Massachusetts Appeals Court Affirms Dismissal of Negligence Claim Against Gas Company Due to Lack of Timely Notice

If you are hurt because of a slip and fall-type accident in or around Cape Cod, do you know how long you have to file a claim against the negligent party who caused the condition that led to your fall? You may think you know, but, chances are, you only know part of the answer to this important question.

Generally speaking, there is a three-year statute of limitations for personal injury and wrongful death claims in Massachusetts. However, there may be additional considerations that could shorten the effective time for taking legal action to a much shorter time – perhaps even a matter of days rather than a matter of years.

For example, for claims against governmental entities for injuries caused by a “defective way,” an injured person has just 30 days to filed a formal notice of claim (a precursor to a lawsuit filed in court) with the appropriate entity under Massachusetts Gen. Laws ch. 84, §§ 15, 18. If this formal notice is not given, the defendant will most likely be able to have the plaintiff’s lawsuit dismissed later on – even if the suit itself is filed within the general three-year statute of limitations.

Facts of the Case

A recent appellate case revolved around the claim of a woman who slipped and fell on a public way due to an alleged “uneven depression” on the roadway. She gave notice to the defendant city within 30 days, as required by Massachusetts law. However, 11 weeks later, the city sent a letter to the plaintiff informing her that the defendant gas company, not the city itself, was at fault. Thereafter, the plaintiff sent notice to the gas company, informing it of her claim. The plaintiff eventually filed a lawsuit against both the city and the gas company, averring that their negligence caused her injuries.

At trial, the gas company moved for a directed verdict based on the plaintiff’s failure to give it notice of her claim within 30 days as required by law. The trial court found that the gas company’s identity was readily ascertainable to the plaintiff and, thus, her failure to give notice to it within 30 days was fatal to her claim. She appealed.

The Appellate Court’s Decision

The court of appeals affirmed the trial court’s dismissal of the plaintiff’s case but did so on different grounds. Rather than simply agree with the lower tribunal that the plaintiff should have given notice to the gas company because its identity was readily ascertainable to her, the appellate court declined to read into the applicable statute any exception to the giving of timely notice based on the excuse that a particular party’s identity was not readily ascertainable within the set period. In so holding, the court noted that there was only one exception to the statute: if an injured person’s physical or mental incapacity made it impossible for him or her to give notice within the time required. (This exception might apply in a situation in which a plaintiff’s injuries were so severe as to cause him or her to be in a coma for several weeks after the accident.) In the appeals court’s opinion, the inclusion of this one, limited exception implied that Legislature intentionally refrained from creating additional exceptions.

It being undisputed that the plaintiff did not provide timely notice to the gas company, the court held that her case should be dismissed due to her failure to prove an essential element of her cause of action. While acknowledging the harsh result of such a strict interpretation of the statute at issue, the court placed the responsibility for changing matters with the legislature.

Get Legal Advice from a Cape Cod Injury Attorney

If you have been hurt on public property, you should speak to an attorney immediately. The experienced Cape Cod slip-and-fall attorneys at the Law Offices of John C. Manoog, III are here to help. Call us at 888-262-6664 to schedule an appointment. You make the call, and we’ll do the rest!

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