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On July 10, 2006, Melina Del Valle (38) of Boston was killed when a nearly 3000 pound ceiling panel feel from the recently completed I 90/Ted William’s Connector Tunnel in Boston’s Central Artery. The tragedy follows a decade of concerns over escalating costs related to the tunnel, which included at least one indictment and conviction for false plan submission.

Massachusetts Governor, Mitt Romney, undertook investigation, as did Attorney General Tom Reilly, federal National Transportation Safety Board and others. A criminal investigation is underway.

At the nucleus of the issue lies a design involving the suspension of three thousand pound celing panels in tunnel and a questionable suspension system. The panels appear to have been suspended by a system using bolt and epoxy. The epoxy that was used on the bolts is one focus of the investigations.

The civil liability microscope uses a similar but also additional lens. There are many contractors and subcontractors involved in the Big Dig project. Modern Continental and Bechtel are the major ones. The entire project was initially commissioned by the Massachusetts Turnpike Authority–a body politic/municipal corporation. Portions of the tunnel are turned over to the Massachusetts Highway Department upon completion, acceptance and opening to the public. Once turned over, they become public ways.

The legal implications involve an analysis of the parties who own and maintain the areas of the tunnel that have failed. Where injuries are alleged to have occured from a design defect in a public way–such as using enormous concrete ceiling panels–could implicate Massachusetts General Law, Chapter 84, which governs claims of defect in a public way. Under the provisions of M.G.L. C. 84 section 15, recovery for injuries are limited to $5000. In the event that the highway has not been turned over to the Massachusetts Highway Department and is still held by the Massachusetts Turnpike Authority, there may be a private action filed against the Turnpike Authority, itself.

Most importantly, however, is that an action for tort damages arising from the “design, planning, construction or general administration” of an improvement to real property must be brought within six years. In the case of public propery, this six years begins running at the earliest of (1) the official acceptance of the project by the public agency, (2) the opening of the real property to public use, (3) the acceptance by the contractor of a final estimate prepared by the public agency or (4) substantial completion of the work and the taking of the possesion for occupancy by the awarding authority. See M.G.L. Ch. 260 s. 2B. This obviously proposes a very significant concern for any injuries arising from defects in the tunnel. Portions of the tunnel opened to the public in 2001. This may be a date upon which the limitation set forth in chapter 260 may be started and could mean that the latest of time a lawsuit may be brought is 2007. This does not take into account various theories that may arise from the maintanence of the tunnel. However, it is something that any litigant should be aware of.

For more information and analysis related to the Big Dig tunnel project, please contact the author.

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