Image by Tak Toyoshima
You could be walking around with a life worth only four grand and not even know it. All your hard work and those good looks, priced to sell by the cold, dark, invisible hand of the uncaring marketplace. Don’t believe it? Check the Massachusetts General Laws. Your elected officials set the price for your existence, at least in the event that your death is caused by a defect in a public roadway.
Consider Caitlin Clavette. On Feb 12, between 7 and 8 o’clock in the morning, a sport utility vehicle changed lanes on its way out of the Tip O’Neill Tunnel onto 93 south, launching a 200-pound manhole cover into the air. The falling manhole cover shattered the front windshield of the 35-year-old art teacher’s vehicle, killing her in the process.
“The real issue is the enormous randomness of the tragedy,” said Gov Charlie Baker. In part, sure, but there’s another tragedy that compounds the already insane scenario surrounding Clavette’s passing. In Massachusetts, the law severely limits the amount her family can recover from the state to just $4,000.
That was the first thought to run through my sick lawyerly brain when I heard the news about Clavette’s untimely death, because that is the argument the Commonwealth makes when facing a wrongful death claim caused by anything to do with a roadway. Specifically, Chapter 81 (the Massachusetts Highway Statute), Chapter 258 (the Massachusetts Tort Claims Act), and Chapter 229 (the Massachusetts Wrongful Death Statute) govern claims against the state in such situations.
The Tort Claims Act arises from principles of sovereign immunity, which go all the way back to Old England. Basically, it means you cannot sue the king. Meanwhile, the Wrongful Death Statute permits the personal representative of a decedent to recover for conscious pain and suffering to the same extent that the decedent could have if she had survived. In this case, had Clavette survived, the Highway Statute would have limited her damages to $4,000.
The Massachusetts Department of Transportation’s predecessor, the Massachusetts Turnpike Authority, used this same defense on more than one occasion. In one case, MTA attorneys argued that the family of Milena Del Valle should get a mere $4,000 for her life after four three-ton concrete ceiling panels fell from the roof of an I-90 connector tunnel, killing the 38-year-old mother of three in 2006. Del Valle’s children sued the MTA, among others, for the wrongful death of their mother. In response, the MTA filed a motion to kill the case, arguing that Del Valle’s children were limited in their recovery against the MTA to $4,000 because it was a defect in the public way. Luckily, her family was able to bring a lawsuit against 16 other defendants, companies responsible for the bad work that are not protected by sovereign immunity.
In practice, the state is quick to label almost anything a defect in the roadway. Besides falling ceiling tiles, there’s also a case in which Commonwealth attorneys argued that a cow—that’s right, a fucking cow—that breached a fence in Western Mass and walked onto the turnpike, causing the death of a New Jersey truck driver, was a roadway defect. On appeal, however, the court ruled that the hole in the fence was too remote to justify the argument.
Likewise, in 2007, Pawel Swierczynski had to file suit against companies that were not immunized under Mass Law when a 250-pound waffle-style grate went airborne on Route 128 and slammed through his windshield, causing him serious bodily injury. Swierczynski’s attorneys initially filed suit without even bothering to name the Commonwealth as a defendant.
Unfortunately, the family of Caitlin Clavette may not have that many options. It is unlikely that the driver of the SUV involved breached any duty to Clavette by driving over the manhole cover, while it appears that there has been no work done in connection with the subject manhole cover by private parties or otherwise for almost two years, since it was last inspected in 2014.
For their part, DOT officials have released a statement indicating that they have identified a document confirming that the subject manhole cover was properly in place in 2014 (and undisturbed since that time) and claiming they inspected 900-1,000 manhole covers around Greater Boston in the 24-hour period following Clavette’s death, and they determined that everything is just fine. Which is highly doubtful, since the department doesn’t even have a manhole cover database, making it impossible for them to have conducted a comprehensive search. Furthermore, inspecting 900-1,000 manhole covers in less than 24 hours would require an effort of epic proportions, in an extreme cold-weather environment, incurring an overtime pay period. These guys did 40 manhole covers an hour?
I have a hard time with “randomness” and “axioms,” those legal hooks that undervalue human lives in situations like these, especially when they involve the death of innocent people like Clavette or Del Valle, the latter of whom was a year older than I am now when panels in the I-90 connector tunnel killed her a decade ago. But at least media coverage of Del Valle was comprehensive (though I don’t recall too many mentions of the $4,000 liability cap).
Attention to the death of Clavette, on the other hand, may be over already. It will be difficult for an attorney to marshal the resources needed to sue the state. The Commonwealth, after all, can just use taxpayer money and public employees to fight her family with its tried-and-tested axiomatic “king can do no wrong” argument, limiting their recovery to four grand.
Craig Rourke is an attorney with an office on Broadway in Ball Square, Somerville. Craig and his wife, Clio, support no-kill animal rescue shelters and have three dogs, Brady, Pippa, and Chilly Gil. The information herein is the author’s opinion and does not constitute legal advice. If you are injured by a defect in the roadway, you should consult an attorney to determine your rights.