But Evans couldn’t work last summer. His arm needed repair. She estimated that she had lost over $10,000 in income. And she figured the city of Boston should compensate her. After all, the city is responsible for keeping streets and sidewalks safe, and the lip was a defect in need of repair. (This has since been corrected.)
Does the city of Boston have a legal obligation to compensate Evans?
Yes, but his liability is capped at $5,000, under a state law that hasn’t been updated since 1965. Under that law, when a person is injured due to a defect in a street or sidewalk, the state, town or city responsible for now, he only has to pay $5,000 at most.
It doesn’t matter how badly someone is hurt. It doesn’t matter how much income they have lost or how much their medical bills are. The cap is foolproof.
The cap may have made sense when the state legislature raised it to $5,000 in 1965. But that equates to about $560 today, after adjusting for inflation.
Almost every year, bills are introduced in the state legislature to increase the cap to $100,000. But none passed.
“Very insufficient,” said Martin Healy, chief legal counsel for the Massachusetts Bar Association, of the $5,000 maximum available for those injured. “It creates substantial injustice for ordinary people who are unfortunate enough to be injured on a sidewalk.”
The bar association and the state’s Academy of Trial Lawyers have long lobbied the state legislature to raise the cap, which has now stood for nearly 58 years without an increase. Healy said lawmakers generally gave them “a sympathetic listen,” but nothing happened.
That the state, as well as cities and towns, can limit their liability is rooted in an age-old concept known as sovereign immunity, which originated in England. It is based on the idea that, as an online legal institute puts it, “the king could do no wrong”, and therefore could not be taken to court.
Today, the justification for liability caps is purely fiscal. This saves taxpayers from funding major legal settlements. That’s a good thing, I guess, unless you’re the one hurt.
The cap for injuries on streets and sidewalks is one of many on the books. In the late 1970s, the legislature set a limit of $100,000 on damages paid in any civil case against the state or a municipality. This means, for example, that if you are injured in a school building, you can collect 20 times more than if you are injured on the sidewalk outside the school.
There is an exception for wrongful convictions and incarceration: in these cases, the cap is $1 million, plus attorney’s fees.
That cap was highlighted last month when a jury awarded $33 million to Fred Weichel, who was wrongfully convicted of murder and served 36 years in prison. Although this was a great moral victory for Weichel, who has always maintained his innocence, his financial gain was limited to $1 million.
A survey 2018 of states showed that Massachusetts had some of the lowest caps in the country for civil cases against the state or a municipality.
Evans had no idea what awaited her when she was loaded into an ambulance and taken to hospital on June 2. She spent hours in the hospital and left with her sore arm in a sling. It was impossible to manipulate a camera.
Evans’ income is modest enough to qualify her for MassHealth, the state health care insurer for low-income residents. He covered his medical expenses, which include ongoing physical therapy.
For this cover, Evans said she was grateful.
But her loss of income plunged her into debt, most of it on credit cards. Days after his injury, Evans filed a lawsuit with the City of Boston. And it’s a good thing she acted so quickly. The law requires people injured on the streets or sidewalks to notify the state or municipality of their claim within 30 days, one of the shortest notice periods of any category mandated by law. There is no doubt that many valid claims are extinguished for not meeting this tight deadline.
And more people are injured on the streets and sidewalks than you might think: About 25 claims are filed with the City of Boston each month.
Evans got the name of an experienced personal injury law firm, Parker Scheer LLP, from a friend of a friend. But, when they met, the lawyers told Evans they couldn’t take the case.
In fact, the lawyers said that no lawyer would take the case. Personal injury lawyers are usually paid one-third of any settlement or jury prize they win. But lawyers can’t make a living representing clients when the potential payout is capped at $1,666.
The legal consultation with Evans was primarily to seek out other potential defendants – those not subject to the cap because they are private, such as a landlord who had assumed responsibility for maintaining that section of sidewalk, or a utility company that was performing work in the area where the accident occurred.
But there were no other potential defendants and Evans, without a lawyer and strapped for cash, accepted a $2,500 settlement from the city last month.
“It just seemed like the process was dragging on and could go on forever,” Evans said. “It was really frustrating and I needed the money to pay my bills.”
Some of the attorneys I spoke with said that one of the main reasons for raising the cap was to urge state and local governments to keep sidewalks and streets in good condition, otherwise they would face serious financial consequences.
Another good reason, attorney Sam Segal said, is to shift the burden of financial loss from the one person who gets hurt onto all taxpayers.
Geoff Beckwith, executive director of the Massachusetts Municipal Association, said the current law strikes an appropriate balance between the interests of individuals and taxpayers.
“If the cap is increased, it will lead to a significant increase in costs for the taxpayer,” he said.
I hope I never suffer the kind of fall that Evans suffered, but if I do, and lose income as a result (because I can’t type with one hand), I want to be fully compensated by the municipality that failed to repair a broken sidewalk.
Sovereign immunity? It belongs in the history books, not the law books.