Town Held Immune For Fire Department Inspections


Town Held Immune For Fire Department Inspections: Friends of the Plymouth Pound, Inc. v. Town of Plymouth, PLCV2011­00763 (Mass. Super. Ct., Nov. 7, 2011)

PD&P recently prevailed in a suit that arose out of a fund-raising carnival held in the Town of Plymouth. Town officials issued permits for carnival operations subject to several conditions, including the condition that no carnival workers could sleep in overnight trailers or mobile bunkhouses that did not meet applicable fire safety standards. After the carnival opened, a Fire Department inspection revealed that the mobile bunkhouses in which the carnival workers intended to sleep were not equipped with fire sprinklers as mandated by the state fire code. The Fire Department accordingly ordered the removal of the mobile bunkhouses from the carnival site under the threat of closure. Carnival workers begrudgingly complied and, thereafter, were forced to secure alternative accommodations.

After the carnival ended, the sponsor brought suit against the Town of Plymouth for wrongfully threatening to shut the carnival down and for forcing the carnival workers to incur motel and other related expenses. On behalf of the Town, PD&P moved to dismiss plaintiff’s Complaint on the grounds of municipal immunity under the Massachusetts Tort Claims Act (“MTCA”), G.L. c. 258, §§ 1, et seq. Specifically, Section 10(e) of the MTCA protects a public employer from any claim “based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization.” In its Motion to Dismiss, the Town argued that the alleged conduct of its employees fell squarely within the protection of Section 10(e) because the actions in question could all traced back to the issuance of the original permit. Plaintiff argued, in opposition, that the conduct of the Fire Department, as opposed to the issuance of the permits, was the actual cause of the harm and, therefore, dismissal under Section 10(e) was inappropriate.

The Superior Court agreed with the Town and allowed its Motion to Dismiss, noting that plaintiff’s allegations were all “based upon” the issuance of a permit within the meaning of G.L. c. 258. § 10(e). In light of the limited number of decisions rendered to date interpreting the immunity preserved in Section 10(e), the Friends of the Plymouth Pound case should prove helpful in defending future claims in which suit is brought against a municipality based upon the issuance, denial, etc., of any permit, license or similar authorization.

Published in Developments in Municipal Law Winter 2012 Newsletter.