Opinion
14-P-934
03-13-2015
MICHAEL L. SULLIVAN v. CITY OF HOLYOKE & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the dismissal of Count I of his complaint, which was asserted against the city of Holyoke (Holyoke). Judgment entered after the judge allowed Holyoke's motion for summary judgment. The plaintiff's motion for reconsideration of that ruling was denied. We reverse the entry of summary judgment.
The basis for the judge's ruling was that the plaintiff had failed both to send the required pre-suit statutory notice under G. L. c. 84, § 18, and to plead in his complaint that he had done so. In fact, Holyoke's own statement of undisputed facts demonstrated that "[i]n a letter dated July 19, 2010, the Plaintiff served upon [Holyoke] a notice pursuant to M. G. L. c. 84, § 15." Thus, it was error to allow summary judgment on the theory that the plaintiff had failed to send the required notice.
Neither party challenges the judge's determination that the only cause of action stated by the complaint arises under G. L. c. 84, not G. L. c. 258. As has previously been stated, "[t]he reference to G. L. c. 258 in the complaint does not preclude relief on other legal theories." Gallant v. Worcester, 383 Mass. 707, 709 (1981). "While count one of the complaint does not present a detailed factual description of the cause of the plaintiff's injuries, it makes out the substance of a claim under G. L. c. 84, § 15. The fact that the plaintiff does not use the language of § 15 and relies on general allegations of 'negligence and carelessness' is of no consequence." Trioli v. Sudbury, 15 Mass. App. Ct. 394, 397 (1983). Although there is no challenge here to the judge's determination that the complaint sufficed to state a claim under G. L. c. 84, that does not mean that the claim will succeed or is immune from other defenses.
What remains, therefore, is whether Holyoke was entitled to summary judgment where notice was given, but not pleaded. We have found no authority for this proposition. There is no statutory requirement that notice be pleaded; the statute requires only that notice be given. G. L. c. 84, § 18. Paddock v. Brookline, 347 Mass. 230, 231-232 (1964), upon which Holyoke and the judge relied, is not on all fours. Unlike here, the plaintiff in Paddock failed to give the required notice.
Accordingly, the entry of summary judgment with respect to Count I of the complaint is reversed.
So ordered.
By the Court (Fecteau, Wolohojian & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 13, 2015.