Lawyers Journal

On Dec. 22, 2010, the Supreme Judicial Court, in Morrissey v. New England Deaconess Ass'n-Abundant Life Communities Inc., et al.¹ held that claims of private nuisance against the government are subject to the Massachusetts Tort Claims Act, G.L. c. 258. This is a landmark decision that will provide greater protection for state and local governments by capping damages at $100,000 and requiring the presentment of claims in writing within two years of the claim.

In addition, municipalities will be subject to greater protection through the exemptions applicable under the act, making it more difficult for plaintiffs to bring a claim for nuisance against governmental entities. In 1987, the Appeals Court had previously held, in Asiala v. Fitchburg,² that the act was not applicable to a nuisance claim, the amounts of damages allowed were unlimited, and no formal notice requirements or statutory exemptions prevented such lawsuits.

The recent Morrissey decision overruled the 1987 Appeals Court decision and held for the first time that nuisance claims were subject to the act's notice provisions found in Section 4 of Chapter 258. In addition to applying this new ruling retroactively, the opinion held that since the work at issue was conducted under a government-issued permit, liability was excluded under exemptions found in Section 10 of the act for government permitting and discretionary decisions by governmental entities.

Factual and procedural background

The case was decided on a motion to dismiss, so the facts alleged in the complaint were accepted as true. The complaint alleged that the land held in trust was negatively impacted by a senior living development on abutting land which required road widening of Route 2, authorized by the Massachusetts Highway Department in 2007. The complaint sought damages and injunctive relief from the commonwealth, and private parties, for mitigation associated with the alleged nuisance caused by the road alterations.

The commonwealth asserted that the claims involved the "discretionary" decision to issue a permit for construction on Route 2 and that the claims were barred by the exceptions to the waiver of sovereign immunity set forth in G. L. c. 258, § 10 (b) and (e), pertaining to a discretionary function and the issuance of a permit. Moreover, the commonwealth noted that plaintiff had failed to comply with the notice provisions of the act before filing the complaint, as grounds for dismissal.

The Superior Court in Morrissey denied the motion to dismiss the private nuisance claim, relying on the earlier Appeals Court holding that prior to the enactment of Chapter 258, "it was well established that a municipality was not immune from liability if it created or maintained a private nuisance on its land which caused injury to the real property of another."³

Justice Francis X. Spina, writing the Morrissey decision after direct appellate review was granted, reviewed the history of the Tort Claims Act, including the case history leading to its enactment in 1978. The decision noted "[a] private nuisance is actionable when a property owner creates, permits, or maintains a condition or activity on [its] property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another."⁴

Legal Precedent

In the earlier Asiala v. Fitchburg case, the Appeals Court had stated that "[d]ecades before the enactment of the act, it was well established that a municipality was not immune from liability if it created or maintained a private nuisance on its land which caused injury to the real property of another." Therefore, "it was not necessary to abolish immunity with respect to private nuisance claims [because] [t]he removal of the doctrine had already been accomplished by judicial decision."⁵

However, the SJC decision in Morrissey held that language in the act expressed "a clear legislative intent to abolish the common law doctrine of governmental immunity, and to replace it with a comprehensive statutory scheme that would govern the liability of public employers in tort actions, including those for private nuisance" in line with the history and purpose discussed in the opinion.

The language relied on stated: "The provisions of this act shall be construed liberally for the accomplishment of the purposes thereof but shall not be construed to supersede or repeal [G. L. c. 81, § 18, and G. L. c. 84, §§ 15-25]. Any other provision of law inconsistent with any other provisions of this chapter shall not apply."⁶

The Court also indicated that its decision was supported by the plain language of section 2 of the act, which states that a public employer shall be liable for the loss of property caused not only by the "negligent" act but also by the "wrongful" act of "any public employee while acting within the scope of his office or employment."⁷ "Because the Legislature has commanded that we are to construe liberally the provisions of the act, see St. 1978, c. 512, § 18, we conclude that a 'wrongful act' would encompass a private nuisance."

The opinion also applied its ruling retroactively, stating that retroactive application "furthers the purpose of having a consistent and clearly defined body of law, and we envision no specific hardships or inequities that would likely follow."

Notice provisions

Since the act was applicable to the claim of nuisance, the plaintiff's failure to comply with the notice provisions was grounds for dismissal. Pursuant to section 4 of the act, a civil action cannot be instituted against a public employer unless the claimant gives notice of his claim in writing to the executive officer of the public employer within two years after the date upon which the cause of action arose.⁸

Exceptions to waiver of immunity

Not only had the plaintiff failed to comply with the notice provisions, but the lawsuit was barred because the complaint sought relief from activities which the act exempted from the waiver of immunity; permitting and discretionary functions. As to the permitting, the harm was allegedly caused by work which was subject to the issuance of a permitting process to make improvements to Route 2.

Specifically, although this work "caused noise, dust, vibrations, and other damage to the Trust property" which was alleged to have interfered with the use and enjoyment of it, plaintiff's complaint could be traced back to "one or more of the types of events or activities delineated in § 10 (e)." Section 10(e) of the act exempts from the waiver of immunity 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."

As to "discretionary" decisions, under the act, any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused, is also exempt from the waiver of immunity.⁹

Potential impact on future claims

While the decision to include nuisance claims under the act is likely to allow more claims to be exempt as discretionary functions, the exemption is narrow, providing immunity only for discretionary conduct that involves policy making or planning, this decision is likely to allow many private nuisance claims against the government to be barred by the "discretionary function" exemption.

As the Morrissey decision notes, it is necessary to engage in a case-by-case determination of what is a discretionary function under section 10 (b) and what is not.¹⁰ In Morrissey, the commonwealth's decision to issue a permit was a discretionary function based on policy and planning considerations regarding roadway improvements, and therefore was barred by section 10 (b).¹¹

Other cases, not brought under "nuisance" theories but involving road design issues, have been found to be functions which involve the implementation and execution of governmental policy or planning would receive governmental immunity.

In Patrazza v. Commonwealth,¹² immunity was provided where the design of a highway guardrail and the policy implementing its use were encompassed within discretionary function exception of section 10 (b). Similarly, in Drivas v. Barnett,¹³ the town was immune where the design of an intersection was encompassed within the discretionary function exception of section 10(b).

Outside of the road construction area, another case applying the discretionary function exemption is (Barnett v. Lynn,¹⁴ where immunity was conferred for the city's decision not to erect a fence on city property to prevent sledding based on an allocation of limited resources and, and as such, was deemed a discretionary function. Another discretionary decision was found exempt in Pina v. Commonwealth where state employees who allegedly were negligent in evaluating and processing a claim for Social Security disability insurance benefits, resulting in an erroneous determination that a certain recipient of benefits had ceased to be disabled, giving rise to that individual physical and emotional distress and economic loss.¹⁵

Conversely, in Harry Stoller & Co., Inc. v. City of Lowell, the SJC held that the fire fighters' use of discretion whether or not to use a building's sprinkler system does not involve policy and planning considerations and therefore does not receive governmental immunity.¹⁶ Another case noting the limits of the discretionary function exemption is found in Dobos v Driscoll,¹⁷ where a state trooper was found to have verbally abused and arrested a motorist in connection with a minor traffic violation.

The claim against the commonwealth in Dobos sounded in negligence by the trooper's supervisor and the commonwealth alleged the supervisor's decisions were exempt as discretionary. The SJC declined to apply the exemption with reasoning that characterized the supervisors' alleged injury-producing conduct as follows: The reinstatement of Driscoll to highway patrol despite the supervisors' knowledge (actual or constructive) of ample reasons for not doing so, the failure to follow established procedures resulting in failing to impose probationary conditions on Driscoll's return to highway patrol that would have assured his removal prior to his encounter with the plaintiffs, the failure to monitor Driscoll's activities, and the failure to remove Driscoll, or to investigate his record, as various substantiated allegations of his misconduct arose.¹⁸

The Pina decision noted the inquiries relevant as to whether the act of a public employee involved discretionary conduct: "Was the injury-producing conduct an integral part of governmental policymaking or planning? Might the imposition of tort liability jeopardize the quality and efficiency of the governmental process? Could a judge or jury review the conduct in question without usurping the power and responsibility of the legislative or executive branches? Is there an alternate remedy available to the injured individual other than an action for damages?"¹⁹

In Sena v. Commonwealth, the SJC recognizes that Chapter 258 follows the Federal Torts Claim Act.²⁰ Massachusetts courts have found Federal opinions construing the Federal Act helpful when interpreting discretionary function exemptions set forth in Chapter 258 Section 10(b) of the Massachusetts Torts Claim Act.²¹ Specifically, Sena notes that the court in Harry Stoller & Co., Inc. v. City of Lowell,²² adopts a two-prong test applied by United States Supreme Court in the case of Berkovitz v. United States,²³ for determining whether specific conduct falls within the discretionary function exemption.

Conclusion

While the inclusion of private nuisance as subject to the provisions of the Tort Claims Act expands the scope of immunity protection compared to past interpretations, the Morrissey decision is similar to other cases where courts have exempted road design issues as discretionary functions. The chapter 258 notice provisions are a trap for the unwary who fail to comply, and Morrissey is a good example of why a chapter 258 demand letter should be sent on virtually any type of claim involving the government.

Overall, the decision appears to carry out the balanced purpose and intent of the Legislature in abolishing common law immunity, while creating a comprehensive scheme to maintain limits to liability.

Edward M. Pikula is city solicitor for the City of Springfield.

Christine M. Pikula is a student at Western New England College of Law.

¹Morrissey v. New England Deaconess Ass'n-Abundant Life Communities, Inc., 458 Mass. 580 (2010).
² 4 Mass. App. Ct. 13, 14-15 (1987).
³Murphy v. Chatham, 41 Mass. App. Ct. 821, 824-825, 676 N.E.2d 473 (1996) quoting Asiala v. Fitchburg, 24 Mass. App. Ct. 13, 17, 505 N.E.2d 575 (1987).
⁴ Morrissey v. New England Deaconess Ass'n-Abundant Life Communities, Inc., 458 Mass. 580,4 (2010).
⁵ Asiala v. Fitchburg, 24 Mass. App. Ct. 13, 18, 505 N.E.2d 575 (1987).
⁶ Morrissey at 5.
⁷ G. L. c. 258, § 2
⁸ G. L. c. 258, § 4
⁹ G.L. c. 258, § 10(b)
¹⁰ Pina v. Commonwealth, 400 Mass. 408, 413 (1987).
¹¹ Morrissey v. New England Deaconess Ass'n-Abundant Life Communities, Inc., 458 Mass. 580 (2010).
¹² 398 Mass. 464, 469-470, 497 N.E.2d 271 (1986).
¹³ 24 Mass. App.Ct. 750, 757, 513 N.E.2d 696 (1987).
¹⁴ 433 Mass. 662, 664, 745 N.E.2d 344 (2001).
¹⁵ Pina v. Commonwealth, 400 Mass. 408, 412 (1987).
¹⁶ 412 Mass. 139, 587 N.E.2d 780 (1992).
¹⁷ 404 Mass. 634 (1989).
¹⁸ Dobos v. Driscoll, 404 Mass. 634, 651 (1989).
¹⁹ Pina at 413.
²⁰ 417 Mass. 250 (1994).
²¹ Sena at 255.
²² 412 Mass. 139 (1992).
²³ 486 U.S. 531 (1988).