## Facts

- A jointly owned utility pole stood on the Mathis family’s property in Franklin, Massachusetts, supported by two guy wires owned separately by Massachusetts Electric Company (MEC) and New England Telephone and Telegraph Company (NET).
- On June 23, 1983, Brian Mathis, age 16, climbed the pole to impress friends.
- He reached the top, grabbed a primary electrical wire, suffered an electrical shock, fell, and sustained severe injuries and burns.
- Mathis sued MEC for negligence; his mother asserted a derivative loss-of-consortium claim. NET was also named as a defendant.
- About four years after filing, plaintiffs moved to amend to add trespass counts based on an alleged lack of a recorded easement for the guy wires; the trial judge denied the motion.
- At trial, the jury found MEC breached its duty to foreseeable child trespassers under G.L. c. 231, § 85Q; NET was not negligent.
- The jury also found Mathis 75% comparatively negligent and MEC 25% at fault, resulting in judgment for defendants under the comparative negligence bar in G.L. c. 231, § 85.

## Issues

1. Whether Massachusetts’ comparative negligence statute, G.L. c. 231, § 85, applies to claims brought under the child trespasser statute, G.L. c. 231, § 85Q.
2. Whether the jury was properly instructed on the standard of care for assessing a minor plaintiff’s comparative negligence.
3. Whether the trial court abused its discretion by denying a late motion to amend to add trespass claims.

## Decision

- The Supreme Judicial Court affirmed judgment for MEC and NET.
- Comparative negligence under G.L. c. 231, § 85 applies to actions under the child trespasser statute, G.L. c. 231, § 85Q.
- The trial judge properly instructed the jury on the standard of care applicable to a child in assessing comparative negligence.
- The trial judge properly denied the late amendment to add trespass counts due to unexcused delay and lack of a viable recovery theory connected to the injury.

## Legal Principles

- The child trespasser statute, G.L. c. 231, § 85Q, imposes a negligence-based duty of reasonable care in specified circumstances; it does not create strict liability.
- Because § 85Q is negligence-based, comparative negligence under G.L. c. 231, § 85 is a permissible defense and may reduce or bar recovery.
- A minor’s comparative negligence is judged by the conduct expected of a reasonably careful child of similar age, intelligence, and experience under similar circumstances.
- A trial court may deny a motion to amend when it is filed after substantial delay without adequate explanation and when the proposed claims are futile or do not provide a viable causal basis for recovery.

## Conclusion

Massachusetts applied comparative negligence to a child-trespasser statutory negligence claim, upheld jury instructions using the traditional child standard of care, and sustained denial of a late, unsupported trespass amendment; the plaintiff’s 75% fault barred any recovery.


Mathis v. Mass. Elec. Co., 409 Mass. 256, 565 N.E.2d 1180 (1991)