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Potholes and Other Defects in Public Ways


by Barbara M. Callahan, Esq.

Most of us in Massachusetts are still unfortunately digging out from this weekend’s Blizzard of 2013.  Many highway and public works crews are still working to clear snow and debris from the streets some three days later.  Today’s rain is not making their jobs any easier.  Once the snow, slush and ice are cleared, however, sometimes potholes or other defects remain.  These defects can cause personal injury and damage to motor vehicles.  Who is liable for this damage?

Potholes and other problems found on streets and highways are commonly referred to as defects in public ways.  Massachusetts General Law chapter 84, section 15 provides a remedy for those who suffer personal injury or property damage because of such defects on city or town roads.  For state highways, Massachusetts General Laws chapter 81, section 18 applies.

Under these statutes, if a person sustains a bodily injury or property damage because of a defect or want of repair in or upon a public way, and the entity responsible for maintaining the way had reasonable notice of the defect such that it could have been prevented by the exercise of reasonable care, that person may bring a claim against the entity responsible to recover damages.

The term “defect” is construed very broadly in cases involving these statutes.   A defect on a public way may constitute anything in the condition or state of the roadway which renders it unsafe or inconvenient for ordinary travel.  This may include not only potholes, but chains across the road, items that have fallen in the way or signs that have been knocked over.

Before a claim can be made, a person initiating such a claim must provide written notice to the entity responsible within 30 days after the damage or injury.  Failure to do so will defeat any claim.

The amount of damages that can be awarded under these statutes is severely limited.  With regards to defects in city or town roads, a person is limited to $5,000.00 under M.G.L. c 84, section 15.  With regards to defects in highways, a person is limited to $4,000.00.

The recovery under these statutes is a person’s exclusive remedy.  That means that a person cannot also make a common law claim for negligence against the city or town.  In theory, these statutes provide citizens with a clear procedure to follow in order to initiate a claim.  In reality, these statutes are used by cities and towns to limit their liability for their clear negligence.

If you have suffered injury or property damage from what you believe is a defect in a public way, call us.  In some cases, there may be other parties that could be held responsible in ways that may not be readily apparent.  That’s why it is always best to have any potential claim reviewed by an experienced lawyer.

Lastly, the term defect under these statutes does NOT include snow or ice on a public way, so please drive carefully not only for these next few days but for the rest of the winter.

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