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15-P-253                                               Appeals Court

 DONALD R. LANDRY      vs.   MASSACHUSETTS PORT AUTHORITY & another.1


                              No. 15-P-253.

         Hampden.       November 12, 2015. - April 12, 2016.

           Present:     Cohen, Grainger, & Wolohojian, JJ.


Massachusetts Port Authority. Municipal Corporations, Liability
     for tort. Practice, Civil, Summary judgment, Interlocutory
     appeal, Execution. Negligence, Use of way. Way, Public:
     defect. Notice, Action alleging injury caused by defect in
     public way.



     Civil action commenced in the Superior Court Department on
June 25, 2012.

     The case was heard by C. Jeffrey Kinder, J., on motions for
summary judgment.


    Tara E. Lynch for the defendants.
    Enrico M. De Maio for the plaintiff.


    COHEN, J.       The plaintiff, Donald R. Landry, brought this

negligence action pursuant to the Massachusetts Tort Claims Act,

G. L. c. 258, seeking damages from the defendants, the


    1
        City of Worcester.
                                                                   2


Massachusetts Port Authority (Massport) and the city of

Worcester (city), for injuries he sustained at the Worcester

Regional Airport (airport) when a motorized sliding gate pinned

him to a metal bar protruding from the gate post.   The

defendants jointly moved for summary judgment, claiming that

Landry was injured by reason of a defect in a way and, hence,

his exclusive remedy was an action under G. L. c. 84, §§ 15, 18,

and 19.2   See Botello v. Massachusetts Port Authy., 47 Mass. App.

Ct. 788, 789 & n.3 (1999).   Because it was undisputed that

Landry had not given notice within thirty days of his injury, as

required by c. 84, § 18,3 the defendants argued that they were

entitled to judgment as matter of law.   The city also argued

that it was entitled to summary judgment for the independent

reason that it was not responsible for "the way at issue."

     A judge of the Superior Court denied summary judgment,

concluding that the defendants had failed to establish that the




     2
       Massport is brought within the ambit of these sections by
St. 1956, c. 465, § 23, eighth par., which states in relevant
part: "[Massport] shall be liable to any persons sustaining
bodily injury or damage in or on its property by reason of a
defect or want of repair of ways . . . to the same extent as
though said ways were a way within the meaning of sections
fifteen, eighteen, and nineteen of chapter eighty-four of the
General Laws."
     3
       Landry alleges in his complaint, and it is not disputed,
that he made timely presentment of his claims under c. 258.
                                                                     3


site of the accident was a "way,"4 and that there remained a

genuine issue of material fact as to the city's responsibility

for the maintenance and operation of the gate.     The defendants

then jointly filed a notice of appeal from this interlocutory

order, claiming entitlement to immediate review under the

doctrine of present execution.   Although we conclude that the

appeal is not properly before us and must be dismissed, we

exercise our discretion to consider the defendants' substantive

arguments, which we find to be without merit.

     Background.   Viewing the evidence in the summary judgment

record in the light most favorable to the nonmoving party, see

Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991),

the relevant facts may be summarized as follows.    On June 26,

2009, Landry, an employee of a commercial laundry, drove to the

airport to make a delivery of clean uniforms to the airport

maintenance department.   At that time, under the terms of an

agreement between Massport and the city, Massport operated the

airport but all maintenance personnel were employed by the city.

     Landry had been making such deliveries for six years.      In

the beginning, he would drive up to the airport's main gate,

i.e., gate ten, where security guards would inspect his vehicle,


     4
       Previously, Massport had raised the same issue by motion
to dismiss. At that stage, based upon the complaint alone, an
earlier judge also ruled that it had not been shown that the
site of the accident was a way.
                                                                       4


escort him to the maintenance garage, and then escort him out.

Because this was a time-consuming process, approximately one

year before his injury, Landry was given permission to park his

vehicle outside gate eighteen,5 which was right outside the

maintenance garage.    He then would be admitted through that gate

and proceed on foot.

     The gate was twenty to twenty-five feet long, and ten feet

high.    It was motorized and moved on wheels from left to right.

When the gate was not padlocked, it could be operated by remote

control.    Typically, when Landry arrived, a worker would come

out of the maintenance garage, go over to one of the maintenance

trucks parked outside, reach up to a remote control on the

visor, and press the button to open the gate.

     On the day of the accident, Landry telephoned ahead and

received confirmation that he should go to gate eighteen.       When

he arrived, the gate was closed but not padlocked.    A

maintenance employee spotted him and used the remote control in

a maintenance truck to open the gate.    Instead of opening all

the way, however, the gate moved only about three to four feet.

After waiting approximately thirty to forty seconds with no

further movement of the gate or instructions from the employee

using the remote control, Landry began to walk sideways through

the opening.    This was a tight space, not only because Landry

     5
         Occasionally he was directed to park at other gates.
                                                                      5


was carrying a load of uniforms slung over his shoulder, but

also because there was a twelve-inch piece of angle iron

protruding from the gate post in order to guide the gate into

place as it closed.

    With Landry's back to the gate, and his chest facing the

angle iron, the gate suddenly began to move, pushing him into

the angle iron.   As a result, he sustained a fractured sternum

and was unable to work for two months.     When he returned, he

spoke with a few of the maintenance employees, who told him that

the remote control button had gotten stuck.     They also told him

that this had been an ongoing issue and that, prior to his

accident, the gate had been closing on their pickup trucks as

they went through.

    Discussion.      1.   Doctrine of present execution.   The

doctrine of present execution is a narrow exception to the

principle that there is no right of appeal from an interlocutory

order unless one is authorized by statute or rule.      Marcus v.

Newton, 462 Mass. 148, 151-152 (2012).      The exception applies

when two criteria are met:     the interlocutory ruling must

interfere with rights in a manner that cannot be remedied on

appeal from the final judgment, and the matter to be decided on

appeal must be collateral to the merits of the controversy.         Id.

at 152.
                                                                   6


     In this case, even assuming that the first criterion is met

because the defendants' immunity from suit is implicated,6 we are

unpersuaded that the second criterion has been satisfied.     A

collateral issue is "one that will not have to be considered at

trial."   Shapiro v. Worcester, 464 Mass. 261, 264 n.2 (2013)

(citation omitted).   Here, however, in order to decide whether

Landry's claim is subject to c. 84, it must be determined where

and how his injury occurred.    Such factual issues are not

collateral; they are essentially congruent with issues to be

tried.

     The case of Rodriguez v. Somerville, 472 Mass. 1008, 1009-

1010 (2015), relied upon by the defendants, is distinguishable.

In that case, the issue presented for interlocutory review was

whether the plaintiff's presentment letter pursuant to G. L.

c. 258, § 4, was defective.    This issue was discrete and

unrelated to the underlying facts pertaining to the plaintiff's

injury.   Similarly, in Shapiro v. Worcester, supra at 265, the

issue of the retroactivity of the presentment requirement was

separate from those raised by the plaintiff's underlying

nuisance claim and, therefore, appealable under the doctrine of

present execution.

     6
       Insofar as it applies to a governmental entity, c. 84,
§ 15, operates as a limited waiver of sovereign immunity in
cases where a person has been injured by a defect on a publicly
maintained way. To take advantage of the waiver, however, the
injured person must comply with the notice requirements of § 18.
                                                                        7


       We are compelled to conclude that the defendants' appeal is

not properly before us.7

       2.    Denial of summary judgment.   Nevertheless, we comment

on the merits of the defendants' arguments, as the issues have

been fully briefed, questions concerning the parameters of

liability under c. 84 are recurrent, and our discussion may be

instructive in future cases.       Cf. Marcus v. Newton, 462 Mass. at

153.       We review the denial of the defendants' motion for summary

judgment de novo.       Anderson v. Gloucester, 75 Mass. App. Ct.

429, 432 (2009).

       In order to be subject to c. 84, §§ 15, 18, and 19, the

injury in question must have come about "by reason of a defect

. . . in or upon a way."       G. L. c. 84, § 15.    Here, the

defendants have not shown that this statutory test is met.

First, the facts of record do not establish as matter of law

that the site of Landry's injury was a way.         Notwithstanding

Landry's testimony that he traversed gate eighteen on foot with

some regularity, it is not conclusively established that the

place where he was trapped was a roadway, sidewalk, or travel

       7
       We note that invoking the doctrine of present execution in
a case where there is a fact-based dispute as to the application
of c. 84 and its notice provisions appears to be unprecedented.
In Polonsky v. Massachusetts Port Authy., 60 Mass. App. Ct. 922
(2004), we reviewed the denial of Massport's motion for summary
judgment claiming that an injury sustained in one of its parking
lots was barred by c. 84. However, that case came to us by way
of a report by the trial court judge pursuant to Mass.R.Civ.P.
64, as amended, 423 Mass. 1410 (1996).
                                                                   8


lane.   The defendants submitted no affidavit or testimony

concerning the accident site from anyone associated with the

airport.    There are, moreover, photographs in the record that

raise a question whether gate eighteen simply marked the

beginning of a restricted area used by the maintenance

department for parking and storing their vehicles and equipment.

See Polonsky v. Massachusetts Port Authy., 60 Mass. App. Ct.

922, 923 (2004) (parking area at airport was not a way).

     In any event, even if the accident occurred on a way, in

order for c. 84 to apply, Landry's injury had to be sustained

"by reason of" a "defect in or upon the way."   G. L. c. 84,

§ 15.   In this respect, "it is not the location of the injury,

but rather the plaintiff's theory of liability, that renders the

[application of c. 84 and its notice requirement] at best

unclear."   Peters v. Haymarket Leasing, Inc., 64 Mass. App. Ct.

767, 777 (2005).

     Landry has a factually supported theory of liability that

his injury resulted not from any defect in the area where he was

injured, but from human agency -- the negligent operation or

maintenance of the remote control by a person or persons

employed by or under the supervision of the city, Massport, or

both, which caused the motorized sliding fence to move

unexpectedly while Landry was walking through the gate.      On that
                                                                9


theory of the case, neither defendant was entitled to summary

judgment.

                                   Appeal dismissed.
