KAREN B. KARLIN vs. MASSACHUSETTS TURNPIKE AUTHORITY.

WILKINS, J. The plaintiff was seriously injured when the motor vehicle she was operating on June 11, 1979, on the Massachusetts Turnpike left the paved highway, struck a guardrail, and went down an embankment. She brought this action against the Massachusetts Turnpike Authority (Authority) alleging its negligence with respect to the guardrail. [Note 1] She has stated in an affidavit that, due to her injuries, she is unable to recall how the accident happened.

A judge of the Superior Court allowed the Authority's motion for summary judgment and immediate entry of judgment in favor of the Authority. The judge filed no memorandum in explanation of his action. The Authority argued below, and contends here, that it is immune from liability in the circumstances and that, even if it were not immune and was negligent, it cannot be liable because its negligence was not the sole cause of the injuries. We allowed the plaintiff's application for direct appellate review and now reverse the judgment for the Authority and remand the case for further proceedings.

The Authority is not entitled to governmental or sovereign immunity. The Legislature expressly excluded the Authority from the Massachusetts Tort Claims Act by defining a "public employer" as not including the Authority, the Massachusetts Bay Transportation Authority, the Massachusetts Port Authority, "or any other independent body politic and corporate." G. L. c. 258, Section 1 (1984 ed.). We have never indicated that the Authority has the protection of sovereign or governmental immunity. As an independent entity, supported by its own nontax revenue sources and without the Commonwealth's

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credit pledged on its behalf, the Authority's circumstances do not present the need for the protection of public funds which underlay the reason for governmental immunity. See Commonwealth v. Toomey, 350 Mass. 345, 348 n.3 (1966) ("The Authority does not enjoy sovereign immunity" [dictum]). Cf. Morrison-Knudsen Co. v. Massachusetts Bay Transp. Auth., 573 F. Supp. 698, 700 (D. Idaho 1983) (MBTA is not an arm of the Commonwealth immune from suit under the Eleventh Amendment to the United States Constitution). [Note 2]

The Authority's liability in this case turns on our construction of St. 1952, c. 354, Section 15, as amended, set forth in relevant part in the margin, [Note 3] which says that the Authority shall be liable to a person injured "by reason of a defect or want of repair" in the turnpike "to the same extent as though the turnpike were a way within the meaning of [G. L. c. 84, Section 15]." Section 15 makes no mention of inadequate guardrails, but G. L. c. 84, Section 15 [1984 ed.), to which Section 15 refers, does. Section 15 of G. L. c. 84, which is set forth in full in the margin, [Note 4] imposes

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liability "by reason of a defect or a want of repair or a want of a sufficient railing in or upon a way" negligently caused by "the county, city, town or person by law obliged to repair the same" if there was reasonable notice of the defect. By G. L. c. 81, Section 18 (1984 ed.), the Commonwealth is specifically exempted from liability for want of a railing on any State highway.

Section 15 analogizes the Authority's responsibility to that of a person or political subdivision obliged to repair a way under G. L. c. 84, Section 15, and not to the Commonwealth's responsibility under G. L. c. 81, Section 18. The Legislature could have easily granted the Authority exemption from liability for inadequate or defective guardrails and from liability for defects not on the traveled roadway by reference to G. L. c. 81, Section 18, rather than (as it did) to G. L. c. 84, Section 15.

We are disinclined to attribute to the absence of a reference to guardrails in Section 15 a legislative intent to immunize the Authority from liability for negligence in maintaining or providing guardrails. We see no reason why the Legislature would have intended a revenue producing entity like the Authority to be exempt from such liability and counties, cities, and towns not exempt. [Note 5] The words "defect" and "want of a sufficient railing" are not always mutually exclusive. Section 18 of G. L. c. 81 treats "want of a railing" as a form of highway defect. We think Section 15 should be read to do the same.

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We conclude that by statute the Authority is liable for want of a sufficient railing. Were we to conclude otherwise, we would have to consider whether common law liability would be imposed in the circumstances on a governmental entity not protected by G. L. c. 258 or by any other statute. See Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 284-285 (1985) (on common law principles, governmental entity not liable for intentional torts of its agents).

The Authority argues further that, even if it may be liable for negligence with respect to guardrails along the turnpike, summary judgment was properly entered in its favor because its negligence, if any, was not the sole cause of the plaintiff's injuries. Here the Authority relies on the principle that the Commonwealth, a county, or a municipality may be liable for a highway defect causing injury only if the governmental defendant's negligence was the sole cause of the injury. See Tomasello v. Commonwealth, 398 Mass. 284, 286 (1986), and cases cited. We conclude that the principle has no application to the Authority. Section 15 does not say that the Authority is liable for a highway defect to the extent another governmental unit would be liable. It states that the turnpike is to be treated as if it were a way within the meaning of certain sections of G. L. c. 84. One of these sections, G. L. c. 84, Section 15, the only one concerned with the extent of liability, makes a distinction between a person obliged to repair a way and certain governmental entities (counties and municipalities) so obliged. Persons are not entitled to rely on the sole cause rule as the Commonwealth, counties, and municipalities may. The question here is whether we should place the Authority in the category of those governmental units or in the category of a person.

If the Legislature had intended the Authority's liability to be coextensive with that of the Commonwealth, a county, a city, or a town, it could have said so. Logic would favor the abandonment of the sole cause rule in the Commonwealth (at least in cases in which the other party at fault is the plaintiff or in which the other party at fault, if a defendant, is judgment proof). As we noted in the Tomasello case, supra at 287, however,

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the Legislature accepted and preserved the sole cause rule in exempting defect-in-the-way statutes from the tort claims act. On the other hand, we see no logic in extending the sole cause rule from governmental units dependent on taxation for their revenue to a "person" such as the Authority, an entity not dependent on the public purse and capable of raising its own revenue from users of the turnpike. The better rule is that the Authority should be obliged, on the application of general tort principles, to compensate travelers on the turnpike for injuries caused by its negligence, using revenues raised from turnpike users generally. The Authority is in an excellent position to spread the risk among the users of the turnpike.

The judgment for the Authority is reversed, and the order allowing the Authority's motion for summary judgment is vacated.

So ordered.