The plaintiff Dorothy Gallant, administratrix of the estate of Regis Gallant, brought this action against the city of Worcester (city) for conscious pain and suffering
We summarize the allegations of the plaintiff's complaint. On September 15, 1977, Regis Gallant was struck by a motor vehicle while he was lawfully in a public way in the city, known as Lincoln Square. He subsequently died of the injuries sustained in the accident. The plaintiff was appointed administratrix of the decedent's estate on October 27, 1977. On November 16, 1979, she initiated suit under G.L.c. 258, § 2, as appearing in St. 1978, c. 512, § 15. Her complaint alleged negligent design, construction, and maintenance of Lincoln Square and further asserted "[p]roper request for investigation was made" pursuant to G.L.c. 258, § 4. See Pruner v. Clerk of the Superior Court in the County of Norfolk, 382 Mass. 309, 315-316 (1981).
The city brought a motion to dismiss the action, based on three grounds, pursuant to Mass. R. Civ. P. 12 (b) (6). In a supporting trial memorandum the city argued that the complaint could not be viewed as having been brought under the provisions of G.L.c. 258.
The reference to G.L.c. 258 in the complaint does not preclude relief on other legal theories. Under current Massachusetts practice there is no requirement that a complaint state the correct substantive theory of the case. See Mass. R. Civ. P. 8 (a) (2), 365 Mass. 749 (1974); Mass. R. Civ. P. 54 (c), 365 Mass. 820 (1974). "[A] complaint is not subject
1. The exclusivity of G.L.c. 84. We note that a judge deciding a motion to dismiss brought under rule 12, looks initially only at the pleadings. Reporters' Notes to Mass. R. Civ. P. 12, Mass. Ann. Laws, Rules of Civil and Appellate Procedure at 152 (1974). The first count of the plaintiff's complaint is for personal injury. The plaintiff's complaint avoided in this count the language of G.L.c. 84, § 15, which permits limited recovery against a governmental unit for "injury or damage" caused by a "defect" in a public way.
Prior to the enactment of G.L.c. 258, G.L.c. 84 was the exclusive remedy for claims against governmental entities responsible for defects in ways. Whalen v. Worcester Elec. Light Co., supra at 175. In enacting the tort claims act, the Legislature took pains to preserve the status and force of G.L.c. 84. Section 18 of St. 1978, c. 512, specified that the abrogation of governmental immunity "shall not be construed to supersede or repeal ... sections fifteen to twenty-five, inclusive, of chapter eighty-four of the General Laws." This saving clause thus retains the section as it had effect under prior statutory and decisional law. We find no inconsistency between this reservation of limited liability and the purpose underlying the tort claims act, viz., to institute "a rational scheme of governmental liability that is consistent with accepted tort principles and the reasonable expectations of the citizenry with respect to its government." Whitney v. Worcester, 373 Mass. 208, 215 (1977). The statutory scheme purports to broaden the range of tort claims beyond the numerous judicial and statutory exceptions earlier created to pierce the armor of immunity. See Morash & Sons v. Commonwealth, 363 Mass. 612, 619-623 (1973). The Legislature did not, however, intend to establish new or enlarged bases of tort liability. By its terms, St. 1978, c. 512, § 18, preserves the exclusivity of G.L.c. 84. See generally Cervone & Hardy, The Massachusetts
We discern nothing on the face of the pleadings or elsewhere in the record to suggest an injury qualitatively distinct from that cognizable under G.L.c. 84. Cf. Slaney v. Westwood Auto Inc., 366 Mass. 688, 701 (1975). To the extent the pleadings constituted a claim for injury resulting from a defect in the way, the judge properly dismissed the action.
2. The wrongful death claim. The second count of the plaintiff's complaint is based on the same allegations of fact, but seeks damages for the wrongful death of the plaintiff's intestate. The city asserts that this count was properly dismissed because it was time-barred by virtue of G.L.c. 229, § 1. The city's assertion that the plaintiff's claim for wrongful death also falls exclusively under G.L.c. 229, § 1,
In addition to the omission of G.L.c. 229, § 1, from the saving clause of St. 1978, c. 512, § 18, the Legislature consistently refrained from amending that section of the wrongful death statute after St. 1961, c. 166. This legislative inaction with regard to § 1 of G.L.c. 229 stands in sharp contrast to the sequence of modifications of § 2 of that chapter, providing for general wrongful death recovery. We deduce that the Legislature considered the § 1 limits on governmental death liability mere surplusage after 1978. In 1979, G.L.c. 229, § 2, was amended to update the statute of limitations to three years. St. 1979, c. 164, § 1. By companion legislation in 1979, the statute of limitations for G.L.c. 84, § 18, was also extended to three years. St. 1979, c. 163, § 1. See also 1979 Senate Doc. Nos. 710
Our holding that G.L.c. 229, § 1, has been implicitly repealed is consistent not only with the terms of the enabling act but, more importantly, with the goals of G.L.c. 258. The Legislature might reasonably choose to put a wrongful death claimant on a different footing from one claiming injury by virtue of a defect in a way. The latter claims are likely to be myriad in number, to run a whole range of harm, and to constitute a constant drain on the governmental treasury. See Morash, supra at 623; Glannon, supra at 16 & n. 114. Death claims, on the other hand, being drastic in the extreme and relatively infrequent, need not be constrained to the recovery limits of G.L.c. 84.
3. Effect of the implied repeal of G.L.c. 229, § 1. Section 2 of G.L.c. 258, by which the Legislature abrogated governmental tort immunity, renders public employers liable "in the same manner and to the same extent as a private individual under like circumstances." This language puts governmental entities on the same footing as private tort defendants, but does not enlarge governmental liability beyond the remedies already established under the common and statutory law. Cf. Feres v. United States, 340 U.S. 135, 141 (1950); see generally Glannon, supra at 14, 16. Thus, G.L.c. 258, § 2, does not generate new causes of action by its terms; it simply permits a person in the position of the plaintiff to have recourse to the previously established general wrongful death remedy, G.L.c. 229, § 2.
In so ruling we observe that the administrative requirements of G.L.c. 258, § 4, would apply. Pruner v. Clerk of the Superior Court in the County of Norfolk, 382 Mass. 309, 315-316 (1981). The record suggests but does not establish such compliance. We further decline to decide, on the scant record before us, whether the discretionary function exception of G.L.c. 258, § 10 (b), might totally preclude Gallant's action. We do not intimate the result on remand, but the possibility exists that further factual presentation may lead to summary judgment based on statutory immunity or on lack of compliance with the prerequisites of G.L.c. 258, § 4.
In summary, we hold that the first count of the plaintiff's complaint constitutes in substance a claim for injury from a defect in a public way. This count, untimely brought under G.L.c. 84, § 18, was properly dismissed. By the implied repeal of G.L.c. 229, § 1, which would otherwise control the instant action for wrongful death, the plaintiff's claim against the city is at least cognizable under G.L.c. 258, § 2. The second count of the complaint therefore was timely brought and a dismissal based on the pleadings was not warranted. We remand the case to the Superior Court for further proceedings consistent with this opinion.