Can an Injured Pedestrian Sue for Failure to Provide Safe Crossing? 
by Roger T. Manwaring

Suppose that a 17 year-old pedestrian, on his way to a shopping mall, is hit by a car while trying to cross a busy town road which borders the mall. Both the mall owners and the town know that pedestrians have to cross the road in order to reach the mall, but, at the time of the accident, there was no crosswalk in that location and at least one of the street lights installed in that area was not functioning. Nor had the town or the mall provided a police officer or crossing guard to facilitate pedestrian crossings. Promptly upon leaving the hospital (two months after the accident) the teenager sues both the town and the mall owner. Will he be compensated for his injuries?

The teenager claims that the town was negligent in : (1) failing to install a crosswalk; (3) failing properly maintain the street lights; and (3) failing to assign a police officer to direct traffic in the location where the accident occurred. He claims that the mall owner can be held liable for failure to provide a safe means of crossing the street, given that the owner must have been aware that many of its patrons had to do so in order to enter and exit the Mall. Perhaps surprisingly, some of these claims will likely fail as a matter of law, while the teenager’s recovery on other claims is severely limited by statute.

1. The claim against the town for failure to provide a crosswalk is barred by the road defects statute.

A claim against the town for failure to install a crosswalk will probably fail because the lack of a crosswalk is a road “defect” within the meaning of Massachusetts G.L. c. 84, §15 and the teenager did not provide the notice to the town which must precede an action under that statute. Usually, a claim against the Commonwealth or a municipality is brought under the Massachusetts Tort Claims Act (“MTCA”), Massachusetts G.L. c. 258, which waives state and local governments’ sovereign immunity, subject to important exceptions. However, Chapter 84, §15, is the exclusive remedy for injuries caused by road defects within the meaning of that statute. Ram v. Town of Charlton, 409 Mass. 481, 485-86 (1991), Trioli v. Town of Sudbury, 15 Mass. App. Ct. 394, 396 (1983). Thus, where the highway defect statute applies, not MTCA action can be pursued. 

Section 15 states: If a person sustains bodily injury or damage in his property by reason of a defect or a want of repair or a want of a sufficient railing in or upon a way, and such injury or damage might have been prevented, or such defect or want of repair or want of railing might have been remedied by reasonable care and diligence on the part of the county, city, town or person by law obliged to repair the same, he may, if such county, city, town or person had or, by the exercise of proper care and diligence, might have had reasonable notice of the defect or want of repair or want of a sufficient railing, recover damages therefor from such county, city, town … (Emphasis added). 

Section 18 of the statute requires notice of the injury: A person so injured shall, within thirty days thereafter, give to the county, city, town or person by law obliged to keep said way in repair, notice of the name and place of residence of the person injured, and the time, place and cause of said injury or damage;….(Emphasis added). 

Section 19, however, provides an exception to the 30 day notice requirement when the plaintiff is incapacitated:… If by reason of physical or mental incapacity it is impossible for the person injured to give the notice within the time required, he may give it within thirty days after such incapacity has been removed, and if he dies within said thirty days his executor or administrator may give the notice within thirty days after his appointment….(Emphasis added). 

This incapacity extension is available only when the plaintiff is mentally incompetent, and cannot be invoked based solely on physical injuries. In Clarke v. City of Worcester, 2008 WL 2345527, *3 (Mass. Super. 5/8/08), the Superior court explained:

The Supreme Judicial Court has defined “physical or mental incapacity” to mean an inability of the person injured to give the notice himself or through another which results from a loss of the faculties of the mind, or from a lack of power to use the mind because of the loss or impairment of the organs of the body. Evidence that a person is unable to move or write does not establish a physical or mental incapacity for the purposes of Section 19. Where there is no evidence of physical or mental incapacity of the sort sufficient to meet this statutory test, the court may determine the issue as a matter of law.

Clarke certainly describes some rather serious injuries that physically incapacitated her for weeks. However, nowhere does Clarke assert mental difficulties, unconsciousness, organ impairment, or other injuries that would establish a physical or mental incapacity under this standard.(Citations and internal quotation marks omitted). Because the teenager was physically injured but not mentally incompetent, he was not exempt from the 30 day notice requirement.

It is also established that the minority of the plaintiff does not toll the 30 day notice requirement. George v. Town of Saugus, 394 Mass. 40, 43 (1985), citing Madden v. City of Springfield, 131 Mass. 441, 442 (1881). 

Thus, the road defect statute would apply to the teenagers claims, and would bar them for lack of notice, if the failure to provide a crosswalk is a “defect” within the meaning of the statute. While the teenager will argue that a defect is limited to a hole or other imperfection in the road surface, or the lack of railings, Massachusetts courts apply the road defects statute much more broadly. In general, a “defect” is defined, to include not only physical perils on the road surface, but also design defects. In Ram v. Town of Charlton, 409 Mass. 481, 485-86 (1991), the Supreme Judicial Court stated: “[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” ***

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, § 15, and G.L. c. 81, § 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.

This definition strongly indicates that the absence of a crosswalk is a road defect covered by the statute. A number of cases have held or implied that defects in existing crosswalks are covered by the highway defect statute. Giles v. City of Boston, 346 Mass. 767 (1963); Hanson v. City of Worcester, 346 Mass. 51 (1963); Swenson v. City of Boston, 317 Mass. 295 (1944); Powers v. City of Worcester, 1992 WL 52839 (Mass. App. Div. 1991). Thus, it is reasonable to conclude that a design defect consisting of the absence of a crosswalk also would be a defect covered by the statute. This conclusion is supported by Trioli, in which the Appeals Court held that the absence of a stop sign was a road defect. 15 Mass. App. Ct. 394 (1983).

Because the failure to install a crosswalk is a design defect covered by the road defect statute, and because the teenager failed to give the 30 day notice, his claim against the town is barred.

Notably, even if the 30 day notice requirement were not an insurmountable impediment, another fatal flaw bars the teenagers c.84 claims. Unless the third party who drove the vehicle which hit the teenager was entirely blameless (not negligent at all), the sole cause rule would prevent recovery under c.84, §15. Under that rule, the Commonwealth or municipality is liable only if the injury was caused solely by the defect, and not by a combination of circumstances. Tomasello v. Comm., 398 Mass. 284, 286 (1986); Sanker v. Town of Orleans, 27 Mass. app. Ct. 410, 413 (1989).

Finally, even if the teenager were able to obtain a judgment under the road defect statute, it would be limited to a mere $5,000.

2. The claim against the town for failure to provide a crosswalk also is barred by the discretionary function exception to the Massachusetts Tort Claims Act.

Even if the road defect statute were not applicable, and the teenager were able to sue the town for lack of a crosswalk under the MTCA, a court would almost certainly hold that the town was shielded from liability by the discretionary function exception, c.258, §10(b). This is discussed more fully below in regard to the claim for failure to assign a police officer or crossing guard. See also David v. Town of Barnstable, 65 Mass. App. Ct. 1116, 2006 WL 278383, * 1 (2/6/06) (noting that claim that town was negligent in failing to provide for crosswalks across Rt. 132 to enable persons to cross the road to access the Cape Cod Mall (or enforce permit conditions requiring property owner to do so), “bears substantial indicia of discretionary function.”).

3. Failure to maintain existing street lights will also probably fail.

Largely for the same reasons outlined above, the town’s failure to maintain existing street lights in operative condition falls within the highway defect statute. Inadequate lighting conditions have been recognized as highway defects covered by c.84. Ram, 409 Mass. at 488 n.8; Gassett v. Comm. of Massachusetts, 1994 WL 878805, *2 (Mass. super. 12/13/94). Therefore, the teenager cannot bring a claim under the MTCA.

Further, his claims under the highway defect statute are either barred by the failure of notice or, even if he can avoid the 30 day requirement based on incapacity, are likely to fail the sole cause requirement unless the driver of the car that hit him was blameless.

4. Failure to assign traffic officer.

A claim against the town for failing to assign a police officer to direct traffic probably fails due to the towns sovereign immunity from suit. Because the failure to assign an officer is not a road defect, such a claim would be brought under the MTCA. However the claim will be barred by the discretionary function exception to the MTCA unless the town had an established policy requiring that a policeman be assigned to such a location at the time of the accident.

The discretionary function exception bars claims which arise from policy making decisions, as opposed to ministerial acts by government officers. According to the Supreme Judicial Court in Greenwood v. Town of Easton, 444 Mass. 467 (2005), The first step in deciding whether the discretionary function exception forecloses a plaintiff's claim is to determine whether the governmental actor had any discretion ... to do or not to do what the plaintiff claims caused [the] harm…. If the governmental actor had no discretion because a course of action was prescribed by a statute, regulation, or established agency practice, [the] discretionary function exception to governmental liability has no role to play in deciding the case.…

The second, and typically more difficult, step in deciding whether the discretionary function exception forecloses a plaintiff's claim “is to determine whether the discretion that the actor had is that kind of discretion for which § 10 ( b) provides immunity from liability…. The discretionary function exception is narrow, providing immunity only for discretionary conduct that involves policy making or planning. … 

The line of demarcation is between those functions that “rest on the exercise of judgment and discretion and represent planning and policymaking for which there would be governmental immunity and those functions which involve the implementation and execution of such governmental policy or planning for which there would be no governmental immunity.…  [W]here the purportedly tortious conduct of the governmental actor relates to “the carrying out of previously established policies or plans, such acts should be governed by the established standards of tort liability….  Id. at 469-71 (internal quotation marks omitted). See also Fortenbacher v. Comm., 72 Mass. App. Ct. 82 (2008); Audette v. Comm., 63 Mass. App. Ct. 727 (2005).

Decisions concerning the staffing necessary to provide adequate safety or security have been held to be discretionary. In Rinkaus v. Town of Carver, 418 Mass. 573 (1994), the a child was hit by a car when crossing the road while a large crowd had gathered with their cars to watch efforts to remove a piece of machinery from a cranberry bog. The Supreme Judicial Court affirmed a decision of the trial judge that the town’s decision not to provide police at the scene was discretionary and also fell within the public duty exception to the MTCA (§10(j)). While the Supreme Judicial Court decided only the public duty issue, the Rinkaus case was cited by the SJC in Horta v. Sullivan, 418 Mass. 615, 621 n.13 (1994) for the proposition that “the town’s failure to respond to a perceived traffic and safety problem was a protected discretionary function because it involved the distribution of resources and hence ‘planning’”. Similarly, a city school districts decision as to how many chaperones to send on a school field trip in order to maintain control over the children was a discretionary function. Alake v. City of Boston, 40 Mass. App. Ct. 610 (1996). See also Doe v. New Bedford Housing Authority, 417 Mass. 273, 286 n.13 (1994) (decision whether to provide security guards is discretionary); Wheeler v. Boston Housing Authority, 34 Mass. App. Ct. 36 (1993) (security decisions are discretionary); Grankewicz v. Boston Housing Authority, 1993 WL 818759, *1 (Mass. Super. 8/26/93) (security decisions, including level of police patrols, was discretionary).

The teenagers claim against the town for failure to assign a police officer to direct traffic is probably discretionary, and barred by the discretionary function exception, because the allocation of officers, a finite resource, clearly involves the balancing of competing goals and priorities. If, however, the teenager can show that the town had an established policy requiring that an officer be posted at the location and time of the accident, then the claim would not be barred. However, even if the suit were viable, the MTCA limits damages against the town to $100,000.

5. The teenager has no viable claim against the Mall.

Even where, as in this case, the injured party was a patron of the mall (the teenager crossed the road to access the mall), the mall owners would not be responsible for injuries resulting from dangerous conditions on an adjacent public street. Davis v. Westwood Group, 420 Mass. 739, 743-44 (1995) (race track owner, who owned land on both sides of highway and who hired a police detail to direct traffic at pedestrian crossing, owned no duty to invitees crossing the road); David v. Urban Retail Properties, 59 Mass. App. Ct. 1106, 2003 WL 22299533 (10/7/03) (unpublished) (mall owners owned no duty to plaintiff who was struck by car while crossing road to enter mall).

Because the Mall owner lacked any duty, there is no negligence claim against it.

Conclusion
The situation described in this article is one where the legally required result seems unjust. Recovery on the road defect claims is barred because the road defect was not the sole cause of the accident and due to failure to comply with a very short time limit for notice, despite the teenagers physical incapacity during all of that time. Even if a claim were viable under the road defects statute, recovery would be limited to a wholly inadequate $5,000. The town is shielded by sovereign immunity from liability for failure to assign a traffic officer, and even if the suit were barred, damages would be limited to $100,000, an amount often inadequate to compensate an injured plaintiff. Finally, the mall owner is regarded as having no duty to its customers even though it knows they must cross the road to enter the mall. 

If you have questions regarding this or any other legal matter, please contact Roger T. Manwaring at rtm@barronstad.com or (617) 531-6584.