Two for the T, three for you and me: the MBTA's exception to the three-year statute of limitations.

• Author: Smerage, Roger L.
• Position: Massachusetts Bay Transportation Authority

"The ability to move people and goods, swiftly, safely and conveniently, determines, to a large extent, the economic well-being of our Commonwealth.

In order to grow and prosper ... in order to attract new industry and new jobs ... we must provide a transportation system that adequately meets the needs of a modern industrial society.... ....

... We have worked at length to assure protection for all interests: the taxpayer, the commuter, the private transportation companies, and above all, the public interest. This is a program for all Massachusetts. The residents of Chicopee have as much to gain as the citizens of Cambridge. And the citizens of both have everything to lose if we do not act now to meet our Commonwealth's transportation crisis." (1)

1. INTRODUCTION

   During the evening rush hour on March 25, 2008, a CSX-owned, lumberladen freight car came loose from Cohenno, Inc.'s yard, rolled three miles down the tracks, and collided with a southbound Massachusetts Bay Transportation Authority (MBTA) commuter train north of Canton Junction, Massachusetts. (2) Approximately one hundred fifty passengers on the train sustained injuries in the crash, and though not one injury was life-threatening, many injuries affected passengers' necks and backs. (3) Under current Massachusetts law, any of those passengers would have three years to sue CSX or Cohenno, Inc. for their personal injuries. (4) When bringing lawsuits against the MBTA, however, the injured passengers would have two years, not three. (5) The MBTA receives this preferential treatment pursuant to a separate liability statute that has a shorter statute of limitations than the general limitations period. (6)

   On January 2, 2009, at the commencement of the first session of the 186th General Court of the Commonwealth of Massachusetts, Representative Eugene O'Flaherty of Chelsea proposed "An Act Relative to the Statute of Limitations for the Massachusetts Bay Transportation Authority." (7) O'Flaherty's proposed legislation, House of Representatives Bill 3284 (H.R. 3284), would amend chapter 161A (Chapter 161A), section 38 of the Massachusetts General Laws by extending the statute of limitations for personal injury, property damage, and wrongful death actions against the MBTA from two years to three. (8) Currently, the limitations period for these actions against the MBTA is one year shorter than the state's general limitations period for such actions. (9) H.R. 3284 would bring the MBTA's statute of limitations back in line with the general limitations period, as it was when Chapter 161A became law. (10)

   The need for this change arises from two historical developments since the creation of the MBTA. (11) In 1964, when the Massachusetts legislature enacted Chapter 161A and created the MBTA, chapter 260 (Chapter 260) of the Massachusetts General Laws established a two-year limitation on tort actions. (12) The discrepancy between the general statute of limitations and the one in Chapter 161A emerged in the 1970s when the Massachusetts legislature reworked Chapter 260 and adding an extra year to the general limitations period. (13) A decade and a half later, the state and the MBTA agreed to perform numerous service and infrastructure upgrades in connection with Boston's Central Artery/Third Harbor Tunnel (Big Dig) construction project. (14) Although some of these upgrades are complete, some remain outstanding, others have been withdrawn, and a few of those completed have left the communities that they serve unhappy. (15)

   This Note examines the creation of the MBTA and its special liability statute. (16) It also inspects the amendment of the general limitations statute for the types of claims the special MBTA statute covers. (17) The Note then explores the change from highway development to transit development in Boston's Southwest Corridor. (18) Then it reviews the agreements Massachusetts and the MBTA made during the planning, development, and construction of the Big Dig. (19) This Note analyzes whether the legislature should revoke the MBTA's limitations period exception in light of statutory history, the Supreme Judicial Court's misinterpretation of that history, and the MBTA's failure to perform its legally and non-legally binding obligations. (20) Given that the Massachusetts legislature did not intend to provide the MBTA with an exception to the limitations period and the MBTA has failed to provide necessary infrastructure upgrades that the state promised, the Joint Committee on Transportation should positively report on and the legislature should pass H.R. 3284 rather than leave it on the floor once more. (21)

2. HISTORY

   1. Creation of the MBTA

      In the years following World War II, as the war's prohibitive effect on automobile production ended, Massachusetts focused its plan for transportation improvements on highways. (22) Bostonians witnessed the construction of major highway projects in the city during the 1950s such as the Central Artery, Southwest Expressway, and the Boston section of the Massachusetts Turnpike. (23) Despite increased resistance to highway development at the start of the 1960s--a result of the displacement involved in the construction of these highways in places like Allston, Dorchester, and Milton--the city and state's plans still called for expanded highways to improve traffic flow into and around Boston. (24) To most government officials, more highways were the answer to the city's growing traffic woes. (25)

      As the population shifted away from downtown Boston and the automobile reemerged after World War II, Boston's traffic increased while patronage on the state's public transportation system declined. (26) The Metropolitan Transit Authority (MTA), a 1947 creation of the legislature that replaced the various private streetcar and subway lines, struggled to remain operational as ridership dropped. (27) By 1960, the MTA was operating with a budget deficit approaching $15 million. (28) Compounding the problem, the MTA had taken over a transit system that competitive private entities built in stages, resulting in different types of equipment used on the various streetcar and rapid transit lines. (29) BOSTON CASE 21 (1976) (describing Boston's early highway construction); see also John F Fitzgerald Expressway-Central Artery (I-93, US 1, and MA 3), http://www.bostonroads.com/roads/central-artery/ (last visited Mar. 20, 2009) (providing construction history of Boston's Central Artery). Other privately owned modes of transportation, such as bus lines and commuter railroads, also faced ridership problems; many were on the verge of closing. (30) With ridership into Boston at its lowest point in ninety years and railroads declaring bankruptcy or preparing discontinuation of service, state officials recognized that private rail companies would not be able to maintain the commuter rail without some form of public assistance. (31) According to 1963 and 1964 studies, the most important factor in reviving public transportation was increased service. (32)

      In light of the transportation problems in greater Boston, Governor Endicott Peabody appeared before a joint session of the Massachusetts legislature on April 21, 1964 and proposed a radical overhaul of the state's public transportation infrastructure. (33) Peabody sought to replace the existing MTA with the new MBTA in an attempt to bring control over the entire public transportation system under one roof. (34) By doing so, Peabody hoped that increased use of an efficient public transportation system would solve the financial crisis in the transportation sector and ease the burden on highway infrastructure. (35)

      Although reluctant at first, the legislature considered Peabody's proposed bill. (36) Less than two months later, the legislature enacted chapter 563 of the 1964 Acts and Resolves, a comprehensive piece of legislation that included the enactment of Chapter 161A, the enabling statute for the MBTA. (37) To ensure a smooth transition, the legislature abolished the MTA and transferred all its assets and liabilities to the MBTA. (38) The MBTA came into existence on August 3, 1964, and Peabody declared that the transportation problem was "on its way to solution." (39)

      As part of Chapter 161A, the legislature included a section on liability because the MBTA would be otherwise protected from liability under the doctrine of sovereign immunity. (40) The liability provision allowed passengers of the MBTA to sue the authority for personal injury, property damage, and wrongful death to the same extent that a passenger would be able to sue a private street railway. (41) Additionally, non-passengers who suffered tortious injury caused by the MBTA and were not contributorily negligent could also sue the MBTA. (42) Although expressly making the MBTA subject to civil liability to passengers and non-patrons, the statute limited the liability to two years. (43) The legislature, in enacting the two-year statute of limitations, subjected the MBTA to the same period of liability to which other private entities were subjected in 1964. (44) Strike-and-replace legislation discarded other provisions of the original Chapter 161A in 1999, but the liability provision remained in place, in the same language, with only a change in the section of the chapter under which it is located. (45)

   2. Amendment of Chapter 260

      In 1973, State Senator William Bulger introduced a petition to pass "[a]n Act applying the same statute of limitations to contract and tort actions." (46) Bulger's petition, Senate Bill 584 (S. 584), originally proposed a new six-year statute of limitations for actions covered by Chapter 260 section 2A. (47) The legislature reconsidered the engrossed bill and shortened the extension of the statute of limitations to three years. (48) The House and Senate concurred in the amendment, both chambers enacted the three-year modification, and the governor signed it into law. (49) Though the legislature...