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Twomey v. Commonwealth4/20/2005
ose an "unwieldy and an unwarranted" burden. The force of this argument is largely undercut, however, by the Legislature's express reference, in G. L. c. 85, § 2, to "the department's current manual on uniform traffic control devices" as a source of guidance for the manner in which highways are to be maintained. Section 2A-30 of that manual instructs that a suitable schedule should be established for safety inspections of signs and specifically states that " pecial attention and necessary action should be taken to see that weeds, trees, shrubbery and construction materials do not obscure the face of any sign." Had the department heeded this provision, it is quite possible that this tragic incident could have been avoided.
We acknowledge the apparent contradiction presented when the duty we have just described is considered in conjunction with language of G. L. c. 87, §§ 3 and 5, providing that a town tree warden (or a deputy) has the exclusive authority to trim or remove shade trees and bushes located on town land. Section 3 ("public shade trees shall not be cut, trimmed or removed, in whole or in part, by any person other than the tree warden or his deputy") and § 5 (" ree wardens and their deputies, but no other person, may, without a hearing, trim, cut down or remove trees . . . and bushes, standing in public ways"), read literally, would prohibit a department employee from cutting down the overgrowing foliage in this case even if an inspection had revealed that the foliage impaired the sign's visibility. As this court held in Valvoline Oil Co. v. Winthrop, supra, however, that a tree warden has exclusive statutory authority to trim public trees and bushes does not relieve other town officials from their own obligatory duties to exercise due care to keep highways reasonably safe for travelers. See id. at 520. So it is here. Therefore, when an inspection reveals the presence of foliage needing to be trimmed, the department may inform the town that the task of trimming, or removing, the foliage needs to be carried out. See Valvoline Oil Co. v. Winthrop, supra. In the alternative, G. L. c. 87, §§ 3 and 5, notwithstanding, and in light of the fundamental legislative concern for the safety of the traveling public embodied in G. L. c. 85, § 2, we conclude that the department properly may take it on itself to trim any such foliage. The Legislature would not have authorized the Commonwealth to install and maintain signs necessary to protect the traveling public and then deny it the means to ensure that its signs remain in a functional condition. Any other resolution of the statutes' interplay would be neither practical nor sensible. See Healey v. Commissioner of Pub. Welfare, 414 Mass. 18, 25-26 (1992); Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 190 (1976); Atlas Distrib. Co. v. Alcoholic Beverages Control Comm'n, 354 Mass. 408, 414 (1968).
3. We reject the Commonwealth's claim of immunity for any negligence on its part. General Laws c. 258, § 10 (f), grants the Commonwealth immunity from "any claim based upon the failure to inspect, or an inadequate or negligent inspection, of any property, real or personal, to determine whether the property complies with or violates any law, regulation, ordinance or code, or contains a hazard to health or safety." This language applies to situations where the Commonwealth inspects the property of third parties, as in the case of an inspection for code compliance. See Barnes v. Metropolitan Hous. Assistance Program, 425 Mass. 79, 85 (1997) ("the Legislature, in enacting G. L. c. 258, § 10 , undertook to negate the doctrine" of Ayala v. Boston Hous. Auth., 404 Mass. 689, 704 [holding that Massachusetts Tort Claims Act allows sui
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