PDP Achieves Dismissal of Negligence Claims against City for Defective Presentment of Claim – Twohig v. Salem, C.A. No. 1584CV02311 (Suffolk Sup. Ct. Jun. 9, 2016)

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The Suffolk Superior Court recently granted a Motion to Dismiss in favor of the City of Salem in a negligence suit brought against the City by a bicyclist who allegedly suffered serious injuries while riding on a public way in Salem. The plaintiff alleged he was riding his bicycle on the sidewalk of a busy public way in a commercial district when he collided with an unprotected wire cable which was affixed to a sidewalk to support a light pole.  As a result of the collision, the plaintiff alleged he sustained lacerations and a fracture to his hand, which ultimately required extensive medical treatment and surgery.  The plaintiff alleged he incurred approximately $30,000 in medical bills as a result of his injuries.  He brought negligence claims against the City of Salem and two co-defendants, National Grid and Verizon, and alleged that the City was negligent in its maintenance of the guy-wire as its owner and party in control for failing to outfit it with a protective covering or a bright indicator.  The plaintiff’s spouse also brought a claim against the City for loss of her husband’s consortium.

Nearly five months after the plaintiff’s bicycling accident, the plaintiffs mailed presentment letters to the City and the codefendants to provide notice of an intent to file a claim.  The plaintiffs’ letters made no reference to either M.G.L. ch. 84, the public way defect statute, or M.G.L. ch. 258, the Massachusetts Tort Claims Act.  The plaintiffs then filed suit in July, 2015.  Before engaging in any discovery, PDP filed a Motion to Dismiss the plaintiffs’ complaint arguing that because the plaintiff’s injury resulted from a collision with a guy-wire that constituted a “defect” under M.G.L. ch. 84, § 15, his cause of action should be governed by Chapter 84 and that statute’s notice provision, §18, which requires presentment of a claim within thirty days of the accident or injury (regardless of the efforts to portray the claim as one being governed by the MTCA and its six-month statutory notice period).  The Court agreed, and held that where the plaintiffs failed to give notice to the City within the proper statutory period, the dismissal of all of the plaintiff’s claims against the City was appropriate.

 Published in PDP’s Developments in Municipal Law Fall 2016 Newsletter.