In his more than 50 years as a hard-core cyclist, Bill Sykes has taken quite a few tumbles.
“Too many to count,” Sykes, 72, said matter-of-factly.
Minor scrapes and bruises (not to mention sore muscles) come with the territory when you log thousands of miles a year pedaling for fitness and fun.
But his crash on Aug. 27 on a publicly-maintained road in Halifax was different. It knocked him out and put him in the hospital for two days with a cracked pelvis. It damaged his hip badly enough for doctors to predict he’ll eventually need to surgically replace it.
It was also a painful collision with something called MGL Chapter 84, Section 15, a state law based on an ancient English legal concept known as sovereign immunity (“the King can do no wrong”).
Sykes went toppling over the handlebars because the back wheel of his bike suddenly got caught in a 5-inch deep pothole on River Street. The helmet he was wearing may have saved his life.
The Town of Halifax is responsible for maintaining River Street in safe condition. But the street was clearly unsafe when Sykes and a half dozen other cyclists came barreling along as they trained for the annual 440-mile Cycle against Suicide charity ride in Ireland 10 days later.
Ordinarily, when you’re injured because a property owner fails to maintain a safe place, you can sue for damages equal to the amount of your loss. That’s why most homeowners have liability insurance: in case someone gets hurt on their front stairs.
But it doesn’t work that way with Halifax and the 350 other municipalities in Massachusetts. Long ago, the state Legislature passed laws limiting their liability (and the state’s, too). They are sovereigns, heirs to a can-do-no-wrong legacy.
The immunity they enjoy is not absolute, but comes darn close. The state Legislature in 1965 set a cap of just $5,000 on this kind of municipal liability. Virtually every year there’s a bill filed to increase the cap to an amount more in line with today’s costs. But every year it fails.
If adjusted for inflation, $5,000 in 1965 would be close to $50,000 today.
Sykes is asking only for a few thousand dollars, well within the cap, but the town is refusing even that.
That’s because the state Legislature has imposed a “notice” requirement that makes it all but impossible for injured people like Sykes to get compensated.
Under the law, it’s not enough that Sykes prove his injuries were caused by a pothole. That he can easily do with a few seconds of a video that was taken by a backward-turned camera on the bike of a fellow cyclist. It shows Sykes going down suddenly and brutally hard. The video is a little grainy, but you can unmistakably identify a large pothole as the culprit.
Sykes also has a photo taken by a fellow cyclist showing the gaping pothole in the foreground and, a few yards past it, a sprawling Sykes being attended to by his fellow cyclists.
But none of this indisputable evidence is a help to Sykes under Chapter 84, Section 15 of the Massachusetts General Laws.
For Sykes to recover money damages, he must also prove the town had been put on notice of the specific pothole that caused him to crash, and that the town had done nothing about it.
That is a high bar. Sykes asked the town for evidence that someone had previously called in about the offending pothole, but there was none. (The pothole was patched after Sykes’s crash.)
“Our investigation … has revealed [the town] had no notice of this ‘defect’ … prior to your incident,” the town’s insurer wrote to Sykes. “For this reason we are unable to accept liability … and must respectfully deny your claim.”
Sykes replied that he found it hard to believe that “the fact that no one called in … about this one particular pothole absolves [the town] of any culpability.”
“I was injured because the Town of Halifax did not take care of its roads,” he wrote.
The Halifax town administrator declined comment.
Sykes, a Plymouth resident, said he cycles on River Street frequently because it’s a convenient cut-through between two relatively well-maintained state roads, Routes 58 and 105.
Sykes is fortunate that his health insurance (Medicare, plus a supplemental plan) covered all his expenses at Beth Israel Deaconess Hospital in Plymouth, where he was initially taken by ambulance, and Beth Israel Deaconess Medical Center in Boston, where he was admitted and treated.
Sykes, who has worked as a bike shop owner and bike race organizer since the 1970s, could barely move after the crash. He missed two months of earnings working part-time for his son’s events business, costing him thousands of dollars. He wants to be compensated for at least some of those lost earnings.
At first, he tried to hire a personal injury lawyer, but the $5,000 cap on recoveries makes that virtually impossible. Lawyers can’t justify putting time into a claim that promises, at best, a fee of about $1,650 (one-third of the settlement, the standard compensation for lawyers in such cases).
That’s when he contacted me.
I’ve written two previous columns on people unable to get fully compensated from the City of Boston for injuries they claimed were caused by defects in sidewalks. Bonnie Donohue this year paid the $30,000 cost of dental implants out of her pocket after she tripped and knocked out her front teeth in the Fort Point section of Boston.
Allison Evans lost about $10,000 in income as a freelance photographer last year after she fell in the Back Bay. (Without a lawyer and strapped for cash, she reluctantly accepted a $2,500 settlement from the city.)
It’s pretty clear what’s going on here. The state Legislature is more attuned to the needs of their fellow elected officials in municipal government than to the unfortunate few who take a hard fall. It would seem the Massachusetts Municipal Association, which lobbies on behalf of cities and towns, has the ear of the Legislature.
Any proposal to change the law “needs to consider its impacts on taxpayers,” the MMA said, a not-so-subtle message to anyone concerned about rising local property taxes.
This policy saves the vast majority of us a very small amount of money on our taxes. But Sykes and the others are not to blame for their injuries. The municipalities are.
Increasing the outdated liability cap and scrapping the notice requirement is long overdue.