Mamulski v. Town of Easthampton

• Decision Date: 07 May 1991
• Docket Number: No. 5486,5486
• Citation: 570 N.E.2d 1028,410 Mass. 28
• Parties: Jacqueline A. MAMULSKI, executrix, 1 v. TOWN OF EASTHAMPTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1028

570 N.E.2d 1028

410 Mass. 28

Jacqueline A. MAMULSKI, executrix, ¹ v. TOWN OF EASTHAMPTON.

No. 5486.

Supreme Judicial Court of Massachusetts Hampshire.

Argued Feb. 7, 1991.

Decided May 7, 1991.

Michael J. Coyne, Springfield, for plaintiff.

Nancy Frankel Pelletier, Springfield, for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

WILKINS, Judge.

In her wrongful death count (see G.L. c. 229, § 2 [1988 ed.]; G.L. c. 258, § 2 [1988 ed.] ) against the defendant town, the plaintiff alleged that, on December 5, 1988, Vicki L. Smercak operated her motor vehicle on Clark Street at its intersection with North Hampshire Street in Easthampton and negligently caused her vehicle to collide with a motor vehicle operated by Felix S. Mamulski, the plaintiff's decedent, causing his death. Before the accident the town had been notified by several people, including its own police officers, that "the stop sign located on Clark Street at the intersection of North Hampshire Street, was missing and needed to be replaced," but the town had failed to replace it. The complaint alleged that the town's negligent failure to replace the stop sign caused the accident and the death of the plaintiff's decedent. The count also alleged that proper presentment of the claim had been given to the town pursuant to G.L. c. 258, § 4 (1988 ed).

A judge of the Superior Court allowed the town's motion to dismiss the count against it. He ruled that the town owed the plaintiff's decedent no duty of care because it had no special relationship with the plaintiff's decedent that warranted the imposition of liability under principles expressed in Irwin v. Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984). ² We transferred the plaintiff's appeal here and now reverse the judgment dismissing the count against the town.

The principles discussed in our opinions concerning the imposition of liability on a governmental body where there is a "special relationship" between an allegedly negligent public employee and a member of the public have no application on the facts of this case. We, therefore, decline to discuss the allegations against the town in the context of the special relationship or special duty cases, even though that is the way in which the parties have expressed their arguments to us. On the pleadings, this case is not necessarily one in which a person has been harmed directly by the wrongful conduct of a third person where a public employee may have failed in his duty to enforce the law and thereby to interrupt or prevent that third person's harmful activity. See Onofrio v. Department of Mental Health, 408 Mass. 605, 609-610, 562 N.E.2d 1341 (1990).

The town's alleged negligence is based on its breach of a duty to replace a stop sign. The town is in a position similar to that of one who controls certain land and has a duty to exercise reasonable care toward persons lawfully on that property. See Doherty v. Belmont, 396 Mass. 271, 273-274, 485 N.E.2d 183 (1985). The factual circumstances are also analogous to municipal liability for wrongful death due to defects in highways. See Gallant v. Worcester, 383 Mass. 707, 714-715, 421 N.E.2d 1196 (1981); Sanker v. Orleans, 27 Mass.App.Ct. 410, 413-414, 538 N.E.2d 999 (1989), and authorities cited. ³

We cannot fairly say that on the allegations of the complaint, as a matter of law, the town had no duty to the plaintiff's decedent. "[L]iability should...