ELAINE M. HUFF, administratrix, vs. CITY OF HOLYOKE.

ELAINE M. HUFF, administratrix, vs. CITY OF HOLYOKE.

386 Mass. 582

March 3, 1982 - June 23, 1982

Hampden County

Present: HENNESSEY, C.J., LIACOS, ABRAMS, NOLAN, & O'CONNOR, JJ.

General Laws c. 229, Section 1, provided the exclusive remedy for a claim against a city for wrongful death arising out of a defect in a public way inasmuch as the accident occurred prior to the enactment of G. L. c. 258, the Massachusetts Tort Claims Act, and such a claim could not, therefore, be brought as an action for common law nuisance. [583-586]

CIVIL ACTION commenced in the Superior Court on August 5, 1974.

The case was tried before Sheehy, J., a District Court judge sitting under statutory authority.

The Supreme Judicial Court granted a request for direct appellate review.

Philip O'Brien, Jr., for the plaintiff.

Harold F. Brunault, City Solicitor, for the defendant.

LIACOS, J. Elaine Huff, administratrix of the estate of Richard J. Huff, brought this action in the Superior Court against the city of Holyoke (city) seeking to recover damages for the conscious pain and suffering and wrongful death of her intestate. The jury returned a verdict for wrongful death in the amount of $100,000 and for conscious suffering in the sum of $10,000. The trial judge vacated the jury verdict and entered judgment for the city. The plaintiff appealed from this judgment, and the defendant cross appealed, raising error in the judge's instructions to the jury. [Note 1] We granted the plaintiff's application for direct appellate review.

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The evidence presented at trial reveals that on June 25, 1973, the plaintiff's intestate, while driving his motorcycle on a public way [Note 2] in Holyoke, struck a chain that a city employee had stretched across the street. The plaintiff's intestate subsequently died of injuries sustained in the accident. The plaintiff alleged that the chain constituted a public nuisance negligently created by a city employee, for which the city was liable. The jury found that the plaintiff's intestate was 0% negligent at the time the accident occurred and that the city was 100% negligent.

The judge, acting on the city's motion for judgment notwithstanding the verdict, set aside the jury verdict. We agree that the jury verdict should have been set aside; however, we do so on different grounds than relied on by the judge.

The Massachusetts Tort Claims Act is inapplicable to the case at bar, and thus we follow the law as it existed before August 16, 1977, the effective date of G. L. c. 258, as appearing in St. 1978, c. 512, Sections 15, 16. See Vaughan v. Commonwealth, 377 Mass. 914 , 915 (1979); Lemasurier v. Pepperell, 10 Mass. App. Ct. 96 , 98 (1980). The plaintiff contends that this is the proper case for this court to take up the question left unanswered in Alholm v. Wareham, 371 Mass. 621 , 625 n.3 (1976), viz., whether, as a matter of common law, a municipality is liable for the creation of a

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public nuisance that causes personal injury to an individual. We do not, however, reach that question because the plaintiff has stated a cause of action that is cognizable under G. L. c. 229, Section 1, and G. L. c. 84, Section 15, rather than one for common law nuisance.

General Laws c. 229, Section 1, imposes liability on a city if a death occurs as the result of a defect upon a way which, by law, the city is obliged to repair. [Note 3] The right of action against a city to recover damages for the death of a traveler on account of a defect in a public way is created and limited by statute. Cf. Whalen v. Worcester Elec. Light Co., 307 Mass. 169 , 174 (1940). See Gallant v. Worcester, 383 Mass. 707 , 712-713 (1981) (G. L. c. 84, Section 15, imposing liability for injury caused by defect on public way and G. L. c. 229, Section 1, imposing liability for death caused by same, are in pari materia); Hurlburt v. Great Barrington, 300 Mass. 524 , 526 (1938). This court has defined a defect as anything in the condition or state of the roadway which renders it unsafe or inconvenient for ordinary travel. See, e.g., Clohecy v. Haverhill, 299 Mass. 378 , 379 (1938); Barber v. Roxbury, 11 Allen 318 , 320 (1865). [Note 4] The plaintiff's complaint avers

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that her intestate, while traveling upon a public way in the exercise of ordinary care, struck a chain that the municipality, through its agent or servant, negligently stretched across the roadway. The plaintiff's intestate was thus a traveler, injured on account of the breach by the city of its statutory duty to maintain its public ways free from defects. See Hurlburt v. Great Barrington, supra. Cf. Whalen, supra. The complaint is one within the scope of G. L. c. 229, Section 1, [Note 5] and G. L. c. 84, Section 15.

The exclusive remedy for a claim of personal injury or property damage against governmental entities responsible for defects in a way is G. L. c. 84, Section 15. Whalen, supra at 175. See Hurlburt v. Great Barrington, supra (liability of town to compensate person injured because of defect in highway is solely statutory). If, however, a death results from a defect in a public way (prior to the enactment of G. L. c. 258, as appearing in St. 1978, c. 512, Section 15), G. L. c. 229, Section 1, was the exclusive remedy against a municipality. Whalen, supra at 175 (no recovery against city outside of statute for traveler injured on public way); Gallant, supra at 712-714. "An elaborate and comprehensive statutory system has been established fully and completely dealing with the subject matter [of defects in public ways]. It was intended to be an exclusive remedy. The legislative intent cannot be thwarted by calling the defect a nuisance . . . [and] seeking to recover damages far in excess of those fixed by the statute." Whalen, supra at 175.

The plaintiff has not pointed to any case where a traveler has recovered damages from a municipality based on a "public nuisance" in a roadway. To the contrary, "[o]bjects resting upon the surface of a properly wrought way, if of a nature to obstruct travel . . . make the way defective." Bowman v. Newburyport, 310 Mass. 478 , 481 (1941). Thus,

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when a branch breaks off a tree and falls onto the highway injuring a traveler, the remedy is provided by statute. See Miles v. Commonwealth, 288 Mass. 243 , 244 (1934); Valvoline Oil Co. v. Winthrop, 235 Mass. 515 , 520 (1920). Similarly, a wire stretched across the road in such a way as permanently to obstruct travel is a defect and the injured traveler has a statutory remedy. See Hayes v. Hyde Park, 153 Mass. 514 , 515 (1891). The plaintiff cannot avert the statutory limit on the recovery of damages against a municipality for defects in the roadway applicable at the time her cause of action accrued, by framing her complaint in terms of common law nuisance. Whalen, supra at 175.

Accordingly, the judgment of the Superior Court is reversed, and the case is remanded to the Superior Court for further proceedings not inconsistent with this opinion. See Jones v. Wayland, 380 Mass. 110 , 114-115 (1980).

So ordered.

FOOTNOTES

[Note 1] Because we do not reinstate the vacated jury verdict, we need not discuss issues raised by the defendant's cross appeal.

[Note 2] The city argues on appeal that the street on which the plaintiff's intestate was injured was part of a park rather than a public way. The city also claims error in the jury instructions on this issue. There was evidence from which the jury could have found, as instructed, that the way, although never formally accepted as a public way, was used by the public as a public highway. See Sullivan v. Worcester, 232 Mass. 111 (1919).

The city filed requests for instructions to the jury, including a particular instruction on the definition of public way. After the judge instructed the jury, the defendant's attorney stated, "I object to the instruction on public way." This objection was inadequate to save the defendant's appellate rights on the issue because of the failure to state "distinctly . . . the grounds of his objection." See Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). The defendant cannot "assume that those grounds are apparent, either from the objection itself or from prior conversation with the court." Miller v. Boston & Me. Corp., 8 Mass. App. Ct. 770 , 773 (1979). See Narkin v. Springfield, 5 Mass. App. Ct. 489 , 491 (1977). Nor do we find the instruction given to be inadequate.

[Note 3] The plaintiff, having alleged conscious suffering, may also have a claim under G. L. c. 84, Section 15. See Bowes v. Boston, 155 Mass. 344 , 349-350 (1892) (interpreting Pub. Sts. c. 52, Section 18).

[Note 4] In Barber v. Roxbury, 11 Allen 318 (1865), the court stated, inter alia, that a defect "may consist . . . of a barrier fixed or stretched across the way, though not touching the soil of the highway." Id. at 320. The court held, however, that a rope stretched across the highway was not a defect because it was not attached to points "within the limits of the highway," and did not obstruct public travel until workmen "engaged in removing the stone raised the rope gradually by turning the crank to which it was attached, so as to lift the rope from the ground across the travelled space and thence up out of the way of carriages or travellers; and the rope was in the act of being so raised when it struck the plaintiff's carriage and injured the female plaintiff." Id. at 321. The Barber case is clearly distinguishable on its facts; here, the chain was attached to posts wholly within the limits of the way. Compare the facts of Barber with those in Hayes v. Hyde Park, 153 Mass. 514 (1891) (telephone wire which came down across a way resembled a barrier fixed or stretched across the way and hence was a defect). Vaughan v. Commonwealth, 377 Mass. 914 (1979), is distinguishable on the facts also (wire across road in State reservation is not a defect in a way, as road was not a State highway).

[Note 5] If G. L. c. 258 were applicable to the instant tort claim against the municipality, the wrongful death statute, G. L. c. 229, Section 2, would be controlling. See Gallant v. Worcester, 383 Mass. 707 , 712-713 (1981) (limited liability provisions of G. L. c. 229, Section 1, impliedly repealed by G. L. c. 258).