Massachusetts Appeals Court Addresses Notice Requirement Under Defective Way Statute

If you have been hurt in a slip and fall accident on someone else’s property, you may have legal options. At The Law Offices of Barry Feinstein & Affiliates, P.C., our seasoned Massachusetts injury attorneys are committed to getting our clients the justice and compensation they rightfully deserve for the harm that they have suffered. With years of experience, we are prepared to represent you in negotiating a settlement agreement or in proving your claim in court.

In a recent Massachusetts court decision, the plaintiff stepped into an uneven depression in the road and sustained a severe injury to her left foot. She informed the City of Boston of her claim within the time frame required by Massachusetts General Laws c. 84, § 18, also known as the defective way statute, which mandates that a person injured due to a defect on a public way must send notice within thirty days after the injury to the, “county, city, town or person by law obliged to keep said way in repair.”

A few months later, the city sent the plaintiff a letter denying responsibility and informing her that a gas company was actually responsible for her injuries. The plaintiff then sent notice to the gas company and filed her Complaint in the Superior Court against the City of Boston and the gas company. The gas company filed a motion to dismiss the claim due to the late notice under the statute. The court denied the motion and the case went to trial.

At the end of the trial, the gas company filed a motion for directed verdict. A motion for directed verdict in Massachusetts state court is granted when there is no legally sufficient evidentiary basis for a reasonable jury to reach a different conclusion. Here, the court found that the plaintiff did not inform the gas company of her injuries within thirty days and that the plaintiffs’ evidence revealed that the gas company’s identity as a responsible party was readily discoverable. Thus, the court granted the gas company’s motion, and the plaintiff appealed.

On appeal, the plaintiff admitted that she did not notify the gas company within the thirty days, but claimed it was because it was “virtually impossible” for her to discover that the gas company was the responsible party. The plaintiff argued that there should be an exception to the notice requirement in her case since it would be unfair to expect her to give notice when she was not able to identify the at-fault party.

The Appeals Court did not agree and upheld the trial court’s dismissal of the case. In it’s ruling, the court explained that a plaintiff could not justify late notice by claiming that the responsible party was not identifiable. Rather, late notice is only excused if the plaintiff had a physical or mental incapacity that made it impossible to provide notice within the thirty-day time frame. According to the court, the explicit inclusion of this exception implied that lawmakers deliberately refrained from creating additional exceptions.

If you have been injured in a slip and fall accident on someone else’s property, you may be entitled to compensation for your harm. At The Law Offices of Barry Feinstein & Affiliates, P.C., our seasoned Massachusetts injury attorneys will investigate the facts of your case and come up with a sound legal strategy accordingly. For a free consultation, call us today at 1-800-262-9200 or contact us online.