MARY T. RAM vs. TOWN OF CHARLTON & another. [Note 1]

GREANEY, J. The plaintiff brought this action against the defendants, the town of Charlton (town) and the Commonwealth, seeking to recover damages for injuries sustained by her in a one-car accident on a road in the town. Summary judgment was granted on motions filed by the defendants. Mass. R. Civ. P. 56 (b), 365 Mass. 824 (1974). The judges passing on the motions ruled that the plaintiff's claims fell within the statutes governing actions which allege injuries caused by defects in public ways, G. L. c. 81, Section 18 (1988 ed.), and G. L. c. 84, Section 15 (1988 ed.), and that she had failed to give the notice required as a condition precedent to maintaining such actions. Judgments entered dismissing the plaintiff's claims, and she appealed. We transferred the appeal to this court on our own motion and now affirm the judgments.

The material facts are undisputed. We summarize those facts and the procedural background of the case. At approximately 11 P.M., on November 18, 1983, the plaintiff was driving south on Route 31, Dresser Hill Road, a public way in the town. She was traveling at forty miles per hour, the posted speed limit, when she reached a sharp curve. She was unable to negotiate the curve, went off the road, and crashed into a stone wall, and then struck a tree. The plaintiff suffered severe injuries.

There had been numerous reported accidents on this stretch of Route 31 prior to the plaintiff's accident. Sometime before the accident, the county engineers had surveyed the road and made plans to widen and straighten it, but the plans had not been carried out. Two days before the accident, one of the town's selectmen wrote to the Governor,

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describing the dangers of the road and the many accidents which had taken place, and requested funds for reconstruction. Prior to the plaintiff's accident, nothing had been done to correct the road's dangerous condition.

The plaintiff did not provide written notice to agents of the town or the Commonwealth within thirty days of the incident. On November 14, 1986, almost three years after her accident, the plaintiff filed a complaint in the Superior Court, under G. L. c. 258 (1988 ed.), the Massachusetts Tort Claims Act, naming the town and the Commonwealth as defendants, and alleging that negligent design, construction, and maintenance of Route 31 had caused the accident. The plaintiff's complaint asserted "numerous defects in the public way including improper grading, lighting and a road surface and line of travel inappropriate to the topography of the land at that location." In addition, she asserted that there were no visible white lines marking the edge of the road, no guardrails, inappropriately posted and set speed limits, and no signs warning motorists of the dangers of the curve. The complaint alleged also that the defendants knew, or reasonably should have known, of the road's dangerous condition, and that the defendants had expressly and impliedly warranted to motorists that the road was safe for its intended purpose. On November 17, 1986, the plaintiff filed an amended complaint which, as far as material here, reasserted similar claims and allegations against the defendants.

After the completion of discovery, the town filed a motion for summary judgment. A judge of the Superior Court granted the town's motion on the ground that the plaintiff's exclusive remedy against the town was provided by G. L. c. 84, Section 15, [Note 2] and that her failure to give the notice required

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by G. L. c. 84, Section 18, [Note 3] barred her action. The Commonwealth thereafter filed a similar motion for summary judgment asserting that the claims against it were barred by G. L. c. 81, Section 18 (1988 ed.). This motion was granted by another judge of the Superior Court on the ground that G. L. c. 81, Section 18 (1988 ed.), [Note 4] provided the plaintiff's exclusive remedy against the Commonwealth, and she had failed to comply with the notice provisions of that statute.

On appeal, the plaintiff argues that G. L. c. 84, Sections 15 and 18, and G. L. c. 81, Section 18, are not her exclusive remedies, because the alleged negligent design of the road is not a "defect" as that term is used in the statutes. She maintains that her complaint stated appropriate causes of action against both defendants under the Massachusetts Tort Claims Act,

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G. L. c. 258. [Note 5] She also argues that, even if G. L. c. 84, Sections 15 and 18, and G. L. c. 81, Section 18, provide exclusive remedies, she was not required to give notice because agents of the defendants were aware of the dangerous condition. If these arguments are rejected, the plaintiff argues that the provisions for notice in the statutes are unconstitutional. We conclude that summary judgment was properly entered for the defendants on these issues and that other arguments made by the plaintiff need not be considered.

1. This court has consistently held that G. L. c. 84, Section 15, provides the sole remedy against a municipality for personal injuries or property damage resulting from a defect or want of repair "in or upon a way." See Huff v. Holyoke, 386 Mass. 582, 585 (1982); Gallant v. Worcester, 383 Mass. 707, 711-712 (1981); Whalen v. Worcester Elec. Light Co., 307 Mass. 169, 174-175 (1940). See also Trioli v. Sudbury, 15 Mass. App. Ct. 394, 396 (1983). While this court has never expressly held that G. L. c. 81, Section 18, provides the sole remedy against the Commonwealth for injuries caused by "defects" on State highways, our decisions have assumed that such is the case. See Kromhout v. Commonwealth, 398 Mass. 687, 689-692 (1986); Fearon v. Commonwealth, 394 Mass. 50, 54 (1985). When the Massachusetts Tort Claims Act was enacted in 1978, the Legislature took special care to provide that its provisions were not to be construed as superseding or repealing Section 18 of G. L. c. 81, and Sections 15-25 of G. L. c. 84. See St. 1978, c. 512, Section 18 ("The provisions of this act . . . shall not be construed to supersede or repeal section eighteen of chapter eighty-one and sections fifteen to twenty-five, inclusive, of chapter eighty-four of the General Laws").

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It is obvious that the Legislature intended that these statutes provide exclusive remedies for actions against both municipalities and the Commonwealth for injuries caused by defects in ways under their control. The language in St. 1978, c. 512, Section 18, permits no other reasonable conclusion. See Caine v. Commonwealth, 368 Mass. 815, 816 (1975). We now hold that G. L. c. 81, Section 18, like G. L. c. 84, Section 15, is an exclusive remedy. If the plaintiff's action falls under these statutes, she has no other basis for suit.

The plaintiff maintains that the statutes do not apply because the allegedly negligent design of the road, and the negligent failure to correct its problems, do not state "defects" under these statutes, but instead constitute the basis for claims under G. L. c. 258. She argues that the word "defect" contemplates holes, bumps, ruts, and the like, rather than negligent design problems which might render a road inherently dangerous. We disagree.

"[D]efect," as used in G. L. c. 84, has been defined as "anything in the state or condition of the way that renders it unsafe or inconvenient for ordinary travel" (emphasis added). Gallant v. Worcester, supra at 711. See Whittaker v. Brookline, 318 Mass. 19, 25 (1945); Whalen v. Worcester Elec. Light Co., supra at 174; Gregoire v. Lowell, 253 Mass. 119, 121 (1925). See also E. Martin & E.F. Hennessey, Automobile Law and Practice Sections 611-622 (1967 & Supp. 1987). General Laws c. 81, Section 18, incorporates this definition of "defect" by its express reference to c. 84. As can readily be seen, this definition is broad in scope and on its face encompasses claims like those made by the plaintiff. To avoid the obvious result that her claims come within the definition, the plaintiff refers to, and relies upon, a Nineteenth-Century decision for the proposition that negligent design of a road should not be considered a "defect" under the statutes. The court in Smith v. Wakefield, 105 Mass. 473 (1870), construing Gen. Sts. c. 44, Section 22 (1860), an earlier version of G. L. c. 84, Section 15, was confronted with a situation somewhat similar to the one at hand. The alleged problem was a "sudden curve in the road as it emerged from under the railroad

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bridge, forcing the travel inconveniently near the wall." Id. at 474. The plaintiff's team of horses was frightened by the curve, throwing the plaintiff down and running over him. The court held that the sudden curve was "an error in the location, and not a defect in the construction or maintenance of the road for which the town is liable." Id. The plaintiff argues that this language establishes that the term "defect" does not include problems with roads attributable to their negligent design. [Note 6]

We discern little useful precedential value in Smith. The decision has never been cited in any later Massachusetts opinion, and its rationale was based more on the allocation of powers and responsibilities between governmental agencies than upon a construction of the term "defect." [Note 7] Moreover, the plaintiff's reading of Smith is contradicted by later case law, which will be discussed below. To the extent that the Smith decision may conflict with later precedent on the point, we do not follow it.

In Gallant v. Worcester, 383 Mass. 707 (1981), the plaintiff's husband was struck and killed by a motor vehicle as he walked across a public way. The plaintiff brought an action against the city alleging "negligent design, construction, and maintenance" of the public way. Id. at 708. She also alleged

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that the city had notice of the unsafe and dangerous condition, or should have had due notice through reasonable inspection. Id. at 711. The plaintiff contended that her complaint stated a claim under G. L. c. 258, and did not fall within G. L. c. 84, Section 15, because negligent design, construction, and maintenance of public ways are not related to the actual state or condition of the roads. The contention was rejected, and it was held that the plaintiff's complaint, to the extent that she alleged injury resulting from the accident, stated a cause of action that fell within G. L. c. 84, Section 15, and was properly dismissed because the plaintiff had failed to comply with the notice requirements under Section 18. Id. at 712. Similarly, the Appeals Court has held that a complaint alleging that an accident was caused by a town's failure to erect a stop sign at an intersection stated a claim which fell within G. L. c. 84, Section 15, which provides the exclusive remedy for injuries sustained as a result of a defect in a public way, and, as a result, the plaintiff could not seek recovery under G. L. c. 258 on the theory of negligence. Trioli v. Sudbury, 15 Mass. App. Ct. 394, 396-397 (1983). In a recent case, this court has assumed that allegations of negligent design, construction, and maintenance of roads state claims of "defects" under G. L. c. 81, Section 18, the statute allowing recovery for injuries caused by defects in State highways. See Kromhout v. Commonwealth, 398 Mass. 687, 689-691 (1986).

We perceive little appreciable distinction between the cases just discussed and the present case. [Note 8] An allegation of failure to correct an allegedly negligently designed road asserts the existence of a "defect" under the public way statutes

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because the road's layout is an aspect of its state or condition that renders it unsafe or inconvenient for ordinary travel. The word "defect" thus includes not only physical impairments to the road itself which can cause immediate danger to a traveler, but also possible conceptual problems with the road's design which may require extra caution by those using it. The exclusive remedy for any of these problems falls under G. L. c. 84, Section 15, and G. L. c. 81, Section 18, and a plaintiff may not escape the requirements of these statutes by framing a complaint in terms of negligence principles which seek to invoke the provisions of G. L. c. 258. See Gallant v. Worcester, supra at 709; Trioli v. Sudbury, supraat 397. The plaintiff in this case is barred from recovery because she failed to comply with the written notice requirement under the statutes. See G. L. c. 81, Section 18; G. L. c. 84, Section 18; Gallant v. Worcester, supra; Trioli v. Sudbury, supra at 397-398.

We reject the plaintiff's alternate argument that it was unnecessary for her to comply with the written notice requirements because the defendants were aware of the dangerous condition of the road. An unequivocal requirement under both statutes to the maintenance of any action is that the town or the Commonwealth "had or, by the exercise of proper care and diligence, might have had reasonable notice of the defect or want of repair." G. L. c. 84, Section 15. This requirement coexists with the requirement that written notice of an injury be given to the town or Commonwealth within thirty days of an accident. G. L. c. 84, Sections 18 and 19; G. L. c. 81, Section 18. Thus, in addition to actual or constructive notice of the dangerous state of the road, timely written notice of the injury is a clear condition precedent to the existence of a cause of action, and no other form of notice may be substituted. See Paddock v. Brookline, 347 Mass. 230, 231-232 (1964); Mooney v. Salem, 130 Mass. 402, 403 (1881).

2. We also reject the plaintiff's arguments pertaining to the constitutionality of the notice provisions.

a. The plaintiff first contends that the notice requirement violates equal protection of the laws, as guaranteed by the United States and Massachusetts Constitutions, because it

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divides tortfeasors into two classes -- private tortfeasors to whom no notice need be provided, and governmental tortfeasors to whom notice must be given. General Laws c. 84, Section 15, does not create such a distinction. Both private parties and governmental entities are entitled to notice within thirty days when a defect in a way under their control is alleged under G. L. c. 84, Section 15. See Murphy v. Boston & Me. R.R., 332 Mass. 123 (1954); Dobbins v. West End St. Ry., 168 Mass. 556 (1897). Likewise, because G. L. c. 81, Section 18, applies only to State highways, it creates no distinction. The only real differentiation established by the statutes is between plaintiffs who allege injuries resulting from a defect in a public way and all other plaintiffs. Such a classification obviously is not a violation of equal protection principles. See Hearn v. Massachusetts Bay Transp. Auth., 389 Mass. 404, 406 (1983); Paro v. Longwood Hosp., 373 Mass. 645, 651 (1977).

b. Nor does the notice requirement deprive the plaintiff of property without due process of law as guaranteed by the Federal and State Constitutions. Before the statutes were enacted, all claims against government entities for injuries caused by defects in public ways were barred by the doctrine of sovereign immunity. When the Legislature waived this immunity, by enacting statutes allowing recovery for defects in public ways, and allowed the Commonwealth and its political subdivisions to be sued in certain instances in the courts of the Commonwealth, it established limitations and conditions on that waiver. See Morris v. Massachusetts Maritime Academy, ante 179 (1991) (admiralty claims); Broadhurst v. Director of the Div. of Employment Sec., 373 Mass. 720, 722 (1977) (costs). See also Smith v. Commonwealth, 347 Mass. 453, 455-456 (1964); Whalen v. Worcester Elec. Light Co., 307 Mass. 169, 174 (1940).

The thirty-day notice requirement was one such limitation. It is rationally related to a permissible legislative objective. Klein v. Catalano, 386 Mass. 701, 712 (1982). The Legislature could have decided that the notice requirement is necessary to safeguard public defendants against frivolous claims

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and excessive liability, see Trioli v. Sudbury, supra at 396, by allowing such defendants to investigate and remedy any defects expeditiously, see Canterbury v. Boston, 141 Mass. 215, 218 (1886), and by allowing them to evaluate claims and to determine at an early stage whether liability could be imposed against them. See Murphy v. Boston & Me. R.R., supra at 123-124. [Note 9]

Summary judgment was properly granted for the defendants.

Judgments affirmed.