Meyer v. Veolia Energy North America

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SJC-12606

RICHARD MEYER vs. VEOLIA ENERGY NORTH AMERICA.

Suffolk. January 10, 2019. - May 8, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.

Way, Public: defect. Municipal Corporations, Notice to
municipality. Notice, Action alleging injury caused by
defect in public way. Statute, Construction.

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.

KAFKER, J. While riding his bicycle on Sudbury Street in

Boston, the plaintiff, Richard Meyer, struck a utility cover
 2

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
 3

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

1 We acknowledge the amicus brief submitted in support of
Veolia by the New England Legal Foundation.

2 Veolia Energy North America (Veolia) represented that it
purchased Trigen in 2007 and is its parent company.
 4

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."
 5

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
 6

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 Matthews v. Ocean Spray

Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997). The standard

of review is whether, viewing the evidence in the light most
 7

favorable to the nonmoving party, the moving party is entitled

to judgment as a matter of law. See Augat, Inc. v. Liberty Mut.

Ins. Co., 410 Mass. 117, 120 (1991).

a. Construction of the road defect and notice statutes.

"[Q]uestions of statutory construction are questions of law, to

be reviewed de novo." See Bridgewater State Univ. Found. v.

Assessors of Bridgewater, 463 Mass. 154, 156 (2012). We

interpret a statute according to the intent of the Legislature,

which we ascertain from all the statute's words, "construed by

the ordinary and approved usage of the language" and "considered

in connection with the cause of its enactment, the mischief or

imperfection to be remedied and the main object to be

accomplished." Harvard Crimson, Inc. v. President & Fellows of

Harvard College, 445 Mass. 745, 749 (2006). "Ordinarily, where

the language of a statute is plain and unambiguous, it is

conclusive as to legislative intent. That said, we will not

adopt a literal construction of a statute if the consequences of

doing so are absurd or unreasonable, such that it could not be

what the Legislature intended" (quotation and citations

omitted). Cianci v. MacGrath, 481 Mass. 174, 178 (2019). Our

principal objective is to ascertain and effectuate the intent of

the Legislature in a way that is consonant with "common sense

and sound reason" (citation omitted). Commonwealth v. Curran,

478 Mass. 630, 633-634 (2018).
 8

Both § 15, the road defect statute, and § 18, the notice

statute, are part of G. L. c. 84, entitled "Repair of Ways and

Bridges."3 Section 1 announces the purpose of the chapter, using

language that reflects its origins in the preindustrial era.

The first sentence of § 1 states: "Highways and town ways,

including railroad crossings at grade with such highways and

town ways, shall be kept in repair at the expense of the town in

which they are situated, so that they may be reasonably safe and

convenient for travelers, with their horses, teams, vehicles and

carriages at all seasons."4

The road defect statute imposes liability for personal

injury or property damage by reason of a defect or want of

repair in or upon a way.5 In relevant part, § 15 states:

3 The Tort Claims Act, G. L. c. 258, preserves the status
and force of G. L. c. 84, thereby providing limited governmental
liability for defects in ways. See Gallant v. Worcester, 383
Mass. 707, 711 (1981).

4 The rest of G. L. c. 84, § 1, provides for cities and
towns to submit requests for repair and reimbursement for the
cost of repairs to the Commonwealth. Neither reimbursement from
the State nor the relative degree of liability of a city versus
the State or Federal government is relevant to the instant case.

5 "Our decisions have construed a 'defect,' for purposes of
G. L. c. 84, [§ 15,] to be anything in the state or condition of
the way that renders it unsafe or inconvenient for ordinary
travel." Gallant, 383 Mass. at 711. Objects on the road
surface creating obstructions to travel are defects. Huff v.
Holyoke, 386 Mass. 582, 585 (1982). In particular, an
improperly positioned maintenance hole cover may constitute a
defect. See Valade v. Consolidated Bldrs., Inc., 3 Mass. App.
Ct. 519, 520 (1975).
 9

"If a person sustains bodily injury or damage in his
property by reason of a defect or a want of repair or a
want of a sufficient railing in or upon a way, and such
injury or damage might have been prevented, or such defect
or want of repair or want of railing might have been
remedied by reasonable care and diligence on the part of
the county, city, town or person by law obliged to repair
the same, he may, if such county, city, town or person had
or, by the exercise of proper care and diligence, might
have had reasonable notice of the defect or want of repair
or want of a sufficient railing, recover damages therefor
from such county, city, town or person; but he shall not
recover from a county, city, town or local water and sewer
commission more than one fifth of one per cent of its state
valuation last preceding the commencement of the action nor
more than [$5,000]; nor shall a county, city or town be
liable for an injury or damage sustained upon a way laid
out and established in the manner prescribed by statute
until after an entry has been made for the purpose of
constructing the way, or during the construction and
repairing thereof, provided that the way shall have been
closed, or other sufficient means taken to caution the
public against entering thereon."

The notice statute requires a person injured by a road

defect within the meaning of § 15 to give notice as a condition

precedent to the bringing of a legal action pursuant to that

section. In full, § 18 states:

"A person so injured shall, within thirty days thereafter,
give to the county, city, town or person by law obliged to
keep said way in repair, notice of the name and place of
residence of the person injured, and the time, place and
cause of said injury or damage; and if the said county,
city, town or person does not pay the amount thereof, he
may recover the same in an action of tort if brought within
three years after the date of such injury or damage. Such
notice shall not be invalid or insufficient solely by
reason of any inaccuracy in stating the name or place of
residence of the person injured, or the time, place or
cause of the injury, if it is shown that there was no
intention to mislead and that the party entitled to notice
was not in fact misled thereby. The words 'place of
residence of the person injured,' as used in this and the
 10

two following sections, shall include the street and
number, if any, of his residence as well as the name of the
city or town thereof. Failure to give such notice for such
injury or damage sustained by reason of snow or ice shall
not be a defense under this section unless the defendant
proves that he was prejudiced thereby."

As mentioned, the language of a statute is conclusive as to

legislative intent where it is unambiguous. Cianci, 481 Mass.

at 178. Here, however, where governmental and nongovernmental

parties are involved, and the party responsible for the

particular defect and the party responsible for the roadway

differ, application of the road defect statute is not perfectly

clear. In particular, where a private party is responsible for

the particular defect but not the roadway, it is unclear whether

such a party is covered by the statute.

We conclude that the road defect statute, like the notice

statute, is meant to apply to the public duty to maintain the

roadway and does not apply to a private entity responsible for a

particular defect in the road. The Legislature did not intend

to separate responsibility for the roadway from responsibility

for the defect and provide liability to one and notice to the

other. The statutes are directed at governmental liability for

roadways and the defects thereon. Furthermore, where the

Legislature included the word "persons," it did so for a very

limited historical purpose: to include private parties once

responsible for entire roadways. As will be explained infra,
 11

this court, in an opinion authored by Justice Oliver Wendell

Holmes, Jr., clarified this confusing point in Fisher v.

Cushing, 134 Mass. 374 (1883). In sum, the road defect and

notice statutes provide for liability and notice to governmental

and quasi governmental entities responsible for the roadways.

Private parties are not covered by these statutes when they

cause particular defects in public roadways; rather, they are

subject to suits in tort. This becomes evident with close

examination of the statutory text, the legislative history of

the statutes, and case law, as well as consideration of the

practicalities of notice within thirty days.

We begin with the statutory language. Notably, both the

liability and notice provisions refer to "the county, city, town

or person by law obliged," but the words following that phrase

differ. Section 15, the road defect statute, allows for the

recovery of damages from the entity "by law obliged to repair

the same." Section 18, the notice statute, requires notice to

the entity "by law obliged to keep said way in repair." The

antecedent of "the same" in § 15 could be "a way" or "such

defect." Under the former interpretation, the liability imposed

by § 15 and the notice required by § 18 concern the same entity;

under the latter interpretation, potentially separate entities.

Our default assumption, however, is that the Legislature intends

words to have the same meaning when used in closely proximate
 12

sections of a particular chapter. See Insurance Rating Bd. v.

Commissioner of Ins., 356 Mass. 184, 188–189 (1969) ("Where the

Legislature uses the same words in several sections which

concern the same subject matter, the words must be presumed to

have been used with the same meaning in each section" [quotation

and citation omitted]). The word "repair" elsewhere in G. L.

c. 84 also refers to performing repairs on a particular

structure that a town is required to keep in repair. See G. L.

c. 84, § 22 ("If a town neglects to repair any way which it is

obliged to keep in repair . . ."). "Repair" also refers to

repairing "ways and bridges" in the title of c. 84. See

American Family Life Assur. Co. v. Commissioner of Ins., 388

Mass. 468, 474, cert. denied, 464 U.S. 850 (1983) ("It is well

established that, although the title of an act cannot control

the plain provisions of the act, it may aid construction of

ambiguous clauses").

The earliest version of the road defect statute, St. 1786,

c. 81, § 7, authorized persons injured by "any defect, or want

of necessary repair and amendment of any highway, causeway or

bridge" to "recover of the county, town, the person or persons,

who are by law obliged to keep the same highway, causeway, or

bridge in repair" (emphasis added). The truncation of this

phrase to "the same" first occurred in St. 1850, c. 5, § 1,

which stated that if a person is injured by "any defect or want
 13

of repair, or of sufficient railing in or upon any highway,

townway, causeway, or bridge, he may recover . . . of the

county, town, or persons who are, by law obliged to repair the

same" (emphasis added). The legislative history demonstrates

that the phrase "the same" refers to certain types of ways or

other structures to be kept in repair. It did not draw a

distinction between responsibility for the way and

responsibility for a particular defect in the way.

The structure and purpose of § 18, the notice statute, also

confirm this reading. See New England Power Generators Ass'n v.

Department of Envtl. Protection, 480 Mass. 398, 410 (2018) ("The

court does not determine the plain meaning of a statute in

isolation but rather in consideration of the surrounding text,

structure, and purpose . . ." [quotations and citation

omitted]). Section 18 would not make sense if the party whose

defect caused the injury was not the same as the one receiving

the notice: it also conditions the right to maintain an action

on the refusal of the "said county, city, town or person" that

received the notice to "pay the amount" of the plaintiff's

damages. It would be illogical to require a plaintiff to send a

demand letter to a nonliable party (i.e., the party responsible

for the way) as a condition precedent to bringing suit against a

wholly different liable party (i.e., the party responsible for

the defect). See Curran, 478 Mass. at 633-634 (statutory
 14

interpretation must conform to common sense). Additionally,

§ 18 states that notice shall not be invalid "solely by reason

of any inaccuracy in stating the . . . place or cause of the

injury, if it is shown that there was no intention to mislead

and that the party entitled to notice was not in fact misled

thereby." If there was an obligation to give notice to the

party who created the particular defect, as opposed to the party

responsible for the way, this good faith exception would make

little to no sense, because that good faith error would mean

that notice would be adequate even when it was given to the

incorrect party.

Finally, reading the different provisions of G. L. c. 84

together demonstrates that the obligation to keep a road in

repair in § 1 and the liability for defects in a road in § 15

are tightly connected and concern the same party. See Gregory

v. Inhabitants of Adams, 14 Gray 242, 246 (1860) ("These

provisions, although contained in different statutes, yet having

the same general object in view, should undoubtedly be construed

in reference to each other. The former prescribes the standard

of duty imposed upon towns; the latter fixes the responsibility

which will devolve upon them, if injury results from their

failure to conform to the requirements of the law"). The notice
 15

regarding the incident that created that liability likewise goes

to this same party.6

We emphasize that, in scenarios where multiple governmental

or quasi governmental parties may have repair duties with

respect to a particular way, assigning responsibility for the

way may be difficult and notice should be provided to each

party. Wolf v. Boston Water & Sewer Comm'n, 408 Mass. 490

(1990), exemplifies this issue. In that case, a plaintiff was

injured by the collapse of an asphalt patch placed by the

commission on a Boston street. Id. at 491. The commission was

a "political subdivision" of the Commonwealth. Farrell v.

Boston Water & Sewer Comm'n, 24 Mass. App. Ct. 583, 588 (1987).

6 This interconnection is particularly clear from the
statute that created the notice requirement, "An Act . . . in
relation to the repair of highways, and remedies for injuries
sustained thereon." St. 1877, c. 234. Section 1 imposed the
duty to repair ("Highways, town ways, streets, causeways and
bridges shall be kept in repair at the expense of the town, city
or place in which they are situated . . ."). Section 2 created
liability for failure to fulfill that repair duty ("If a person
receives or suffers bodily injury, or damage in his property,
through a defect or want of repair, or of sufficient railing in
or upon a highway, town way, causeway or bridge, which might
have been remedied, or which damage or injury might have been
prevented by reasonable care and diligence on the part of the
county, town, place or persons by law obliged to repair the
same, he may recover in the manner hereinafter provided, of the
said county, town, place or persons, the amount of damage
sustained thereby . . ." [emphasis added]). Section 3 imposed
the notice requirement on plaintiffs ("Any person injured in the
manner set forth in the preceding section shall within thirty
days thereafter give notice to the county, town, place or
persons by law obliged to keep said highway, town way, causeway
or bridge in repair . . ." [emphasis added]).
 16

Under its enabling act, it was granted "all . . . obligations

of the city" with respect to sewer and water systems, defined as

"all . . . lands, easements, rights in land . . . and any other

property, real or personal, incidental to and included in such"

systems. Wolf, supra at 493, quoting St. 1977, c. 436, §§ 2, 5.

It was also given the power "to enter onto any land within the

city" to conduct "examinations" in the course of maintaining and

repairing its systems, provided that the commission "restore

such lands to the same condition." Wolf, supra, quoting St.

1977, c. 436, § 6 (g). In other words, the commission had the

power to excavate entire streets and the corresponding duty to

"repair the roadway." Wolf, supra. It therefore had a public

duty to maintain the way and was entitled to notice under the

statute. By contrast, a private company that lacked these

powers would not have had the duty under § 15 with which we

concluded the commission was vested.7

7 In Hurlburt v. Great Barrington, 300 Mass. 524, 528
(1938), we stated that the "maintenance and the repair of
sidewalks are not matters which may well be entrusted to two
distinct municipal bodies." There, we concluded that a town was
relieved of road defect liability when the Legislature had given
a "fire district, a quasi corporation, all matters connected
with the construction, the maintenance and the repair of
sidewalks situated within the limits of the district." Id. at
529. This is in contrast to the facts in Wolf, where we
concluded that the powers of the Boston water and sewer
commission to excavate any streets within the city, provided
that it made repairs, made it a party "obliged by law to repair
the roadway," even though the city may also have remained
obliged to repair the street. Wolf v. Boston Water & Sewer
 17

b. The meaning of "person by law obliged to keep" the way

"in repair" as clarified by the legislative history and case

law. Our interpretation of the road defect and notice statutes

is clarified by the historical understanding of the meaning of

"person" in the statutes. Veolia argues that the plain language

of the statutes applies equally to private and governmental

entities. By contrast, Meyer claims that the legislative and

legal history of the statutes demonstrates that the Legislature

intended "persons" to apply only to governmental actors, not

private for-profit corporations such as Veolia. Based on our

review of this legal and legislative history, we conclude that

that the statutes refer to the county, city, town, or person

required to perform the public duty of maintaining the way and

not to a private corporation that causes a defect in the way,

even where the private entity has been authorized by a

governmental entity to perform a particular function causing a

defect in the way and the governmental entity seeks to transfer

its responsibility for the defect to the private entity. Such

private entities may be sued in tort, as has been the case

historically.

Comm'n, 408 Mass. 490, 493 (1990). See Ram v. Charlton, 409
Mass. 481, 486 (1991) (both town and Commonwealth parties
obligated by law to keep State highway in repair). Indeed, § 15
expressly names sewer and water commissions as potentially
liable parties.
 18

Before 1786, the road defect statute only specified

counties and towns as liable parties. See The Book of the

General Lawes and Libertyes Concerning the Inhabitants of the

Massachusets 6-7 (1660); St. 1693-1694, c. 6, § 6. The 1786

"Act making provision for the repair and amendment of highways"

first authorized a party injured by a road defect to bring a

civil action for damages against "the county, town, the person,

or persons, who are by law obliged to keep the same highway,

causeway, or bridge in repair" (emphasis added). St. 1786,

c. 81, § 7.8 The 1786 statute did not, however, expressly define

the term "persons."9

8 Statute 1786, c. 81, § 1, imposed a general repair duty on
inhabitants of particular localities with respect to "highways,
town-ways, causeways, and bridges." In turn, St. 1786, c. 81,
§ 7, imposed liability for defects in these same structures:
"And be it further enacted by the authority aforesaid, that if
any person shall lose a limb, break a bone, or receive any other
injury in his person, or in his horse, team, or other property,
through any defect, or want of necessary repair and amendment of
any highway, causeway, or bridge; the person or persons injured
thereby, shall and may recover of the county, town, the person,
or persons, who are by law obliged to keep the same highway,
causeway, or bridge in repair, in case they had reasonable
notice of the defect, double the damages thereby sustained, by a
special action of the case, before any Court proper to hear and
determine the same."

9 Consistent with the earlier statutes, a marginal note in
the first printed edition of St. 1786, c. 81, § 7, summarized
its provisions as "[d]amage happening through defects in ways or
bridges, shall be made good by the county or town." The
Perpetual Laws of the Commonwealth of Massachusetts 377 (1789).
To the extent the 1786 Legislature viewed "persons" as
encompassing corporate entities, they likely would have had in
mind municipal corporations. See Maier, The Debate over
 19

In Fisher, 134 Mass. 374, authored by Justice Holmes, the

court interpreted the road defect and notice statutes, and the

meaning of the reference to "persons," in the course of

reviewing the statutes' legislative and legal history. As a

noted scholar of legal history and the author of The Common Law

(1881), Justice Holmes brought special knowledge and expertise

to this interpretation. The defendant in Fisher was sued for

negligently maintaining a coal hole on a Boston sidewalk. Id.

at 374.10 Under the city ordinances, the owner was required to

keep the coal hole and its covering "in good order at all times"

and was liable to the city for any damages incurred by reason of

the coal hole being "out of repair" or negligently covered.

Revised Ordinances of the City of Boston 171-172 (1882). The

defendant claimed that he did not receive the thirty days'

Incorporations, in Massachusetts and the New Nation 76 (C.
Wright ed., 1992) (of approximately one hundred incorporating
acts passed by 1780s Legislature, two-thirds concerned local
governmental bodies, with "only a handful" concerning what would
later be considered business corporations).

10A coal hole was an underground vault covered by a hatch
with a cover where coal used for heating purposes was kept for
easy access. See S.P. Adams, Home Fires: How Americans Kept
Warm in the Nineteenth Century 105-106 (2014). Under the city
ordinances then in force, construction of a coal hole in the
sidewalk required a license from the superintendent of streets
and had to be built to certain specifications. Revised
Ordinances of the City of Boston 171-172 (1882). Negligence
suits from pedestrians in public ways alleging that defendants
had improperly covered their coal holes were common. See, e.g.,
Gillis v. Cambridge Gas Light Co., 202 Mass. 222, 223 (1909);
French v. Boston Coal Co., 195 Mass. 334, 335 (1907).
 20

notice to which he was entitled under the notice statute and

therefore that the action could not be maintained.

The court rejected this argument: "The sections imposing

liability to an action, from the St. of 1786 down, have been

part of a statutory scheme creating or regulating a public duty

to keep the highways in repair. The whole scope of that scheme

shows that it is directed to the general public duty [to keep

the way in repair], and that it has no reference to the common

law liability for a nuisance." Fisher, 134 Mass. at 374-375.

More specifically, "[t]he obligation of the 'persons' is the

same obligation as that of the counties or towns mentioned

alternatively with them," that is, the duty to maintain the

highway. Id. at 375. "But the obligation of the defendants

cannot properly be called an obligation to repair the

highway. . . . It is a duty not to dig or maintain pits in the

highway." Id. That duty, the court concluded, is different

from the public duty to maintain the highway covered by the road

defect statute. The court therefore held that the defendants

could be sued in tort for the nuisance they created with their

coal hole.

The court also went on to explain the meaning of "persons":

"The mention of 'persons' in the statute, alongside of counties

and towns obliged to repair, is easily explained. The outline

of our scheme was of ancient date and English origin. In
 21

England, while parishes were generally bound to repair highways

and bridges, a person might be, ratione tenurae,[11] or otherwise.

. . . [W]e cannot say, and probably the Legislature of 1786

could not have said, that there were no cases in the

Commonwealth where persons other than counties or towns were

bound to keep highways in repair. . . . Even if there were not,

it was a natural precaution to use the words." Fisher, 134

Mass. at 375-376.

Consistent with the holding in Fisher, we frequently

allowed tort suits to proceed against individuals or private

companies that caused road defects, while applying the statutes

to the municipal entities responsible for maintaining the ways

themselves.12 Notably, in a case with comparable facts to the

11"Ratione tenurae" is a Latin phrase meaning by reason of
tenure. Black's Law Dictionary 1454 (10th ed. 2014). "One
ground on which a private person may be held liable to repair a
public footpath or other highway is 'ratione tenurae,' that is,
that where a footpath runs through private land and the owner or
occupier of that land has from time immemorial repaired the
path, the person for the time being in possession must continue
to repair the path." Legal Memory, 73 Law J. 403, 409 (1932).

12For cases where private actors were sued directly in tort
for injuries arising from defects they caused in a public way,
see, e.g., Christman v. Shagoury Constr. Co., 349 Mass. 113, 115
(1965) (construction company that contracted with town to
install maintenance holes could be held liable in tort for road
defect in area of road around maintenance hole); Scholl v. New
England Power Serv. Co., 340 Mass. 267, 270 (1960) (electric
company and subcontractor company could be held liable to
plaintiff for injuries sustained when she fell into excavated
hole made by subcontractor as part of resurfacing project for
city); McGinley v. Edison Elec. Illuminating Co., 248 Mass. 583,
 22

instant one, a plaintiff was injured by a protruding maintenance

hole cover that the defendant electric company had laid "in [a]

public way" in conformity with specifications imposed by the

city. Miller v. Edison Elec. Illuminating Co., 283 Mass. 517,

521-522 (1933). The company argued that the plaintiff's suit

was barred because he did not provide notice pursuant to § 18.

Id. at 522. We rejected this argument: relying on Fisher, we

concluded that § 18's "requirement of notice is not applicable

. . . in an action against private corporations or individuals."

Id. Accord Regan v. John J. Amara & Sons Co., 348 Mass. 734,

737 (1965) (no notice required under § 18 in suit against

defendant private contractor that acted negligently in failing

to fill hole it made in public road while performing work for

city); Seltzer v. Amesbury & Salisbury Gas Co., 188 Mass. 242,

243–244 (1905) (no notice required under § 18 against defendant

gas company for "digging a pit and leaving it insufficiently or

587 (1924) (defendant company liable for negligence after
plaintiff fell into unguarded open maintenance hole); Rockwell
v. McGovern, 202 Mass. 6, 10 (1909) (contractor whom city had
hired to complete excavation project for transit system could be
held liable to plaintiff who was injured when part of sidewalk
collapsed); Seltzer v. Amesbury & Salisbury Gas Co., 188 Mass.
242, 244 (1905) (defendant gas company could be held liable for
injuries sustained by plaintiffs who fell into excavated trench
that defendant failed to properly fill). See also note 10,
supra (citing cases involving private companies sued for
negligent maintenance of coal holes on public ways).
 23

improperly filled, thus creating an obstruction to public

travel").

Finally, we emphasize that we have not allowed government

entities to assign or delegate their public responsibilities

under the road defect statute. As we explained in Scholl v. New

England Power Serv. Co., 340 Mass. 267, 270-271 (1960), the

"liability of a municipality under G. L. c. 84, § 15, for an

injury to a traveller sustained by reason of a defect in a way

attaches," even though the plaintiff may also have a claim

against a private party, because the "statutory obligation of

the city to keep [a public way] safe and convenient for public

use could not be delegated to" private companies contracted to

do particular road repairs. Accord Torphy v. Fall River, 188

Mass. 310, 312 (1905) (despite hiring railroad company to

reconstruct certain public streets, city "not deprived of this

right of control [over the streets], nor relieved of its

statutory duty" and could not "delegate this requirement" to

"secure exemption from liability to those suffering injury");

Brooks v. Inhabitants of Somerville, 106 Mass. 271, 274 (1871)

("not in the power of the town . . . to delegate the care of the

streets to [private contractor hired to construct water system]

as to relieve themselves from their general responsibility for

their safety and convenience"); Merrill v. Inhabitants of

Wilbraham, 11 Gray 154, 156 (1858) (town's authorization of
 24

aqueduct company to excavate road "did not discharge the town

from liability for an injury occasioned by reason thereof upon

the highway").

We emphasize today that the court in Fisher and the long

line of authority discussed supra correctly interpreted the

meaning of the road defect statute. In these decisions, the

court recognized that this statute is directed at a public duty

for maintaining the way, not at private actors causing

particular defects in the way; the latter are subject to

liability in tort. The statutory exclusive remedy applies only

to those entities that have a public duty to maintain the way,

not to private parties causing particular defects.

Unfortunately, there are also a limited number of cases

that have confused or at least not clarified this distinction.

We clarify the confusion in these cases today. Much of it can

be traced back to Dickie v. Boston & Albany R.R., 131 Mass. 516

(1881). There, we concluded that the statutes were applicable

to a railroad corporation and not to the town where the railroad

had been authorized by statute and the railroad's charter to

keep an entire bridge in repair. Thus, the town "was under no

liability" to keep the bridge under repair "because other

sufficient provision is made by law for its maintenance and

repair." Id. at 516. In this context, we concluded that the

"word 'persons' includes corporations, and applie[d] to the
 25

defendant." Id. at 517.13 A line of cases relying on Dickie,

particularly a number involving railroads, applied the statutes

to private parties, without addressing the specific statutes

involved in Dickie that imposed liability on the railroad for

the way. See, e.g., Murphy v. Boston & Me. R.R., 332 Mass. 123,

123 (1954) (railroad corporation entitled to notice under

statute, where injury occurred on its train tracks crossing

public road; citing Dickie, supra). Such cases were the

exception and not the rule.14 They nonetheless blurred the

distinction between the public entities responsible for

13Notably, in the late Nineteenth Century, a "railway
company" was regarded as a "quasi public corporation." Haupt v.
Rogers, 170 Mass. 71, 78 (1898). See 18 Am. Jur. 2d
Corporations § 31 (2019) (defining "quasi-public corporation" as
"private corporation that has been given certain powers of a
public nature, such as the power of eminent domain, in order to
enable it to discharge its duties for the public benefit"). The
only private corporations that we have ever concluded were
subject to the road defect statute were "quasi-public" railroad
or street railway corporations.

14See, e.g., Bailey v. Boston, 116 Mass. 423, 423 (1875)
("A city or town is not exempted from liability for a defect in
a highway, because it is caused by misconduct or negligence in
the construction or repair of a street railway"); Hawks v.
Inhabitants of Northampton, 116 Mass. 420, 423 (1875)
(concluding that despite "burden of certain partial repairs of
the highway" placed on company by statute, town retained
"general control . . . and with it the liability which has
always existed for injuries occasioned by want of repair");
Middlesex R.R. v. Wakefield, 103 Mass. 261, 263 (1869) (right
conferred by charters of street railway companies to use roads
"does not give them the control of the highways. . . . [T]hat
control is placed, or, more properly speaking, remains, in the
municipal authorities of the places in which any part of the
street railway is laid").
 26

maintaining the way and private entities responsible for defects

in the way but not the way itself.

We added to that confusion in Ram v. Charlton, 409 Mass.

481, 490, cert. denied, 502 U.S. 822 (1991), a case involving a

suit against a town and the Commonwealth to recover damages for

injuries sustained on a State highway that passed through the

town, where we stated that "[b]oth private parties and

governmental entities are entitled to notice within thirty days

when a defect in a way under their control is alleged under

G. L. c. 84, § 15." The ultimate source of this statement was

Dickie. We should have been clearer that notice is only owed to

the entity that has the public duty for maintaining the way,

which in that case could have only been a governmental party.

To the extent that this dictum suggested that G. L. c. 84, its

notice requirements, and the exclusive remedy provision apply to

private companies responsible for particular defects in the road

-- a conclusion that would be inconsistent with Fisher and the

other cases discussed supra -- that statement was in error.15

15We accordingly overrule Sarrouf v. Boston, 94 Mass. App.
Ct. 901, 901 (2019); Filepp v. Boston Gas Co., 85 Mass. App. Ct.
901, 901 (2014); and Bartholomew v. Charter Communications,
Inc., 84 Mass. App. Ct. 1104 (2013), in which the Appeals Court
relied on Ram to hold that suits against private corporations
based on defects that they created in public roads must be
dismissed for failure to give notice to the companies under
§ 18. In these and other cases, the Appeals Court noted the
inequity of the rule requiring notice for the particular defect.
See Sarrouf, supra at 902 (court noted that motion judge found
 27

c. The practicalities of thirty days' notice. Our

interpretation that the statutes are directed at the

governmental or quasi governmental entity or entities

responsible for the public duty of maintaining the way as a

whole, but not at private parties responsible for a particular

defect in the way, recognizes the practical realities of the

thirty-day notice provision and respects the Legislature's

intent when it imposed this tight time constraint. Notice

within thirty days is a difficult time frame to meet. The

Legislature has nevertheless decided that this time frame is

necessary to "safeguard public defendants against frivolous

claims and excessive liability by allowing such defendants to

investigate and remedy any defects expeditiously, and by

allowing them to evaluate claims and to determine at an early

stage whether liability could be imposed against them"

that plaintiff had engaged in "diligent, but unsuccessful search
of city records" and was unable to identify Boston Gas Company
as potentially responsible party); Filepp, supra at 901-902
(after explaining that it was constrained by Wolf, and
recognizing tight thirty-day deadline, court noted Legislature
was appropriate body to consider making time frame longer). See
also Farrell v. Boston Water & Sewer Comm'n, 24 Mass. App. Ct.
583, 587 n.9, 590-591 (1987) (although recognizing that "to
require separate notice within thirty days from an injured party
to the commission was unfair since such a person would naturally
assume the entire sidewalk to be owned by the city, to which
timely notice was given," court held that injured plaintiff
could not bring action for alleged road defect under § 15
against commission because she had not given notice to
commission).
 28

(citations omitted). Ram, 409 Mass. at 490-491. This notice

requirement is reasonable so long as it applies only to those

governmental or quasi governmental entities responsible for

maintaining the way. An entirely different set of problems

arises if notice must be given to private parties responsible

for particular defects in the way.16

Identifying who is responsible for the way itself is

practicable within thirty days. This also allows and

incentivizes the entity responsible for the way, and most

knowledgeable of who is responsible for the defect, to correct

the problem as quickly as possible. See Ram, 409 Mass. at 490-

491. The alternative reading -- that the notice statute instead

requires notice to the private party responsible for the

particular defect -- would impose an unrealistic deadline and

create a trap for the unwary. Identifying a private party

responsible for a particular defect within that time frame is

extremely difficult, especially without the full cooperation of

the city, town, or other governmental or quasi governmental

This is also consistent with our recognition that
16

applying the Tort Claims Act to a private limited liability
company would not serve the purpose of that act, which is to
"protect public funds." Acevedo v. Musterfield Place, LLC, 479
Mass. 705, 710 (2018). See Gallant, 383 Mass. at 711 (road
defect statute consistent with "purpose underlying the [T]ort
[C]laims [A]ct, viz., to institute a rational scheme of
governmental liability that is consistent with accepted tort
principles and the reasonable expectations of the citizenry with
respect to its government" [quotation and citation omitted]).
 29

entity responsible for the way itself, which may have contracted

the work causing the defect to many different entities.

Municipal workers have competing responsibilities that make

their immediate and continuous cooperation undependable.17 We

discern no such intention.

Moreover, the rest of G. L. c. 84 contains numerous

accommodations intended to ensure that an injured person who

strives in good faith to comply with the notice requirement is

not barred from bringing a claim, indicating an over-all

intention to provide leniency in the notice requirement.18

17It may be particularly difficult to identify the
corporate owner of a maintenance hole cover, as many older
covers are "totally unidentified," and "[o]ne is left to
conjecture their ownership and function." M. Melnick, Manhole
Covers 29 (1994). Even where a cover does reveal some
identifying information, an injured person would still be
required to return to the scene of injury, search a cover and
municipal records for identifying information, determine whether
the corporation or a successor exists, and track down and serve
the appropriate corporate entity within thirty days, a most
difficult task in such a tight time frame.

18General Laws c. 84, § 18, provides that notice "shall not
be invalid or insufficient" if the injured person inaccurately
states "the name or place of residence of the person injured, or
the time, place or cause of the injury, if it is shown that
there was no intention to mislead and that the party entitled to
notice was not in fact misled thereby."

General Laws c. 84, § 19, entitled "Service of notice,"
requires that notice be in writing and specifies to whom notice
must be given in the case of a county, city, town, or person.
Making clear that its provisions are forgiving, § 19 provides
that "[a]ny form" of written communication signed by the injured
person, or by some person acting on his or her behalf, that
includes "the information that the person was so injured, giving
 30

In sum, the statutory language, the legislative and legal

history, the case law, and the practicalities of the thirty-day

notice provision all lead to the conclusion that, although the

road defect statute provides the exclusive remedy against a

governmental or quasi governmental entity responsible for

maintaining a way, that statute and the accompanying notice

statute were not meant to displace the common-law remedy against

a private party responsible for a defect in the way. Here, both

G. L. c. 84, § 1, and the city's municipal code unambiguously

place the obligation to maintain and repair the streets of

Boston on the city. See Boston Municipal Code § 11-6.1 (2010)

(commissioner of public works will "have charge of and keep

clean and in good condition and repair the streets"). Veolia's

assumption of the "burden of certain partial repairs of the

the name and place of residence of the person injured and the
time, place and cause of the injury or damage, shall be
considered a sufficient notice." Moreover, in an instance where
"physical or mental incapacity" renders it "impossible for the
person injured to give the notice within the time required, he
may give it within thirty days after such capacity has been
removed."

General Laws c. 84, § 20, entitled "Omissions in notice;
notice of insufficiency," offers amnesty to an injured person
who has inaccurately stated the time, place, or cause of the
injury. Under this section, a defendant may "avail himself" of
the insufficiency of the plaintiff's notice only if the
recipient notifies the plaintiff in writing within five days of
receipt that the defendant finds the plaintiff's notice
inadequate and requests a written notice that conforms with the
statutory requirements. If the injured person complies, this
revised notice "shall have the effect of the original notice."
 31

highway" in connection with its limited occupation of a portion

of the street does not transform it into the party obliged by

law to maintain the entire street. Hawks v. Inhabitants of

Northampton, 116 Mass. 420, 423 (1875). See Scholl, 340 Mass.

at 272 (city "responsible because of failure to abate the defect

by whomsoever created" and thus may be liable under road defect

statute [quotation and citation omitted]); Snow v. Housatonic

R.R., 8 Allen 441, 443 (1864) ("remedy which the [road defect]

statute gives for such injuries against towns is only cumulative

or additional to that which the party injured has at common law

against the person by whose agency the obstruction or defect was

caused or permitted to continue"). Veolia's repair obligations

are "confined to the specific spot where the [utility cover] is

. . . -- exists only by reason of the [cover], and not as part

of a general duty to repair." Fisher, 134 Mass. at 375.19 This

case is comparable to the many other instances where courts have

held private companies liable in tort for injuries caused by

defects that they created in a public way, including for

misaligned or otherwise defective maintenance hole covers. See

19 Indeed, the city's municipal code specifically
contemplates that liability will attach in the first instance to
the city because it requires Veolia to indemnify the city
"against all claims and demands of all persons for damages,
costs, expenses or compensation for, on account of, or in any
way growing out of, or the result of any surface defect
occurring wholly or in part within the area described in [§] 11-
6.20." Boston Municipal Code § 11-6.21 (1983).
 32

Miller, 283 Mass. at 522. See also note 12, supra (citing

cases). Accordingly, Meyer's failure to give notice to Veolia

within thirty days of injury does not affect his ability to

proceed against Veolia in a common-law negligence action.

3. Conclusion. For the foregoing reasons, we reverse the

grant of summary judgment to Veolia.

So ordered.