Opinion
No. 12–P–1496.
2013-07-23
Robert BARTHOLOMEW v. CHARTER COMMUNICATIONS, INC.
By the Court (GRASSO, HANLON & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Robert Bartholomew, appeals from a Superior Court summary judgment in favor of the defendant, Charter Communications, Inc. (Charter). His main contention is that his claims against Charter are controlled by principles of common law negligence, and not G.L. c. 84, because the defendant is a private, for-profit corporation, and is neither a municipality nor a “person” entitled to notice of injury under the statute.
The provisions of G.L. c. 84 pertain to the maintenance and repair of public ways in the Commonwealth; specifically, § 15 provides for recovery by one injured “by reason of a defect or a want of repair” in or upon a public way. G.L. c. 84, § 15.
Background. The material facts are not in contention. In May, 2002, as part of Charter's construction of a conduit bank, a third-party company installed a manhole on Charter's behalf in the area of Belmont and Rodney Streets in Worcester. On July 24, 2007, Bartholomew sustained serious injuries when he was thrown from his motorcycle after his front wheel hit a sinkhole in the area of the manhole and flipped over. At the time of the accident, Worcester city ordinance c. 12, § 22, was in effect.
On January 8, 2009, Bartholomew filed a complaint, alleging that Charter was “negligent in the creation and maintenance of the area of the street at issue and [was] further negligent in failing to warn of or properly barricade the dangerous and defective condition, i.e. the sinkhole”; this was the first notice of injury Bartholomew provided to Charter. At the close of discovery, Charter filed a motion for summary judgment, asserting that Bartholomew had failed to provide Charter with the prerequisite notice of injury necessary under G.L. c. 84, § 18.
Paragraph (b) of § 22 provides, among other things, that “[o]ne who owns, possesses or controls any structure, excavation or conduit [including manholes] in, under, over, or upon a public way, ... shall be deemed to have entered into the following agreements with the City [of Worcester]: ... (iii) to maintain the public way directly above or adjacent to said structure, excavation or conduit, as the case may be, in good repair and condition....”
.General Laws c. 84, § 18, as amended through St.1979, c. 163, § 1, provides that “[a] person so injured shall, within thirty days thereafter, give to the ... 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 ... 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.”
After the motion hearing on January 19, 2012, the judge determined that Charter was a “person” under G.L. c. 84, and that it was “in fact [‘by law obliged’] to maintain the public way directly above or adjacent to the conduit bank and manhole constructed in May of 2002” pursuant to the ordinance. From this, he concluded that “Charter was entitled to receive notice of said claim under G.L. c. 84, § 18[,] within thirty days of [Bartholomew's] injury. [Bartholomew] [h]aving not provided such notice, and such notice being a condition precedent to the maintenance of such an action, the claim must be dismissed as a matter of law.” Bartholomew filed a timely notice of appeal.
Discussion. On appeal, Bartholomew argues that the case is controlled by principles of common law negligence, rather than G.L. c. 84, and that, even if c. 84 applies, its notice provision is limited to municipalities and quasi-corporations performing municipal functions. For this reason, in his view, c. 84 does not apply to Charter, a private corporation. In addition, Bartholomew contends that Charter has failed to show how it has been prejudiced by lack of notice, and that the Worcester ordinance is irrelevant to this case, and not properly before the court.
“In reviewing the grant of a motion for summary judgment, we conduct a de novo examination of the evidence in the summary judgment record, ... and view the evidence in the light most favorable to the part[y] opposing summary judgment....” LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012). Here, it is undisputed that Bartholomew was injured by a defect on a public way in 2007 and that he did not provide Charter with notice of his injuries until the filing of his complaint in 2009.
In order to determine whether Bartholomew was required to notify Charter under G.L. c. 84, the first question is whether Charter is a “person” for the purposes of c. 84. “The word ‘person’ in the phrase of the statute, ‘or person by law obliged to repair the same,’ includes a corporation.” Hurlburt v. Great Barrington, 300 Mass. 524, 526 (1938), quoting from G.L. c. 84, § 15. Charter is a Delaware corporation and therefore properly is considered a “person” under c. 84.
On the second issue, whether Charter was “by law obliged” to maintain the way, the materials before the motion judge indicate that both parties were in agreement, at least for purposes of summary judgment, that “Charter was an entity required by law to maintain the area of roadway where the pothole was located.” This shared viewpoint infuses the arguments on appeal as well. In the circumstances, we shall assume the merit of the proposition, see Baird v. Massachusetts Bay Transp. Authy., 32 Mass.App.Ct. 495, 496–497 (1992); Employers' Liab. Assur. Corp., Ltd. v. Hoechst Celanese Corp., 43 Mass.App.Ct. 465, 472 n. 8 (1997), and we conclude that being “required by law to maintain” satisfies the statutory concept of being “by law obliged to repair.” See Baird, supra at 497–498.
We note that the language of the Worcester ordinance makes clear that, at the time of Bartholomew's accident, there was an agreement in place with the city of Worcester that Charter was to keep the subject area in good repair. The plaintiff's argument that the ordinance is not properly before the court fails because, as Charter points out, the ordinance was included, without objection, in the “Consolidated Statement of Material Facts to Which There is No Genuine Issue to be Tried” submitted for the purpose of summary judgment. In any event, the ordinance is not a necessary ingredient to our decision in light of the parties' mutual understanding that Charter is “required by law” to maintain the subject area.
If Charter was “by law obliged to repair” the roadway, we are compelled to reject Bartholomew's argument that his claim of negligence sounds in tort, independently of G.L. c. 84. See Ram v.. Charlton, 409 Mass. 481, 489 (1991) (remedy under G.L. c. 84, § 15, is exclusive).
For these reasons, Bartholomew was required to meet the thirty-day notification condition precedent contained in the statute before “he may recover ... in an action of tort.” G.L. c. 84, § 18. See Paddock v. Brookline, 347 Mass. 230, 231–232 (1964) (statutory notice is condition precedent to action and “an essential ingredient indispensable to the existence of the cause of action”); Ram v. Charlton, 409 Mass. 481, 489 (1991) (notice is condition precedent and statute supplies exclusive remedy).
The motion judge properly ruled that “Charter was entitled to receive notice of [the] claim under G.L. c. 84, § 18[,] within thirty days of [Bartholomew's] injury.” Viewing the evidence in the light most favorable to Bartholomew, all material facts are established and it is clear that Charter is entitled to a judgment as a matter of law. See Nutt v. Florio, 75 Mass.App.Ct. 482, 485 (2009).
Because notice is a condition precedent to the existence of the cause of action, the question whether Charter was prejudiced by the lack of notice is irrelevant.
Judgment affirmed.