Opinion
No. 03-1642.
October 23, 2007.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Brian F. Napolitano, brought this action against the Massachusetts Turnpike Authority (MTA) alleging negligent design and implementation of a guardrail on the Massachusetts Turnpike, and negligent maintenance for failing to replace those guardrails after learning of their defectiveness. The matter is before this court on the defendant's Motion for Summary Judgment. For the reasons set forth below, MTA's Motion for Summary Judgment is ALLOWED.
BACKGROUND
The undisputed facts and the facts viewed in the light most favorable to the non-moving party, Napolitano, are as follows:
On August 30, 2000, a motor vehicle operated by Karen Starr was traveling eastbound on the Massachusetts Turnpike when she lost control of her motor vehicle and hit the center median. The median was a flared, turned-down, embedded guardrail located at an emergency U-turn opening in the rail. Her vehicle became airborne and landed on the roof of a motor vehicle driven by Napolitano. Starr was pronounced dead at the scene. Napolitano was airlifted for emergency medical treatment and now claims to suffer permanent disabilities.
The guardrail at this location was installed in 1977. No further construction occurred in that vicinity of the turnpike except pursuant to a contract which the MTA accepted upon completion on August 26, 1994. As early as 1971, roadside safety studies revealed the potential for a turned-down guardrail terminal to act as a launching ramp when struck head-on by vehicles traveling at high velocity. In 1990, the United States Department of Transportation, Federal Highway Administration, published a guidance memorandum, suggesting that the installation of turned-down guardrails should be discontinued and existing ones be replaced. The MTA did not replace the guardrail at the place where the accident occurred. Napolitano filed this suit in 2003.
Previously, a motion for summary judgment was brought by the MTA, raising road defect (see G.L. c. 81) and statutory notice issues, which was denied by this court (McCann, J.) on March 4, 2004. This court found that the allegedly defective guardrail was not a road defect pursuant to that statute. The MTA now raises the issue of the statute of repose.
G.L. c. 260, § 2B states in relevant part: Actions of tort for damages arising out of any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property of a public agency, as defined in said section thirty-nine A shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall actions be commenced more than six years after the earlier of the dates of: (1) official acceptance of the project by the public agency; (2) the opening of the real property to public use; (3) the acceptance by the contractor of a final estimate prepared by the public agency pursuant to chapter thirty, section thirty-nine G; or (4) substantial completion of the work and the taking possession for occupancy by the awarding authority.
DISCUSSION
The court will grant summary judgment where there are no genuine issues of material fact and the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Comm'r of Corr., 390 Mass. 419, 422 (1983). Accordingly, the court will grant a motion for summary judgment where there is an absence of evidence to support the non-moving party's position. Rogers v. Fair, 902 F. 2d 140, 143 (1st Cir. 1990). The opposing party must establish by reference to competent and admissible evidence that a genuine issue of material fact exists. See Mass. R. Civ. P. 56; Chiu-Woo v. May, 17 Mass. App. Ct. 949 (1983). The court should not weigh evidence, assess credibility, or find facts; it may only consider undisputed material facts and apply them to the law. Kelly v. Rossi, 395 Mass. 659, 663 (1985). The court must view the facts in the light most favorable to the non-moving party. SeeG.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 263 (1991).
General Laws Chapter 260, § 2B, otherwise known as the statute of repose, limits the period for bringing any claims for negligence in design, planning, construction, or administration of improvements to real property of a public agency to six years following substantial completion or acceptance of the improvements "without regard to when the deficiency or construction is first discovered." Sonin v.Massachusetts Turnpike Authority, 61 Mass. App. Ct. 287, 289 (2004). The statute of repose should be strictly construed and does not allow for the tolling of the statute for any reason. See, e.g., Coca-Cola Bottling Co. of Cape Cod, v. Weston Sampson Engineers, Inc., 45 Mass. App. Ct. 120 (1998) (in dismissing case due to statute of repose, court could not consider the fact that plaintiff did not discover or reasonably could not have discovered the harm before the statute's six-year period expired); Commonwealth v. Owens-Corning Fiberglass Corp., 38 Mass. App. Ct. 600 (1995) (allowing recovery for asbestos removal pursuant to Asbestos Revival statute that would have otherwise been time-barred by the statute of repose). Even if the defendant had "caused the deficiency by gross negligence, wanton conduct, or even knowing and intentional wrongdoing makes no difference as § 2B is written." Sullivan v. Iantosca, 409 Mass. 796, 798-99 (1991).
The statute of repose applies where there is evidence of negligent design. See G.L. c. 260, § 2B. The causes of action in the complaint filed by Napolitano are best characterized as ones of negligent design; not ones of negligent maintenance. Negligent design occurs when a design is inherently unsafe. Negligent maintenance occurs when a certain improvement to real property is not adequately kept up to the standard specified in the original design. Here, the gravamen of Napolitano's case is that the design of the guardrail was unsafe. The fact that the MTA did not replace the guardrails does not make this a case of negligent maintenance; under the statute of repose a party may be aware that a design is defective but the statute will not be tolled for failing to take action to replace the design. See Sullivan, 409 Mass. at 798-99.
At the latest, it is undisputed that the applicable date for the purposes of the statute of repose is August 26, 1994. This action was brought by Napolitano in 2003, longer than the six-year limit. Therefore, Napolitano's action is time-barred by the statute of repose as to all counts.
ORDER
For the reasons discussed above, it is ORDERED that defendant's Motion for Summary Judgment be ALLOWED.