A recent Massachusetts Appeals Court case illustrates the need to act promptly when you have been injured as a result of a defect in a public road or way. In Filepp v. Boston Gas Company, Inc., the Appeals Court upheld the lower court’s dismissal of an injured man’s case due to a failure to timely put Boston Gas on notice of the defects created by Boston Gas while performing work on a street. Mr. Filepp was riding his bicycle on Harvard Street in Brookline and sustained serious injuries when his bike hit a two inch wide rut in the pavement created when Boston Gas was laying gas lines under the street. A Massachusetts statute, G.L., c. 84, Sections 15 & 18, requires that notice of the defect must be sent to the governmental entities or “person by law obliged to repair” a way within 30 days of an injury. Mr. Filepp’s attorneys sent notice to the Town of Brookline within 30 days, but the town notified him two months later that Boston Gas was responsible to repair the rut in the pavement. His attorneys thereafter sent notice of the defect to Boston Gas, but it was several months beyond the statutory 30 days’ notice period. When Mr. Filepp filed a lawsuit against Boston Gas, the company moved to dismiss on the grounds that notice was not given in a timely manner and a Superior Court judge agreed.
Interestingly, the same statute that appears so strict on notice requirements for defects in a public way allows for late notice if the defect involves snow or ice. A defense of late notice only applies if the defendant can prove that he was prejudiced by the late notice. The lesson to be learned, however, is that an injury caused by defects requires immediate action or you could lose your right to be compensated for that injury. It also underscores the disadvantage that plaintiffs can have in these cases as there may be no way for a plaintiff or his or her attorneys to be aware that a third party may be responsible for a defect on a public road.
SUGARMAN attorneys have an extensive history of representing clients who have been injured by defective public roads or ways. If you or a loved one has been injured as a result of a defect in a public road or way and wish to speak to one of our attorneys regarding liability, please fill out a Contact Form, call us at (617) 542-1000 or e-mail firstname.lastname@example.org.