In Massachusetts, the "exclusive remedy for a claim of personal injury or property damage against governmental entities responsible for defects in a way is G.L. c.84, §15." Huff v. Holyoke, 386 Mass. 582, 585 (1982). The statute itself states as follows:
Several points should be made regarding the applicability of Chapter 84, Section 15. First, the statutory remedy is available only on a showing of a "defect" or "want of repair" in a way. A "defect" is defined as any condition making a way "unsafe or inconvenient for ordinary travel." Gallant v. Worcester, 383 Mass. 707, 711 (1981). Slight imperfections in the road surface do not qualify as "defects," provided the municipality or person otherwise responsible exercised ordinary care and diligence to keep the way in a reasonably safe condition. Moreover, "[a] county, city or town shall not be liable for an injury or damage sustained upon a public way by reason of snow or ice thereon, if the place at which the injury or damage was sustained was at the time of the accident otherwise reasonably safe and convenient for travelers." M.G.L. c.84, §17; Gamere v. 236 Commonwealth Ave. Condominium Ass'n, 19 Mass. App. Ct. 359 (1985).
Second, recovery against a municipality for liability due to a defect in a public way is limited to $5,000. Thus, a municipality benefits by this statutory limit to the extent it can characterize successfully any claim for recovery against it as one which falls under the provisions of Chapter 84, Section 15.
Third, in accordance with the so-called "sole cause" rule, the statutory liability of cities, towns or counties under Section 15 is limited to those cases where the defect in the way was the sole cause of injury or damage to the claimant. Tomasello v. Commonwealth, 398 Mass. 284, 286 (1986); Carroll v. City of Lowell, 321 Mass. 98 (1947). If the negligence of the claimant or of some third party caused or contributed, either in whole or in part, to the claimant's injuries or damages, then her recovery under Section 15 is barred.
Fourth, the remedy provided under Section 15 is not only available against counties, cities or towns, but also against any "person by law obliged to repair" the way. Thus, private owners of ways open to the public can be held liable to one who sustains bodily injury or property damage by reason of a defect in or want of repair of that way. However, with respect to non-municipal defendants, Section 15 is not an exclusive remedy; the defendant may still be held liable to the claimant under ordinary negligence principles. Marsden v. Eastern Gas & Fuel Associates, 7 Mass. App. Ct. 27 (1979). The $5,000 limitation on recovery, as well as the "sole cause" rule, are likewise unavailable to non-municipal defendants.
Fifth, a person who suffers injury or damage due to a defect in a way must give notice of his or her injury or damage to the municipality or "person by law obliged to keep said way in repair" within thirty days. M.G.L. c.84, §18. Such notice must be in writing. M.G.L. c.84, §19. It must also contain the name and address, including street, number and city or town, of the person injured, as well as the time, place and cause of his or her injury. Failure to give the requisite notice shall preclude recovery under Section 15, Paddock v. Town of Brookline, 347 Mass. 230 (1964).
Finally, the exclusivity of Chapter 84, Section 15, is expressly preserved by M.G.L. c.258, the Massachusetts Tort Claims Act. Trioli v. Town of Sudbury, 15 Mass. App. Ct. 394, 398-99 (1983). Thus, the liability of a city or town for injury or damage due to a defect in the way is limited to $5,000, not $100,000.