GARY D. FEARON, executor, [Note 1] vs. COMMONWEALTH.

WILKINS, J. The plaintiff's action was dismissed on the defendant Commonwealth's motion for summary judgment

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because no timely presentment of the plaintiff's claim had been made as required by G. L. c. 258, Section 4. We transferred the plaintiff's appeal to this court. We agree with the basis of the ruling made by the motion judge, but leave open the possibility that the plaintiff may be able to allege a claim not subject to the presentment requirement of G. L. c. 258, Section 4.

The underlying facts appear in the complaint. On April 10, 1980, Florence L. Fearon, the plaintiff's testate, was a passenger in a motor vehicle owned by her and operated by Joseph R. Drummond. He was operating the vehicle on property allegedly owned by the Commonwealth and containing a ramp to a creek by which the public could launch and recover marine recreational vehicles. As a result of Drummond's wilful, wanton, and reckless conduct, the vehicle entered the creek, and the plaintiff's testate was drowned. The complaint alleged against the Commonwealth that the ramp was not properly marked and no adequate warning of the ramp was given.

This action was commenced on May 11, 1981. The plaintiff had been appointed executor of the estate of Florence L. Fearon on April 29, 1981. In support of its motion for summary judgment, the Commonwealth filed an affidavit of the Secretary of Environmental Affairs, dated April 1, 1983, in which he stated that the records of his office showed no written presentment of a claim pursuant to G. L. c. 258, Section 4, from the plaintiff, or any one on his behalf, for damages resulting from the death of Florence L. Fearon in an accident which occurred on April 10, 1980. Counsel for the plaintiff filed an affidavit setting forth the substance of communications with representatives of the Attorney General's office following commencement of the action. [Note 2] As indicated earlier, a Superior

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Court judge allowed the Commonwealth's motion for summary judgment and dismissed the action on the ground that the plaintiff had not made timely presentment of his claim as required by the Massachusetts Tort Claims Act (G. L. c. 258, Section 4).

1. The plaintiff concedes that he made no presentment of his claim to the appropriate executive officer within two years of his decedent's death, the date on which the cause of action arose. Section 4 of G. L. c. 258 provides that no civil action shall be instituted against a public employer unless such a presentment has been made. In Weaver v. Commonwealth, 387 Mass. 43 (1982), we dealt with the failure of the administratrix of an estate to make a proper presentment within two years of the date the cause of action arose. The administratrix argued that under the tolling provisions of G. L. c. 260, Section 10, the presentment requirement was satisfied by a second presentment made more than two years after the cause of action arose but well within two years of her giving her bond as administratrix. See G. L. c. 260, Section 10, concerning the effect of the death of a person on the operation of statutes of limitation. We held in the Weaver case that, where the action against the Commonwealth had no common law basis and could be maintained only under the Massachusetts Tort Claims Act (G. L. c. 258), the tolling provisions of G. L. c. 260, Section 10, had no application. Id. at 50.

As in the Weaver case, the claim asserted against the Commonwealth here has no common law basis. The plaintiff cites no case in which the Commonwealth (as opposed to a municipality) was held liable at common law in circumstances falling within even an expansive view of the allegations of the complaint in this case. The immunity of the Commonwealth at common law in this case is clear, even if we were to conclude that the alleged errors of the Commonwealth were the maintenance of a public nuisance or that they occurred in a proprietary or commercial endeavor. See Green v. Commonwealth, 13 Mass. App. Ct. 524, 529 (1982). The time for presentment in this case was not tolled by application of G. L. c. 260, Section 10.

We add that we are not inclined to perpetuate the suggestion in the Weaver case that the two-year presentment requirement

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might be tolled if a claim against a public employer has a common law origin. Section 10 of G. L. c. 260 concerns the commencement of actions but says nothing about tolling any requirement for timely notice or presentment of claims. Nor does G. L. c. 258, Section 4, which provides an exclusive remedy for tort claims against public employers, preserve by its terms a distinction between claims that were actionable before the enactment of the Massachusetts Tort Claims Act and those that were not. See Weaver v. Commonwealth, 387 Mass. 43, 48-49 (1982). Unless exempted from the requirements of G. L. c. 258 by statute (see St. 1978, c. 512, Section 18), we believe all actions based on such claims should be subject to the presentment requirement as stated in Section 4. The effect of G. L. c. 260, Section 10, on the tolling of the time within which such an action must be commenced is a different matter. Compare George v. Saugus, ante 40, 44 (1985) (presentment requirement of G. L. c. 258, Section 4, not tolled by minority of plaintiff), with Hernandez v. Boston, ante 45, 47 (1985) (G. L. c. 260, Section 7, applies to toll the time within which an action must be commenced under G. L. c. 258 for injury to a minor).

2. The plaintiff argues that the Commonwealth should be estopped to deny that timely presentment was made. The facts do not warrant such a conclusion. It is sufficient to note that all that happened in this respect within two years of the date on which the cause of action allegedly arose was that representatives of the Attorney General's office twice advised the plaintiff's counsel that the Attorney General's office would investigate the claim and file an answer. No reasonable reliance on later communications could have had an effect on the plaintiff's failure to make a timely presentment. See George v. Saugus, ante at 44. We do not imply that any communication between the Attorney General's office and the plaintiff's counsel occurring more than two years after the death of the plaintiff's testate (see n.2 above) would have constituted an estoppel if it had occurred earlier. The circumstances of this case are very different from those in Vasys v. Metropolitan Dist. Comm'n, 387 Mass. 51 (1982), and Moran v. Mashpee, 17 Mass. App. Ct. 679 (1984).

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3. The plaintiff argues that the complaint could be read as alleging that the locus of the accident was a "State highway" and that the claim involved a defect in the public way. If so, the notice provisions of G. L. c. 81, Section 18, apply and the presentment requirements of G. L. c. 258, Section 4, do not. See St. 1978, c. 512, Section 18, providing that G. L. c. 81, Section 18, was not superseded or repealed by the Tort Claims Act. See also Gallant v. Worcester, 383 Mass. 707, 711 (1981) (discussing the effect of the saving clause of St. 1978, c. 512, Section 18). The plaintiff does not state in his brief that notice was given as required by G. L. c. 81, Section 18.

The Commonwealth's only response to this claim in its brief is that the plaintiff cannot recover unless he proves that the defect in the way was the sole cause of the injuries, citing Trioli v. Sudbury, 15 Mass. App. Ct. 394, 398 (1983), and that the wilful, wanton, and reckless conduct of the driver of the vehicle, as alleged in the complaint, shows that any defect was not the sole cause of the injuries. Although the facts might prove the Commonwealth to be correct, this issue was not presented by affidavits or otherwise on summary judgment below. [Note 3]

From all that appears in the record, including the plaintiff's brief in opposition to the Commonwealth's motion for summary judgment and the judge's memorandum of decision on the Commonwealth's motion, the question whether the plaintiff had a claim under G. L. c. 81, Section 18, was not presented below. The Commonwealth, however, has not argued here, as it might have, that it is too late for the plaintiff to raise the point. See John B. Deary, Inc. v. Crane, 4 Mass. App. Ct. 719 (1976).

We conclude that a rescript should issue stating that summary judgment for the Commonwealth is affirmed, unless within thirty days of the filing of the rescript in the office of the clerk of the Superior Court the plaintiff shall file a motion to amend

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his complaint to state only a claim under G. L. c. 81, Section 18, in which he alleges in particular detail that sufficient notice under G. L. c. 84, Section 18, was given within thirty days after his appointment as executor, as required by G. L. c. 84, Section 19.

So ordered.