Filepp v. Boston Gas Company, Inc. (Lawyers Weekly No. 11-017-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑115 Appeals Court TOM FILEPP vs. BOSTON GAS COMPANY, INC. No. 13‑P‑115. February 27, 2014. Notice, Action alleging injury caused by defect in public way, Timeliness. Way, Public: defect. Negligence, Municipality. Municipal Corporations, Liability for tort. Gas Company. Public Utilities. The plaintiff suffered injuries after falling from his bicycle while riding on Harvard Street in Brookline on May 31, 2005. The plaintiff’s amended complaint alleges that his fall was caused by a two-inch wide “rut” in the pavement, created by Boston Gas Company, Inc. (Boston Gas) incident to work it performed on gas lines running under the street. Boston Gas moved for summary judgment based on the plaintiff’s failure to send notice of his claim to Boston Gas within thirty days of his injury.[1] See G. L. c. 84, §§ 15 & 18.[2] A judge of the Superior Court allowed Boston Gas’s motion, and entered a judgment of dismissal. This appeal followed. The case is controlled in material respects by Wolf v. Boston Water and Sewer Commn., 408 Mass. 490 (1990) (Wolf), and Ram v. Charlton, 409 Mass. 481, cert. denied, 502 U.S. 822 (1991) (Ram). As the court observed in Ram, the statutory entitlement to notice as a precondition to any action seeking recovery of damages extends to both private and governmental entities. See id. at 490. See Hurlburt v. Great Barrington, 300 Mass. 524, 526 (1938) (fire district). And Wolf illustrates that, contrary to the plaintiff’s argument, the repair obligation held by a “person by law obliged to repair” a way need not be either continuous in time or coextensive with the entirety of the way; it is enough that the obligation extends (as it does in the present case) to repairs necessary to restore a way to its condition before it was disturbed by the work giving rise to the alleged defect. See Wolf, supra at 493. The plaintiff places misplaced reliance on Jones v. Boston, 188 Mass. 53 (1905), Seltzer v. Amesbury & S. Gas Co., 188 Mass. 242 (1905), and D’Urso v. Methuen, 338 Mass. 73 (1958). Jones v. Boston is distinguishable on its facts, as the contractor in that case was obliged by contract, rather than by law, to repair the way at issue. See 188 Mass. at 58. D’Urso v. Methuen “premised liability on […]