32 Mass. App. Ct. 495 | Mass. App. Ct. | 1992
In their complaint, the plaintiffs claim that Evelyn J. Baird was injured when she tripped over the stump of what had been a signpost maintained on a public sidewalk in the city of Somerville (city) by the Massachusetts Bay Transportation Authority (MBTA) and that her injuries were caused by the negligence of the city and the MBTA. They further allege that Evelyn J. Baird’s husband suffered a loss of consortium and that timely statutory notice pursuant to G. L. c. 84, § 18, was given to the city.
For purposes of the appeal, the parties agree that the MBTA has a nonstatutory common law duty to inspect, maintain, and repair its signposts. The central issue, therefore, is whether the plaintiffs’ claims against the MBTA are encompassed by the provisions of G. L. c. 84, § 15,
The definition of “defect” as “anything in the state or condition of the'way that renders it unsafe or inconvenient for
The record is silent as to the cause of the defective condition of the MBTA signpost. We also have not been favored with any information concerning any agreement between the MBTA and the city with respect to the placement and maintenance of the signpost. We are therefore bound by the parties’ stipulation that the MBTA has a nonstatutory common law duty to inspect, maintain, and repair its signposts. In concluding that this common law duty to repair is encompassed by the phrase “by law obliged to repair” in G. L. c. 84, we rely primarily on the authority of Wolf v. Boston Water & Sewer Commn., supra, and Farrell v. Boston
The plaintiffs obliquely attempt to distinguish between a claim based upon negligent failure to repair the signpost and negligent failure to repair the sidewalk in which the signpost was imbedded. That argument ignores the factual premise of the plaintiffs’ complaint: that Evelyn Baird’s fall was caused by a defect in the sidewalk, i.e., a tripping hazard which made the sidewalk unsafe for ordinary travel. See Miles v. Commonwealth, 288 Mass. 243 (1934) (A decaying tree “within the limits of the constructed traveled roadway” held to be a defect under G. L. c. 81, § 18, which governs defects in State highways and specifically incorporates G. L. c. 84, §| 15 & 18). By grounding their claim on a defect in a municipal way, the plaintiffs bound themselves exclusively to the remedial provisions of G. L. c. 84. See Wolf v. Boston Water & Sewer Commn., 408 Mass. at 492 & n.4; Farrell v. Boston Water & Sewer Commn., 24 Mass. App. Ct. at 590. Accordingly, the plaintiffs’ attempt to place the MBTA’s duty to repair outside of that statute, if successful, would avail them nothing since the obligation to repair the sidewalk then would revert to the city. The plaintiffs “may not impose on the [MBTA] a common law duty to inspect the identical location and to make the identical repairs as the city was obli
The plaintiffs argue the unfairness of requiring the victim of a sidewalk accident to notify, within thirty days, the party responsible for repair of the offending defect when identifying clues are not readily apparent and one reasonably might assume that only the city has repair obligations. The MBTA counters that, without prompt notice, it would often be in a position of having to investigate and defend against defect based claims long after the occurrence of an injury and at a time when significant changes may have occurred at the accident scene. It also cites the benefit to the public of prompt notification requirements which can be expected to result in expeditious remedial measures and the prevention of other injuries. See Martel v. Massachusetts Bay Transp. Authy., 403 Mass. 1, 4-5 (1988). While we have recognized that there may be some merit to the plaintiffs’ unfairness claims, we have noted, nevertheless, that “[c] are must be taken in such circumstances ... to select the correct entity against whom to proceed.” Farrell v. Boston Water & Sewer Commn., 24 Mass. App. Ct. at 587-588 n.9. We leave to the Legislature any more dispositive recognition of the plaintiffs’ argument.
We reject the claim for loss of consortium on two grounds: (1) The argument in support of the claim does not meet the requirements of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). It consists of one sentence unsupported by citation or articulated reasoning. Therefore, we are not obliged to recognize it. Lolos v. Berlin, 338 Mass. 10, 14 (1958). A. Leo Nash Steel Corp. v. Southern New England Steel Erection Co., 9 Mass. App. Ct. 377, 385-386 (1980).
Order dismissing report affirmed.
Final judgment for the MBTA was entered on the joint motion of the plaintiffs and the MBTA following the allowance of the motion for summary judgment. See Mass.R.Civ.P 54(b), 365 Mass. 821 (1974), and Dist.Mun.Cts.R.Civ.P. 54 (1975).
General Laws c. 84, § 15, as amended through St. 1965, c. 214, provides, in relevant part, as follows:
“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 or town more than one fifth of one percent of its state valuation last preceding the commencement of the action nor more than five thousand dollars. . . .”
General Laws c. 84, § 18, as amended through St. 1979, c. 163, § 1, provides, in relevant part, as follows:
“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.”
Statute 1978, c. 512, § 18, expressly provided that the provisions of the Massachusetts Tort Claims Act, G. L. c. 258, as appearing in § 15 of c. 512, were not to be construed as superseding or repealing G. L. c. 84, §§ 15-25. See Ram v. Charlton, supra at 485.
The plaintiffs properly do not attempt to rely on the cases which distinguish between governmental and proprietary functions, that distinction having been abrogated by the Massachusetts Tort Claims Act, G. L. c. 258. Wolf v. Boston Water & Sewer Commn., supra at 492 n.4.