tort Claims Act,
G. L. c. 258, seeking damages from the defendants, the
1
City of Worcester.
2
Massachusetts Port Authority (Massport) and the city of
Worcester (city), for injuries he sustained at the Worcester
Regional Airport (airport) when a motorized sliding gate pinned
him to a metal bar protruding from the gate post. The
defendants jointly moved for summary judgment, claiming that
Landry was injured by reason of a defect in a way and, hence,
his exclusive remedy was an action under G. L. c. 84, §§ 15, 18,
and 19.2 See Botello v. Massachusetts Port Authy., 47 Mass. App.
Ct. 788, 789 & n.3 (1999). Because it was undisputed that
Landry had not given notice within thirty days of his injury, as
required by c. 84, § 18,3 the defendants argued that they were
entitled to judgment as matter of law. The city also argued
that it was entitled to summary judgment for the independent
reason that it was not responsible for "the way at issue."
A judge of the Superior Court denied summary judgment,
concluding that the defendants had failed to establish that the
2
Massport is brought within the ambit of these sections by
St. 1956, c. 465, § 23, eighth par., which states in relevant
part: "[Massport] shall be liable to any persons sustaining
bodily injury or damage in or on its property by reason of a
defect or want of repair of ways . . . to the same extent as
though said ways were a way within the meaning of sections
fifteen, eighteen, and nineteen of chapter eighty-four of the
General Laws."
3
Landry alleges in his complaint, and it is not disputed,
that he made timely presentment of his claims under c. 258.
3
site of the accident was a "way,"4 and that there remained a
genuine issue of material fact as to the city's responsibility
for the maintenance and operation of the gate. The defendants
then jointly filed a notice of appeal from this interlocutory
order, claiming entitlement to immediate review under the
doctrine of present execution. Although we conclude that the
appeal is not properly before us and must be dismissed, we
exercise our discretion to consider the defendants' substantive
arguments, which we find to be without merit.
Background. Viewing the evidence in the summary judgment
record in the light most favorable to the nonmoving party, see
Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991),
the relevant facts may be summarized as follows. On June 26,
2009, Landry, an employee of a commercial laundry, drove to the
airport to make a delivery of clean uniforms to the airport
maintenance department. At that time, under the terms of an
agreement between Massport and the city, Massport operated the
airport but all maintenance personnel were employed by the city.
Landry had been making such deliveries for six years. In
the beginning, he would drive up to the airport's main gate,
i.e., gate ten, where security guards would inspect his vehicle,
4
Previously, Massport had raised the same issue by motion
to dismiss. At that stage, based upon the complaint alone, an
earlier judge also ruled that it had not been shown that the
site of the accident was a way.
4
escort him to the maintenance garage, and then escort him out.
Because this was a time-consuming process, approximately one
year before his injury, Landry was given permission to park his
vehicle outside gate eighteen,5 which was right outside the
maintenance garage. He then would be admitted through that gate
and proceed on foot.
The gate was twenty to twenty-five feet long, and ten feet
high. It was motorized and moved on wheels from left to right.
When the gate was not padlocked, it could be operated by remote
control. Typically, when Landry arrived, a worker would come
out of the maintenance garage, go over to one of the maintenance
trucks parked outside, reach up to a remote control on the
visor, and press the button to open the gate.
On the day of the accident, Landry telephoned ahead and
received confirmation that he should go to gate eighteen. When
he arrived, the gate was closed but not padlocked. A
maintenance employee spotted him and used the remote control in
a maintenance truck to open the gate. Instead of opening all
the way, however, the gate moved only about three to four feet.
After waiting approximately thirty to forty seconds with no
further movement of the gate or instructions from the employee
using the remote control, Landry began to walk sideways through
the opening. This was a tight space, not only because Landry
5
Occasionally he was directed to park at other gates.
5
was carrying a load of uniforms slung over his shoulder, but
also because there was a twelve-inch piece of angle iron
protruding from the gate post in order to guide the gate into
place as it closed.
With Landry's back to the gate, and his chest facing the
angle iron, the gate suddenly began to move, pushing him into
the angle iron. As a result, he sustained a fractured sternum
and was unable to work for two months. When he returned, he
spoke with a few of the maintenance employees, who told him that
the remote control button had gotten stuck. They also told him
that this had been an ongoing issue and that, prior to his
accident, the gate had been closing on their pickup trucks as
they went through.
Discussion. 1. Doctrine of present execution. The
doctrine of present execution is a narrow exception to the
principle that there is no right of appeal from an interlocutory
order unless one is authorized by statute or rule. Marcus v.
Newton, 462 Mass. 148, 151-152 (2012). The exception applies
when two criteria are met: the interlocutory ruling must
interfere with rights in a manner that cannot be remedied on
appeal from the final judgment, and the matter to be decided on
appeal must be collateral to the merits of the controversy. Id.
at 152.
6
In this case, even assuming that the first criterion is met
because the defendants' immunity from suit is implicated,6 we are
unpersuaded that the second criterion has been satisfied. A
collateral issue is "one that will not have to be considered at
trial." Shapiro v. Worcester, 464 Mass. 261, 264 n.2 (2013)
(citation omitted). Here, however, in order to decide whether
Landry's claim is subject to c. 84, it must be determined where
and how his injury occurred. Such factual issues are not
collateral; they are essentially congruent with issues to be
tried.
The case of Rodriguez v. Somerville, 472 Mass. 1008, 1009-
1010 (2015), relied upon by the defendants, is distinguishable.
In that case, the issue presented for interlocutory review was
whether the plaintiff's presentment letter pursuant to G. L.
c. 258, § 4, was defective. This issue was discrete and
unrelated to the underlying facts pertaining to the plaintiff's
injury. Similarly, in Shapiro v. Worcester, supra at 265, the
issue of the retroactivity of the presentment requirement was
separate from those raised by the plaintiff's underlying
nuisance claim and, therefore, appealable under the doctrine of
present execution.
6
Insofar as it applies to a governmental entity, c. 84,
§ 15, operates as a limited waiver of sovereign immunity in
cases where a person has been injured by a defect on a publicly
maintained way. To take advantage of the waiver, however, the
injured person must comply with the notice requirements of § 18.
7
We are compelled to conclude that the defendants' appeal is
not properly before us.7
2. Denial of summary judgment. Nevertheless, we comment
on the merits of the defendants' arguments, as the issues have
been fully briefed, questions concerning the parameters of
liability under c. 84 are recurrent, and our discussion may be
instructive in future cases. Cf. Marcus v. Newton, 462 Mass. at
153. We review the denial of the defendants' motion for summary
judgment de novo. Anderson v. Gloucester, 75 Mass. App. Ct.
429, 432 (2009).
In order to be subject to c. 84, §§ 15, 18, and 19, the
injury in question must have come about "by reason of a defect
. . . in or upon a way." G. L. c. 84, § 15. Here, the
defendants have not shown that this statutory test is met.
First, the facts of record do not establish as matter of law
that the site of Landry's injury was a way. Notwithstanding
Landry's testimony that he traversed gate eighteen on foot with
some regularity, it is not conclusively established that the
place where he was trapped was a roadway, sidewalk, or travel
7
We note that invoking the doctrine of present execution in
a case where there is a fact-based dispute as to the application
of c. 84 and its notice provisions appears to be unprecedented.
In Polonsky v. Massachusetts Port Authy., 60 Mass. App. Ct. 922
(2004), we reviewed the denial of Massport's motion for summary
judgment claiming that an injury sustained in one of its parking
lots was barred by c. 84. However, that case came to us by way
of a report by the trial court judge pursuant to Mass.R.Civ.P.
64, as amended, 423 Mass. 1410 (1996).
8
lane. The defendants submitted no affidavit or testimony
concerning the accident site from anyone associated with the
airport. There are, moreover, photographs in the record that
raise a question whether gate eighteen simply marked the
beginning of a restricted area used by the maintenance
department for parking and storing their vehicles and equipment.
See Polonsky v. Massachusetts Port Authy., 60 Mass. App. Ct.
922, 923 (2004) (parking area at airport was not a way).
In any event, even if the accident occurred on a way, in
order for c. 84 to apply, Landry's injury had to be sustained
"by reason of" a "defect in or upon the way." G. L. c. 84,
§ 15. In this respect, "it is not the location of the injury,
but rather the plaintiff's theory of liability, that renders the
[application of c. 84 and its notice requirement] at best
unclear." Peters v. Haymarket Leasing, Inc., 64 Mass. App. Ct.
767, 777 (2005).
Landry has a factually supported theory of liability that
his injury resulted not from any defect in the area where he was
injured, but from human agency -- the negligent operation or
maintenance of the remote control by a person or persons
employed by or under the supervision of the city, Massport, or
both, which caused the motorized sliding fence to move
unexpectedly while Landry was walking through the gate. On that
9
theory of the case, neither defendant was entitled to summary
judgment.
Appeal dismissed.