The Supreme Judicial Court, Massachusetts’ highest court, recently ruled that an injured party did not have to send the thirty-day statutory notice of a road defect to a private company responsible for maintaining a utility hole, utility cover and the surrounding asphalt.

Plaintiff was a bicyclist who struck a utility cover that was misaligned with the road surface. The notice was only needed against a governmental actor, like a city or town. The Court therefore reversed the grant of summary judgment for the utility company.

The injured party did provide the required notice of a defective road condition to the City of Boston. (See G.L. c. 218, c. 84, 18.) Probably not coincidentally, the city responded thirty-one days after the incident that it was not responsible for the road work but the work was “under the jurisdiction of Veolia Energy Co.” The attorney for the injured party then immediately sent notice to Veolia but after the thirty-day notice period. Veolia moved for summary judgment in the case, asserting that the notice to it was too late.

However, the court ruled that the notice requirement did not apply to the private actor, Veolia. The court reasoned that the statute that set forth the notice requirement was meant to apply to the public duty to maintain the roadways and did not apply to a private entity that did road repair work. The court noted that the notice period was short and that it would not be reasonable for an injured plaintiff to have to identity a private contractor responsible for road work within that time frame.

The case is Meyer v. Veolia Energy North America, Massachusetts Supreme Judicial Court, May 8, 2019.

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