18 Mass. App. Ct. 337 | Mass. App. Ct. | 1984
In her complaint, the plaintiff alleges that she fell and was hurt because of a defect in a sidewalk maintained by the Metropolitan District Commission (MDC) along Revere Beach Parkway. The MDC moved for judgment on the pleadings (Mass.R.Civ.P. 12[c], 365 Mass. 756 [1974]), on the ground that G. L. c. 92, § 36, immunizes the Commonwealth
Section 18 of St. 1978, c. 512 (the “construction clause”), provided that, “The provisions of this act shall be construed liberally for the accomplishment of the purposes thereof but shall not be construed to supersede or repeal section eighteen of chapter eighty-one and sections fifteen to twenty-five, inclusive, of chapter eighty-four of the General Laws. Any other provision of law inconsistent with any other provisions of this chapter shall not apply” (emphasis supplied). General Laws c. 81, § 18, the first mentioned of the several provisions rescued from repeal, renders the Commonwealth immune from suit for fall-down incidents on the sidewalk of any State highway. Section 18 parallels very closely the language in G. L. c. 92, § 36, which exculpates the MDC from liability on sidewalk cases. Indeed, as the Attorney General’s brief informs us, the most recent amendment to § 36 (St. 1923, c. 230, which inserted the current text of § 36) was entitled “An Act making uniform the law relative to liability for defects in metropolitan boulevards and in state highways.”
We have no difficulty, therefore, in agreeing with the Commonwealth that common context and common sense would induce a reader of the construction clause to conclude that the omission of the MDC from the savings provision was an oversight. The plaintiff has not advanced a persuasive argument to the contrary. Having progressed that far, however, we must face up to what does appear in the construction clause. It tells us first that “[t]he provisions of this act [i.e., the Massachusetts Tort Claims Act] shall be construed liberally for the accomplishment” of their purposes. The principal purpose is the abolition of sov
Mistake though it may have been, the omission of the MDC from the savings provision of the construction clause is unambiguous.
At this point in the opinion it would usually be appropriate to intone that the Legislature is capable of amending the construction clause of the Massachusetts Tort Claims Act if it wishes so to do. Indeed, it has done just that. By St. 1983, c. 392, the first sentence of the construction clause was amended to include a reference to G. L. c. 92, § 36, in the savings provision. The measure was entitled, “An Act clarifying the protection extended to public bodies against suits for injuries relating to defects in boulevards under their jurisdiction.” The verb “clarifying” presupposes an ambiguity not present in the statutory material before us. Absent an ambiguity, we do not take the title of the 1983 act as an aid to reading the 1978 act. Contrast Brown v. Robinson, 275 Mass. 55, 57 (1931). Nor will we take the 1983 amendment as a basis for reaching back to 1978 to fill in an omission on the hunch that it was unintentional. Cranberry Realty & Mortgage Co. v. Ackerley Communications, Inc., 17 Mass. App. Ct. at 257. The Commonwealth’s argument that we should give the 1983 act retroactive application is contrary to the general rule that legislation is to have prospective application, particularly when substantive rights are thereby taken away. Hill v. Duncan, 110 Mass. 238, 240 (1872). Goes v. Feldman, 8 Mass. App. Ct. 84, 87-90 (1979).
The MDC has raised no issue as to the propriety of notice in this case under G. L. c. 258.
Judgment affirmed.
In addition to G. L. c. 81, § 18, the savings provision excluded from repeal G. L. c. 84, §§ 15 to 25, inclusive. Those deal with recovery for damages attributable to injury arising out of defects in public ways — with no sidewalk exception — under the jurisdiction of a county, city, town, or “person obliged by law to repair the same.” Section 15 imposes a limit of liability of $5,000. See Trioli v. Sudbury, 15 Mass. App. Ct. 394, 396 (1983).
We hasten to add that if the omission of G. L. c. 92, § 36, from the construction clause was an error it was an entirely understandable one. It is no easy matter when drafting a statute to keep in mind all the exceptions which might be desirable.