Instruction 3.280, Criminal Model Jury Instructions for Use in the District Court

PUBLIC WAY

I. SHORT-FORM INSTRUCTION

This short-form instruction may be used where the evidence involves only a public street or highway,

and does not raise any issue of the statutory alternatives.

The Commonwealth must prove beyond a reasonable doubt that the

defendant operated a motor vehicle on a public way.

Any street or highway that is open to the public and is controlled and

maintained by some level of government is a “public way.” This would

include, for example, interstate and state highways as well as municipal

streets and roads.

In determining whether any particular street is a public way, you may

consider whether it has some of the usual indications of a public way — for

example, whether it is paved, whether it has street lights, street signs,

curbing and fire hydrants, whether there are buildings along the street,

whether it has any crossroads intersecting it, and whether it is publicly

maintained.

II. FULL INSTRUCTION

The Commonwealth must prove beyond a reasonable doubt that the

defendant operated a motor vehicle in one of three places: on a public

way, or in a place to which the public has a right of access, or in a place to

which members of the public have access as invitees or licensees.

You will note that the statute treats these three types of places as

alternatives. If any one of the alternatives is proved, then this element of

the offense is satisfied. Let me discuss the three alternatives one at a time.

Our law defines a public “way” as:

“any public highway,

[or a] private way [that is] laid out under authority of [a]

statute,

[or a] way dedicated to public use,

or [a] way [that is] under [the] control

of park commissioners or [a] body having [similar] powers.”

G.L. c. 90, § 1.

Interstate and state highways, as well as municipal streets and roads,

would all be included in this definition. In determining whether a road is a

public way, you may consider whether it has some of the usual indications

of a public way — for example, whether it is paved, whether it has street

lights, street signs, traffic signals, curbing and fire hydrants, whether there

are abutting houses or businesses, whether it has any crossroads

intersecting it, whether it is publicly maintained, and whether there is an

absence of signs prohibiting public access.

Commonwealth v. Charland, 338 Mass. 742, 744, 157 N.E.2d 538, 539 (1959) (signs, signals,

curbing, crossroads); Commonwealth v. Mara, 257 Mass. 198, 208-210, 153 N.E. 793, 795 (1926)

(street lights, paving, curbing, houses, crossroads, traffic); Danforth v. Durell, 8 Allen 242, 244 (1864)

(paved roads, no sign that anyone excluded); Commonwealth v. Muise, 28 Mass. App. Ct. 964, 551

N.E.2d 1224 (1990) (usual indicia of public way include paved roads, absence of signs prohibiting

access, street lights, curbing, abutting houses or businesses, crossroads, traffic, signs, signals,

lighting and hydrants; unnamed, paved private way into trailer park with abutting residential trailers,

and no signs prohibiting access, was public way); Commonwealth v. Colby, 23 Mass. App. Ct. 1008,

1010, 505 N.E.2d 218, 219-220 (1987) (paved road, lighting, hydrants); Commonwealth v. Hazelton,

11 Mass. App. Ct. 899, 900, 413 N.E.2d 1144, 1145 (1980) (regularly patrolled by police, “no parking”

signs, municipally paved and plowed; photo of way admissible).

The second alternative under the statute is a place that is not a “way,”

but where the general public still has a right of access by motor vehicle.

This might include, for example, a parking lot that is adjacent to city hall, or

the parking area of a public park.

The third alternative is a place to which members of the public have

access as invitees or licensees. The difference between invitees and

licensees is not important here. Both are persons who are lawfully in a

place at the invitation of the owner, or at least with the owner’s tolerance.

Some examples of locations where the public has access as invitees or

licensees include shopping centers, roadside fuel stops, parking lots, and

restaurant parking lots.

Bruggeman v. McMullen, 26 Mass. App. Ct. 963, 964, 526 N.E.2d 1338, 1339 (1988) (private way

may be open to the public at large for ordinary travel even though there is somewhat less than the

broad travel easement that the public enjoys on public ways); Commonwealth v. Hart, 26 Mass. App.

Ct. 235, 525 N.E.2d 1345 (1988) (private way regularly used to access commercial abutters by

employees, customers and vendors is a “place to which members of the public have access as

invitees or licensees”); State v. Brusseau, 33 Or. App. 501, 577 P.2d 529 (1978) (reckless operation

statute “modeled in part after a similar Massachusetts statute” and covering “premises open to the

public” is applicable to private road in private apartment complex frequently used as thru street by

general public). See Commonwealth v. Venceslau C. Pires, 44 Mass. App. Ct. 1101, 687 N.E.2d 651

(No. 97-P-79, Nov. 21, 1997) (unpublished opinion under Appeals Court Rule 1:28) (public park’s

parking lot remains “a way to which the public had access as invitees or licensees” even when parking

is no longer permitted after sunset).

So if it is proved beyond a reasonable doubt that the defendant

operated a motor vehicle in any of these areas, then this element of the

offense has been proved.

SUPPLEMENTAL INSTRUCTIONS

1. Prima facie certificate. The law provides that a certificate from

the (Secretary of the State Public Works Commission) (Secretary

of the M.D.C.) (city or town clerk) is evidence that a particular

(state highway) (M.D.C. highway) (city or town way) is a public

way.

G.L. c. 233, § 79F. See Instruction 3.260 (Prima Facie Evidence).

Other official documents, while not prima facie evidence, are admissible as evidence

tending to show that a particular road is a public way. Hazelton, supra (conveying

deed, certificate of municipal acceptance, certificate that in municipal road directory).

2. Stipulation. In this case, the parties have agreed that

_________ is a public way, and therefore it is not necessary that

you have any evidence on that issue.

3. Distinction between invitees and licensees. An “invitee” is a person

who is at a place, usually a business establishment, at the

request or invitation of the owner and for the mutual benefit of

both — for example, a potential customer or restaurant patron.

A “licensee” is a person who is at a place with only the passive

permission of the owner and usually for the licensee’s benefit —

for example, a person driving on a private way that is commonly

used by the public without the owner’s objection.

Brosnan v. Koufman, 294 Mass. 495, 499, 2 N.E.2d 441, 443 (1936); Browler v.

Pacific Mills, 200 Mass. 364, 86 N.E. 767 (1909); Moffatt v. Kenny, 174 Mass. 311,

54 N.E. 850 (1899). See Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973)

(abolishing distinction in negligence law).