1:6. Public way Major case summaries
Research References

West's Key Number Digest, Automobiles &key;332

C.J.S., Motor Vehicles §§1382 to 1394

Com. v. Hart, 26 Mass. App. Ct. 235, 525 N.E.2d 1345 (1988).

Facts: Hart drew the attention of two Woburn police officers on routine patrol because he was driving his car along Dragon Court, a road, without his headlights. A flash of their cruiser's headlights evoked no response from the defendant. When the police put on the roof-top flasher, Hart ducked into a parking lot that belonged to his employer, Chomerics, Inc., stopped his car and stepped out. The police followed and, after some questions, administered field sobriety tests which Hart dramatically failed.

Dragon Court, from its point of beginning and for a distance of 1,933 feet, is a public way, having been so laid out in 1852. It proceeds thereafter as a private way until, something in excess of 2,000 feet later, it comes to a dead end at Interstate Route 93. Physically, Dragon Court does not alter as it turns from a public to private way. It has an asphalt surface and some street illumination. Along the public stretch there are some houses and commercial uses. Three deadend cross streets run off the public portion of Dragon Court. On both sides of the private portion of Dragon Court are various commercial buildings. No gate or sign marks the transition of Dragon Court from public to private way. Affixed to a utility pole located at the mouth of a driveway to the Chomerics building and parking lot there was a sign (a little bigger than a standard no parking sign which also adorned the pole) that read: “Private Property/Chomerics Employees and Authorized Persons Only.” As the sign was oriented, it appeared to pertain to the fenced-in Chomerics parking lot. Employees, customers, service personnel, vendors, deliverymen, and other callers with a business purpose used the private stretch of Dragon Court to reach their destinations. There was evidence that Chomerics maintained a gate on Dragon Court although it is not clear that the gate ever barred Dragon Court, as opposed to the entrance to Chomerics' fenced-in grounds. The point at which Hart was first observed by the police was well into the private portion of Dragon Court. His trip had begun from the Chomerics premises to which he made his retreat.

Held: The findings which the evidence warranted—intersecting streets, general use by the public, a broad category of business visitors, and only occasional closing off (if any)—made Dragon Court at least as accessible to the public. Those characteristics of the way place it within the reach of the statute as amended in 1961. The instant case is particularly strong for the categorization of Dragon Court as a way within the scope of §24(1)(a)(1) because there were a variety of business abutters along both sides of the private portion of the way. It is the status of the way, not the status of the driver, which the statute defines (parenthetically, the defendant was an employee of Chomerics). No specific license or invitation need be granted to the particular driver charged with violating the statute, i.e., it is sufficient if the physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel to invitees or licensees of the abutters.

Com. v. Smithson, 41 Mass. App. Ct. 545, 672 N.E.2d 16 (1996).

Facts: The defendant was charged with motor vehicle homicide and operating to endanger after the automobile he was driving overturned, killing one of the passengers. The accident occurred on Memorial Day, May 29, 1995. During that weekend, a “pig roast” and party were held at Brewster Sand & Gravel, a privately owned sand and gravel pit-stump dump facility located in Brewster. Although the business was generally open to the public during the week, it was closed from noon on Saturday, May 27 through Monday, May 29, 1995, in observance of the Memorial Day holiday.

Brewster Sand & Gravel is located adjacent to Freeman's Way, a paved, public way in the town of Brewster. It consists of approximately sixty to seventy acres of land, and is in the business of selling sand and gravel and accepting certain types of brush and debris for dumping. There is a sand and gravel “haul road” leading from Freeman's Way to the main gate of Brewster Sand & Gravel, which is located approximately 100 feet from Freeman's Way. There is a sign posted on the fence connected to the gate, which sets out the facility's business hours. There is also a utility pole with a halogen light affixed to the top.

Inside the gate, the road continues through the premises until it reaches a sand pit area, some 1,000 feet north of Freeman's Way. There are two fire hydrants along the road. A line of telephone poles runs parallel to it. Approximately 650 feet north of Freeman's Way, and directly beside the haul road, are a number of buildings grouped together, including a trailer which functions as the office for the facility, a storage garage, and a utility building. At the end of the road is the actual sand pit, or excavation area. It is on this haul road that the fatal accident occurred.

The Memorial Day “pig roast” was organized by an employee of Brewster Sand & Gravel, with the permission of the facility's owner. Over the course of the weekend, more than fifty guests attended the party; some actually camped out in the sand pit area at the rear of the property.

Held: It is not disputed that Brewster Sand & Gravel is a privately owned facility which was not open for business on May 29, 1995. The main gate, when closed, blocks the road into the facility. The presence of a main gate entrance suggests to the public that the area beyond the gate is not accessible at all times. This is true whether the gate is open or closed. Moreover, a review of the photographs introduced at trial reveals that there is a section of chain link fencing directly to the left of the gate. Attached to the fence is a large sign which reads: “Business hours: Mon.- Fri. 7 A.M.-4 P.M. Saturdays 7 A.M.-Noon.” The sign is clearly visible from the road as one approaches the entrance, whether the gate is open or closed. Accordingly, anyone approaching the facility via the road would be alerted to the fact that Brewster Sand & Gravel was not open to the public seven days a week, twenty-four hours a day, but rather, only during generally accepted business hours for a business of its kind.

The court held that the physical circumstances surrounding the gravel haul road running through Brewster Sand & Gravel on May 29, 1995, were not sufficient to create a reasonable expectation among members of the public that, on that particular day, they were welcome to drive through the main gate of the facility and continue along the gravel haul road some 650 feet past the office and utility buildings and into the sand pit area. The fact that the accident occurred on a Monday, albeit a holiday, did not alter this determination. One should reasonably anticipate that a business, which was open only until noon on Saturdays and closed on Sundays, would also be closed on a national holiday such as Memorial Day. The court held therefore, that the road was not a way “to which members of the public have access as invitees or licensees” within the meaning of the relevant statutes.

(Taken from Drunk Driving Defense in Massachusetts, pg. 28-30)