She fell on a Boston sidewalk, fractured her jaw, and got nothing from the city. Why?
The section of sidewalk where she fell has a history. It was paved long ago by the city of Boston with five-foot sections of concrete.
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Next to where Pagliarulo fell, a tree was planted in a carved-out section of the sidewalk. The tree's roots grew under the sidewalk and gradually lifted a section of concrete a couple of inches higher than its surroundings.
Pagliarulo and a former neighbor say they reported the tripping hazard to the city of Boston a couple of years ago. They told me the city responded by placing a couple of shovelfuls of asphalt along each protruding lip.
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I asked the city of Boston what it did and when, and whether it received reports of a hazard. The city said it was working on my request but did not answer my questions in time for publication.
The asphalt patch helped but didn't eliminate the hazard, according to neighbors, who showed me pictures of the uneven and bumpy sidewalk.
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And the city seemed to confirm the hazard when, a couple of months after Pagliarulo's fall, it removed the tree and the section of sidewalk next to it, replacing both with a smooth expanse of asphalt.
Pagliarulo wants the city of Boston to pay at least some of her dental costs because she believes it was negligent in maintaining that section of sidewalk.
What, if anything, does the city owe her?
The dispute
: Property owners, including municipalities, have a legal duty to keep their property safe for those who use it. That's why almost all homeowners have liability insurance, in case, for example, someone catches their foot on an unrepaired defect on the front stairs.
But several laws passed long ago by the state Legislature are highly protective of municipalities, making it almost impossible for ordinary folks like Pagliarulo to get adequate compensation for injuries.
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I've previously written about frustrated victims who took nasty falls in the
There are three ways the law minimizes the number of cases brought against municipalities. First,
That's an extremely short notice period. By contrast,
In the days after her fall, Pagliarulo concentrated on merely surviving; it often felt like an hour-to-hour struggle. She had to be fed through a syringe and lost almost 25 pounds.
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For a while, three nieces took turns staying overnight with her. A devout Catholic, Pagliarulo spent much time in prayer. Liability was not foremost in her mind.
'I was just so concerned about staying alive,' she told me.
Pagliarulo, a widow and retired nurse, said she also felt disoriented and frequently cried. Tears came several times when we met and talked about her fall.
Neighbors on Denton Terrace, near Roslindale Square, rallied around her.
'She was in no shape to be researching liability or anything else,' neighbor Josh Jacks said in an interview.
After she fell on a Boston sidewalk and fractured her jaw, Tammy Pagliarulo (seated) got support from neighbors (from left) Kim Fanning, Josh Jacks, and Elana Wolkoff.
Jonathan Wiggs/Globe Staff
When she first contacted City Hall months later, Pagliarulo got one question from the legal department: When did she fall?
When she gave the November date, the legal department representative said she had missed the notice deadline and no claim could be made.
'But I was incapacitated,' she recalled telling him.
The legal department rep said he was sorry but there was nothing he could do, Pagliarulo said.
Neighbor Elana Wolkoff then found
But the city legal department told her the courts have narrowly defined 'incapacitated' in previous, precedent-setting cases.
Pagliarulo looked for a lawyer, but none were interested. The reason is the second way the law protects municipalities: a $5,000 cap on compensation.
Personal injury lawyers are paid one-third of any amount they win. But lawyers can't justify taking a case when the potential payout is limited to one-third of $5,000, or $1,666.
That cap was enacted in 1965 and hasn't been updated. If the cap was adjusted for inflation, it would be about $50,000 today, making it more feasible to hire a lawyer.
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Finally, the law disallows such cases unless the victim can show the defective sidewalk was previously reported to the city or town and that the municipality took no action. The law does not define defects.
The resolution
: After Pagliarulo's fall, City Councilor Enrique Pepén, whose district includes Roslindale, helped arrange for the removal of the tree and section of the sidewalk.
'It was definitely something that needed repair,' he said. 'It was a big hazard, and they leveled it out.'
When he found out about the 30-day notice requirement, Pepén said he was 'taken aback' by how short it is. 'It's not fair to citizens,' he said.
Pepén said he wants to collaborate with state lawmakers in reviewing the state laws governing such cases.
Bills to change the law get filed virtually every session of the Legislature, but none have passed.
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The takeaway
: The way the law favors cities and towns (and the state, too) is grounded in the centuries-old concept of sovereign immunity, which originated in England and is based on the antiquated notion that 'the King could do no wrong.'
Keeping those laws undisturbed saves money for cities and towns. And municipalities do not lack influence on Beacon Hill.
But imagine that you or a loved one were affected. You have thousands in medical or dental bills or you've lost income because you can't work, all because of a defective sidewalk and through no fault of your own.
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Wouldn't you want fair compensation?
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