SARROUF v. CITY OF BOSTON (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This case is back before us after the Supreme Judicial Court, acting on the plaintiffs' petition for further appellate review, remanded the case “for further action consistent with [its] opinion” in Meyer v. Veolia Energy N. Am., 482 Mass. 208 (2019). In Meyer, the court overruled a series of our decisions, including the decision in the instant case, Sarrouf v. Boston, 94 Mass. App. Ct. 901, 901 (2019), as well as Filepp v. Boston Gas Co., 85 Mass. App. Ct. 901, 901 (2014), in which we held that suits against private corporations based on defects that they created in public roads were properly dismissed for failure to give notice to the companies under the road defect statute, G. L. c. 84, § 15, and the notice statute, G. L. c. 84, § 18. See Meyer, supra at 223 n.15. Meyer holds that the word “person” as used in the statutes does not refer to private parties and, therefore, while the statutes are the exclusive remedy for claims against governmental parties, claims against private parties responsible for road defects sound in tort and are not subject to the road defect statute or the thirty-day notice requirement in G. L. c. 84, § 18. Id. at 218-225.

In the present case, the plaintiffs alleged tort claims against the defendant Boston Gas Company (Boston Gas) for negligence and loss of consortium. At trial, at the close of the plaintiffs' case, Boston Gas moved for a directed verdict based on the plaintiffs' failure to comply with the thirty-day notice provision of G. L. c. 84, § 18. The trial judge allowed the motion, and judgment entered against the plaintiffs on their claims against Boston Gas. Under Meyer, the plaintiffs were not required to comply with the thirty-day notice requirement; their claims against Boston Gas should not have been dismissed on this ground.

Accordingly, the allowance of Boston Gas's motion for a directed verdict is reversed, the judgment in favor of Boston Gas is vacated, and the case is remanded to the Superior Court for further proceedings on the plaintiffs' claims against Boston Gas.

So ordered.

Reversed in part; vacated in part and remanded