Damage to Driveway, Culvert

[hwolff]

My question involves a right-of-way in the state of: Massachusetts

October of 2011 Town snowplow gets increasingly off the road and digs up my "upstream" neighbors lawn, my lawn and is eventually stopped when the plow lifts the corner of my two-year-old asphalt driveway. If the driveway hadn't stopped him, he would have taken out my lightpole, a couple saplings and two mailboxes.

I complain and a week later, the town sends a two person crew with a backhoe to put things back together. During this event, the driver (town employee) of the backhoe is rude and dismissive of the problem. He even threatens me when I question his ability to effect quality repairs (it turns out he was the driver of the snowplow...) In any case, the corner of the driveway is pushed back down (but cracked and ruined). The big hole dug in the lawn is filled in to some extent but in the process the end of the drainage culvert which runs under the end of the driveway parallel to the street is half crushed, and the handlaid stone work around it is displaced. The culvert is also two years old and was replaced at my expense when the driveway was repaved.

The second town employee assured me that they would return in the spring and fix everything.

Spring came and went. I got an estimate for the repairs from the contractor who installed the culvert and paved the driveway. Sent it to the town manager. At first he ignored it. Then he punted it to the Board of Selectman. I attended the meeting. They thanked me for the photos and said they would get back to me.

Just got a letter that denies my request to have the town pay the private contractor to repair the damage "to the section of your driveway that lies within the Town's Right-of-Way."

They say the viewed the damage, scrutinized the quote, and felt the amount of money was excessive. They say they will ensure the Highway Department employees will be "professional and courteous" and they with contact me to make me "aware of the day they will be on site to make the repairs"

My questions:

Do I have the right to refuse to have them touch my driveway and culvert? What are my chances if I have the driveway and culvert repaired at my expense and then sue them in small claims court? Don't I have the right to choose someone I am confident will put my driveway as close as possible to the original? (Because of the nature of asphalt, the driveway will always look "patched" because it requires specialized equipment not available locally to effect a seamless repair.)

[Mr. Knowitall]

It looks like you can sue for property damage caused by the negligence of a municipal employee; see MGL c. 248. I'm not going to offer a full analysis of governmental immunity issues - that's something best done by a local real estate lawyer.

I expect that the municipality can repair the culvert with or without your consent - that would typically fall within their rights and duties. As for the driveway, if you refuse to let the workers touch it I expect that they will abide by your wishes - but should you prevail in court you can expect to recover only the reasonable cost of repair, not the higher cost of a company you believe may do a better job, nor the cost of bringing in specialized equipment to effect a seamless repair.