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Twomey v. Commonwealth4/20/2005
Middlesex.
March 10, 2005
Negligence, Stop sign. Commonwealth, Claim against. Way, Public: stop sign. Municipal Corporations, Stop sign. Governmental Immunity.
Civil action commenced in the Superior Court Department on December 10, 1999.
The case was heard by Wendie I. Gershengorn, J., on a motion for summary judgment, and a motion for reconsideration was also heard by her.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
We transferred this case here on our own motion to consider whether the Commonwealth's duty to maintain a stop sign erected, pursuant to G. L. c. 85, § 2, by the Massachusetts Highway Department (department) on property owned by the town of Westford (town), includes the duty to ensure that the sign is visible and not obstructed by surrounding foliage and, if such a duty exists, whether provisions of G. L. c. 258, § 10 (f), shield the Commonwealth from liability for its negligent performance of that duty. The plaintiffs' son, Peter M. Twomey, was killed in a collision after the driver of the vehicle in which he was a passenger failed to stop at a stop sign before entering the intersection of Concord Road (also known as Route 225), a road that is owned and maintained by the town, and Power Road, a State highway owned and maintained by the Commonwealth. The plaintiffs assert (and we accept as true for purposes of this opinion) that the fatal collision occurred because trees and brush surrounding the stop sign obscured the sign from view.
As coadministrators of their son's estate, the plaintiffs brought a wrongful death action against the Commonwealth in the Superior Court. The complaint alleged that the Commonwealth had a statutory duty to ensure that the sign remained clear of overgrowth and that its failure to do so constituted negligence. The Commonwealth responded with a motion to dismiss for lack of subject matter jurisdiction, or, in the alternative, summary judgment, denying any obligation on its part to cut trees or bushes surrounding a sign on town property and asserting, moreover, that G. L. c. 87, §§ 3 and 5, prohibit, as a matter of law, anyone other than a town tree warden from doing so. After a hearing, the judge (who properly treated the motion as one seeking summary judgment) concluded that the Commonwealth's authority, under G. L. c. 85, § 2, to "erect and maintain" traffic signs imposes on the Commonwealth a duty to inspect such signs erected on town land to ensure that they are free from overhanging foliage and, if necessary, to order the town to trim the foliage. Accordingly, the judge denied the Commonwealth's motion. The Commonwealth then filed a motion for reconsideration, asserting, for the first time, that immunity provisions contained in the Massachusetts Tort Claims Act, G. L. c. 258, § 10 (f), shield it from liability arising out of any "failure to inspect." The motion was denied without comment, and the Commonwealth was allowed to pursue this interlocutory appeal. See Brum v. Dartmouth, 428 Mass. 684, 687 (1999). For reasons that follow, we affirm the judge's orders denying the motions for summary judgment and for reconsideration.
1. The facts are undisputed for purposes of this appeal. In the summer of 1997, Peter Twomey had just graduated from high school and planned to enter college in the fall. On the morning of July 15, Peter was working as a house painter in the town of Concord. Peter and a co-worker were instructed to leave work early due to a light rain that was falling, and the two men set off in the co-worker's vehicle, a Ford Mustang GT, for Peter's home in the nearby town of Groton. At approximately 9 A.M., th
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