(dissenting). Unquestionably, the trend of recent case law is an expansive reading of G. L. c. 84, § 15, such that virtually all public roadway conditions and deficiencies which are implicated in personal injuries and property damage are construed as defects under the statute. However, Norris v. Newton, 255 Mass. 325, 327 (1926), on which the plaintiff relies, is clear that “the removal of the cover of the manhole temporarily, while the sewers were being cleaned, was not a defect in the highway within the meaning of the statute.”
In the case before us, and viewing the facts, as we must, in the light most favorable to the plaintiff, the plaintiff was injured when he fell into a temporarily open manhole in the sidewalk of a flooded street on a windy, stormy, and rainy night. The manhole had been opened to drain the flooded roadway, and it was located immediately adjacent to a parked Somerville department of public works truck with two employees inside it. Entry by motor vehicle onto this flooded road on which the plaintiff wished to travel was barred by barrels ostensibly placed there by the Somerville department of public works employees. The plaintiff accordingly left his vehicle and approached the department of public works truck on foot to ask about removing the barrels. As he was knocking on the truck’s window, he fell into the open manhole.
The majority attempts to distinguish this case from Norris v. Newton, supra, on its facts. Because I do not believe the facts before us permit us to conclude, as the majority does, that the open manhole here, unlike Norris, was left unguarded and unattended, I do not think this case is factually distinguishable from Norris and hence conclude that Norris must control the result here.
Accordingly, I dissent and would reverse the allowance of the defendant’s motion for summary judgment.