
    Harold E. Keenan as Administrator of the Estate of Therese L. Keenan v. Commonwealth of Massachusetts
    Superior Court, Worcester, SS
    No. 071966
    Memorandum Dated February 14, 2008
   Lemire, James R., J.

The Plaintiff, Harold Keenan as administrator of the estate of Therese Keenan (Keenan) brought this action alleging among other things negligence and wrongful death against the Defendant, Commonwealth of Massachusetts (Commonwealth). The Commonwealth moves to dismiss the claims against it. For the following reasons, the Commonwealth’s motion is DENIED.

FACTUAL BACKGROUND

Therese Keenan was killed on August 12, 2005 in a collision on Route 12 in Oxford. The plaintiff alleges the Commonwealth was negligent in its design, construction and maintenance of Route 12 where it intersects with Depot Road and that such negligence resulted in the death of Therese Keenan.

The Commonwealth contends that Keenan’s claims are barred by the discretionary function exception of G.L.c. 258,-§ 10(b). In opposition, the plaintiff argues that the design, construction and/or maintenance of the intersection of Route 12 and Depot Road were not discretionaiy functions of the Commonwealth but were instead controlled by the standards set out in the Massachusetts Highway Department’s “Highway Design Manual.”

DISCUSSION

A complaint is not subject to dismissal if it can support relief under any theoiy of law. Eigerman v. Putnam Investments, Inc., 450 Mass. 281, 286 (2007). Further, a complaint should not be dismissed simply because it asserts a new or extreme theoiy of liability. New England Insulation Co. v. General Dynamics Corp., 26 Mass.App.Ct. 28, 30 (1988). All inferences should be drawn in the plaintiffs favor, and the complaint “is to be construed so as to do substantial justice . . .” Ourfalian v. Aro Mfg. Co., Inc., 31 Mass.App.Ct. 294, 296 (1991). After hearing and accepting the allegations in the complaint as true for purposes of this motion, Sullivan v. Chief Justice, 448 Mass. 15, 20-21 (2006) (complaint is sufficient against motion to dismiss if it appears that the plaintiff may be entitled to any form of relief), Berish v. Bernstein, 437 Mass. 252, 267 (2002), and cases cited, the Commonwealth’s motion must fail, as they have failed to show beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

ORDER

For the foregoing reasons, it is hereby ORDERED that the Commonwealth’s Motion to Dismiss is DENIED.  