January v. Town of Marshfield

Full title: Courtney January vs. Town of Marshfield

Court: Massachusetts Appellate Division, Southern District

Date published: Nov 6, 1995

1995 Mass. App. Div. 145 (Mass. Dist. Ct. App. 1995)

Opinion

November 6, 1995.

Present: Martin, P.J., Welsh Aguiar, JJ.

Negligence, Action against town; Notice; Contributory fault. Practice, Civil, Dist./Mun. Cts. R.A.D.A., Rule 8A.

Opinion reversing finding for plaintiff and ordering judgment for defendant. Action heard in the Hingham Division by Lebherz, J.

Thomas C. McDonough for the plaintiff.

Regina M. Gilgun for the defendant.

Martin, J.

Pursuant to Dist./Mun. Cts. R. A. D. A., Rule 8A, the defendant hereby appeals the decision of the district court judge awarding the plaintiff $2,094.10 in damages; we reverse.

The plaintiff brought an action against the defendant, Town of Marshfield, under G.L.c. 84, § 15 alleging a defect in a way owned and controlled by the defendant town. The Court found total damages for the plaintiff in the amount of $2,326 and found the plaintiff to be 10% comparatively negligent assessing final damages of $2,094.10.

CONCLUSION

Recovery against the Town of Marshfield is barred because the Court found the plaintiff to be comparatively negligent. The Supreme Court of Massachusetts has held that a defendant Town cannot be liable to a plaintiff under c. 84 unless the injury suffered is solely caused by the municipality. Scholl v. New England Power Service Co., 340 Mass. 267 (1960); Carroll v. Lowell, 321 Mass. 98, 100 (1947); Hayes v. Hyde Park, 153 Mass. 5014, 515, 516 (1891); Tomasello v. Commonwealth 398 Mass. 284 (1986). `The sole cause rule is based not on principles of contributory fault but on causation."

A condition precedent to the bringing of the action against the municipality under G.L.c. 84, § 18, is the requirement that a notice be given within thirty days after the event. There is no evidence that such condition precedent was complied with. Paddock v. Town of Brookline, 197 N.E.2d 321 (1964), George v. City of Worcester, 326 Mass. 446 (1950); Dooling v. City of Malden, 258 Mass. 570 (1927); O'Connell v. City of Cambridge, 258 Mass. 203 (1927); Rankin v. Wordell McGuire Co. 254 Mass. 109 (1925); Miller v. Rosenthal, 258 Mass. 368, 369 (1927).

The defendant moved for a directed finding on notice grounds; the denial of which constituted reversible error.

The finding for the plaintiff is reversed and finding to enter on all counts for the defendant.