Town Held Immune From Private Nuisance Claim Under the Massachusetts Tort Claims Act

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Town Held Immune From Private Nuisance Claim Under the Massachusetts Tort Claims Act: Glasman v. Town of Sharon, NOCV2009-1050 (Mass. Super. Ct., July 22, 2011).

PD&P successfully argued a Motion for Summary Judgment in a significant nuisance case. The litigation stemmed from a roadwork reconstruction project completed on North Main Street (a/k/a Route 27) in Sharon abutting plaintiffs’ property. Plaintiffs alleged that, as a result of the project, their property suffered water intrusion and their driveway slope was dramatically increased. Plaintiffs’ damage claim was heightened by the fact that they have a minor child whose wheelchair access to the property was negatively impacted by the project. Plaintiffs’ Complaint, which sounded in private nuisance, was filed in 2007, prior to the decision in Morrissey v. New England Deaconess Assoc., 450 Mass. 580 (2010). There, the Supreme Judicial Court reversed numerous Appeals Court decisions and ruled that private nuisance claims against municipalities are subject to the provisions of the Massachusetts Tort Claims Act (“MTCA”), M.G.L. c. 258, §§ 1, et seq. The SJC also ruled that its decision was to be applied retroactively. Plaintiffs did not make timely statutory presentment of their private nuisance claim either to the Town or to the co-defendant, Massachusetts Highway Department.

In its Motion for Summary Judgment, the Town argued that plaintiffs’ private nuisance claim should be dismissed for failure to make written presentment within two years. M.G.L. c. 258, § 4. Alternatively, the Town invoked its immunity from claims based on negligent design under the “discretionary function” exception of the MTCA. M.G.L. c. 258, § 10(b).

The Superior Court granted the Town’s Motion for Summary Judgment on the second ground only. Noting that the manner in which the project was designed and built involved issues of policy-making and planning protected by the “discretionary function” exception, the Court held the Town immune from liability for private nuisance under Section 10(b) of the MTCA. The Court declined to rule, however, on the Town’s presentment argument, leaving undecided the issue of whether the retroactivity of Morrissey applies to all provisions of the MTCA or merely to the substantive immunity protections. This dichotomy was highlighted in the recent case of Shapiro v. City of Worcester, WOCV2008-00771, where the Worcester Superior Court (D. Curran, J.), refused to apply the presentment requirement retroactively on the grounds of “fairness.” The City appealed his decision under the doctrine of present execution. The Appeals Court will likely hear argument on the issue later this fall. Shapiro v. City of Worcester, App. Ct. No. 2011-P-0488.

Published in Developments in Municipal Law Fall 2011 Newsletter.