Civil action commenced in the Superior
Court Department on June 21, 2019.
The case was heard by Thomas J. Perrino,
J., on motions for summary judgment.
J. Alexander Watt
for the plaintiff.
Deborah I. Ecker
for the defendants.
WOLOHOJIAN, J. At issue is whether the plaintiff, Robert
Fratus, Jr., has a private right of action to require the town of Harwich and
its board of selectmen (collectively, town) to widen and pave two roads
abutting his property and upon which he travels. Although Fratus acknowledges that there are
no specific defects in the two roads, and that he has not been injured by
traveling on them, he nonetheless contends that he has a private right of
action as an abutter and traveler to compel the town to maintain the roads
"so that they may be reasonably safe and convenient for
travelers." G. L. c. 84,
§ 1. Ruling on cross motions for
summary judgment, a Superior Court judge disagreed, and dismissed Fratus's
complaint for declaratory judgment and mandamus relief. We affirm.
Background. In 1996, Fratus bought land and built a house
in Harwich, at 74 Seth Whitefield Road, which is a county road. At that time, the town required him to widen
certain parts of the road in order to obtain access to his home. In 2016, when Fratus bought more property on
Seth Whitefield Road to create a subdivision, the town required him to extend
the improvements to that point.
Northerly from Fratus's property, Seth Whitefield Road intersects with Round
Cove Road. The 900-foot stretch of Round
Cove Road running easterly from the intersection is unpaved and about ten feet
In the spring of 2019, Fratus petitioned
the Harwich board of selectmen (board) to (1) widen and harden the unpaved
portion of Round Cove Road and (2) resurface Seth Whitefield Road from Fratus's
subdivision up to Round Cove Road.
Fratus asserts that Round Cove Road is too narrow for two cars to pass
one another in opposite directions, that it is dangerous for pedestrians, and
that improvements would provide easier access to Hawksnest State Park for
emergency vehicles. As to Seth
Whitefield Road, he contends that the unpaved portion should be surfaced with
Following a public hearing, the board
denied Fratus's petition. Fratus then
filed the underlying suit, seeking a declaratory judgment that the town had a
duty to improve the two roads and seeking a writ of mandamus ordering the town
to do so. On cross motions for summary
judgment, a Superior Court judge ruled that Fratus lacked standing, and ordered
the entry of judgment in favor of the town.
This appeal followed.
Discussion. Fratus argues that he has a private right of
action, under G. L. c. 84, § 1, to compel the town to improve
and repair roads that abut his property and over which he travels. The statute, which deals with the funding for
road repairs, provides:
and town ways . . . shall be kept in repair at the expense of the
town in which they are situated, so that they may be reasonably safe and
convenient for travelers, with their horses, teams, vehicles and carriages at
all seasons. A city or town shall submit
a letter of request for such repair and for approval by the [S]tate department
of highways. Upon receipt of such
approval, the city or town shall be reimbursed by the [C]ommonwealth from
monies which may be appropriated therefor by the [C]ommonwealth and the
[F]ederal government to defray expenses of such repairs for safety
programming. Such reimbursement will not
create liability, of any kind, either civil or criminal on the part of the
[C]ommonwealth or the [F]ederal government."
might be said about the statute, it does not create an explicit private right
of enforcement for abutters or travelers should the town fail to make required
repairs. See Sturdy v. Planning Bd.
of Hingham, 32 Mass. App. Ct. 72, 77 (1992).
The question thus becomes whether there is
an implied private right of action for abutters and travelers who have suffered
no injury, such as Fratus. "A
statutory duty by itself does not necessarily imply a judicial remedy to
challenge the executive branch's compliance with that
duty. . . . The Legislature
often imposes obligations on officials in the executive branch to act in
accordance with specified standards, but it does not always create a private
right of action and waive sovereign immunity to allow private parties to
enforce compliance with those standards in a judicial or administrative
adjudication." Boston Med. Ctr.
Corp. v. Secretary of the Executive Office of Health & Human Servs., 463
Mass. 447, 455–456 (2012). Accordingly,
although we may "infer an implied private right of action unless the
Legislature explicitly prohibits us from doing so," Salvas v. Wal-Mart
Stores, Inc., 452 Mass. 337, 373 (2008), "we have generally been reluctant
to infer a private cause of action from a statute in the absence of some
indication from the Legislature supporting such an inference," Loffredo v.
Center for Addictive Behaviors, 426 Mass. 541, 544 (1998).
Here, the statutory indications run
against finding an implied right of action for those who, like Fratus, merely
travel over a road or have property abutting it. To begin with, another section in the same
chapter of the General Laws does create a private cause of action for a
particular class of individuals: persons
who "sustain bodily injury or damage in his property by reason of a
defect or a want of repair . . . upon a way." G. L. c. 84, § 15. Where the Legislature has explicitly created
a remedy for travelers who are injured, there is no reason to think that it
intended to create an implied remedy for those who are not. See Transamerica Mtge. Advisors, Inc. v.
Lewis, 444 U.S. 11, 19 (1979) ("where a statute expressly provides a
particular remedy or remedies, a court must be chary of reading others into
it"). Moreover, "not only
injured persons, but also certain public officials are charged with making sure
the town abides by its obligations" to repair the ways. Sturdy, 32 Mass. App. Ct. at 77. Specifically, under G. L. c. 84,
§ 22, a town may be required to pay a fine if it "neglects to repair
any way which it is obliged to keep in repair." In addition, surveyors of highways and road
commissioners have the burden of ensuring that public ways remain clear and in
repair, and may hire persons to make such repairs even if the town has failed
to vote sufficient funds. G. L.
c. 84, § 7. See Sturdy, supra.
Fratus also argues that G. L.
c. 82, § 17, creates a private cause of action to compel the town
to repair or improve the roads. That
statute provides cities and towns with discretionary authority to consider
"petitions for altering, relocating or making specific repairs upon a
highway within the town limits."
Id. See RCA Dev., Inc. v. Zoning
Bd. of Appeals of Brockton, 482 Mass. 156, 160–161 (2019), quoting Commonwealth
v. Dalton, 467 Mass. 555, 558 (2014) ("The use of the word 'may' in a
statute is generally permissive, reflecting the Legislature's intent to grant
discretion or permission to make a finding or authorize an act"). Here -- even accepting Fratus's
representation that he petitioned the board pursuant to § 177 -- the board
exercised its discretion in his favor and decided to consider his request. In any event, § 17 does not create an
express or implied right of action to compel improvements or repairs to the
roads. And, given the deficiencies in
the appellate record, see note , supra, the board's decision on the merits
of Fratus's petition are not before us.
Finally, we turn to Fratus's request for
mandamus relief. "[A] court may not
compel performance of a discretionary act, . . . and . . .
relief in the nature of mandamus is extraordinary and may not be granted except
to prevent a failure of justice in instances where there is no other adequate
remedy." Lutheran Serv. Ass'n of
New England, Inc. v. Metropolitan Dist. Comm'n, 397 Mass. 341, 344 (1986). Municipalities have "[m]uch discretion"
in determining what repairs are necessary to a given road in light of the
circumstances. Sturdy, 32 Mass. App. Ct.
at 76. "It is well established that
a town or city is not bound to keep its ways perfect. The burden would be too heavy. It is enough that they are reasonably safe
and convenient for travel." Cannon
v. Brookline, 256 Mass. 468, 470 (1926).
This standard of duty "is not an absolute or inflexible one, but
should be given an application which is related to the character of the way and
to the kind and amount of travel at the location of the alleged
defect." Sturdy, supra, quoting
Green v. Wilmington, 339 Mass. 142, 144 (1959), and MacDonald v. Boston, 318
Mass. 618, 619 (1945). Given the
discretionary nature of the town's authority to maintain and repair roads,
mandamus was not an available form of relief to Fratus with respect to
G. L. c. 84, § 1.
Similarly, given that the Legislature has left to cities and towns the
discretion whether to consider a petition to improve a road, mandamus is not an
available remedy with respect to G. L. c. 82, § 17. See Boxford v. Massachusetts Highway Dep't,
458 Mass. 596, 606 (2010) ("Relief in the nature of mandamus is not
appropriate where the acts in question are discretionary rather than
Accordingly, because Fratus, as an abutter
and uninjured traveler, does not have a private right of action to compel the
town to make improvements or repairs, nor was he entitled to mandamus relief,
judgment was properly entered in favor of the town.
 Board of selectmen of Harwich.
 On cross motions for summary judgment,
we recite the facts in the light most favorable to Fratus, "against whom
judgment is to enter" (citation omitted).
Winbrook Communication Servs., Inc. v. United States Liab. Ins. Co., 89
Mass. App. Ct. 550, 553 (2016).
 Sometimes called Hawksnest Road.
 Fratus has not provided any materials
from the proceedings before the board; thus, we do not know whether Fratus
articulated these arguments to the town.
The town, however, has not argued that the arguments are waived and, on
that basis, we have reached them.
 Whether Fratus's requested
changes to the roads are properly considered repairs (as he styles them) rather
than improvements, is a question that neither party has briefed, nor one we
 "The city council of a city and
the selectmen or road commissioners of a town may exercise original
jurisdiction, concurrent with the county commissioners, of petitions for
altering, relocating or making specific repairs upon a highway within the town
limits, but except as to such parts thereof as, by such action, become
unnecessary for public use, a city or town shall not discontinue any highway or
diminish the width thereof, nor shall it assess upon the county any part of the
expense of altering, relocating or repairing.
The proceedings of cities and towns and their officers hereunder shall
be the same as in the laying out of highways or town ways. Nothing in sections seventeen to nineteen,
inclusive, shall diminish the powers over highways granted to a city by its
charter." G. L. c. 82,
 Fratus has provided no materials
regarding his petition to the board, any hearing(s) conducted regarding the
petition, any information placed before, or considered by, the board, or the board's
decision or rationale.