368 Mass. 815 | Mass. | 1975
The plaintiff, as administrator, on March 4, 1974, brought an action against the Commonwealth for its alleged negligent failure to keep a State highway free of an unnatural accumulation of ice, thereby causing a collision of vehicles on January 14, 1973, in which the decedent, the driver of one of them, was alleged to have suffered injuries which resulted in her death on the same day after conscious suffering. Damages of $500,000 were claimed. The judge of the Superior Court on March 24, 1974, allowed, without opinion, a motion by the Commonwealth to dismiss the declaration; the ground urged by the Commonwealth was the formal one that the plaintiff had proceeded by writ and declaration rather than petition and order of notice, as then required by G. L. c. 258, § 1. The statute has since been amended by St. 1973, c. 1114, § 337, effective July 1, 1974, to conform to the new Massachusetts Rules of Civil Procedure. To “ensure justice,” we examine the merits, which have been argued. See Mass. R. Civ. P. 1A, par. 10, 365 Mass. 731 (1974); Mass. R. A. P. 1A, 365 Mass. 845 (1974). The declaration was in three counts. One count sought a declaratory judgment that the Commonwealth was not shielded by any immunity and was liable to the same extent as any ordinary defendant would be for negligent conduct. This count deserved to be dismissed because, as we recently said in Hannigan v. New Gamma-
So ordered.