Opinion
No. 11–P–470.
2012-07-10
Gary P. SILVA v. ASSOCIATED BUILDING WRECKERS, INC.
Morrissey v. New England Deaconess Assn.-Abundant Life Communities, Inc., 458 Mass. 580, 588 & n. 15 (2010) (internal quotation marks and citations omitted). As the defendant's actions did not fit within the definition of nuisance, there was no error.
By the Court (RUBIN, BROWN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Pursuant to a contract with the city of Holyoke (city), the defendant began the demolition of an abandoned, leaning building that was adjacent to a garage housing an automotive repair business owned and operated by the plaintiff. During the demolition, the building collapsed onto the plaintiff's garage. Alleging negligence, breach of contract, trespass, nuisance, strict liability, and violation of c. 93A, the plaintiff sued the defendant for damages to real and personal property, personal injuries, and lost income.
The matter was tried jury-waived. At the close of the plaintiff's case, the judge found for the defendant, by way of a directed verdict, on counts V, VI, and VII, the nuisance, strict liability, and c. 93A claims. At the conclusion of the trial, the judge awarded the plaintiff $366,607.36 on his breach of contract claim under count I, including damages for building repair, removal and demolition costs, and a nominal award of $10,000 for personal property damage. He ruled for the defendant on the plaintiff's negligence theory under count I, the personal injury claims (count II), and the trespass claim (count IV). The plaintiff appeals, claiming error in the entry of the judgments in favor of the defendant, and in the denial of his motion to continue the trial.
The plaintiff did not include his complaint in the record appendix. As described by the trial judge, and as pertinent here, the complaint was in seven counts, including, inter alia, count I (negligence and breach of contract for property damage and building loss); count II (negligence and breach of contract for personal injuries); count IV (trespass); count V (nuisance); count VI (strict liability); and count VII (violation of G.L. c. 93A).
A. Notice of appeal. The first issue is whether the appeal is properly before us.
Relying on Jones v. Boykan, 74 Mass.App.Ct. 213, 218 (2009), the defendant argues that the plaintiff's first notice of appeal was premature and the second notice was late, and that, as a result, the plaintiff's appeal is not before us. The plaintiff disputes this. He quotes from both notices of appeal wherein he purports to appeal from the disposition of all of the counts of his complaint.
On May 19, 2010, the judge issued his findings of fact, rulings of law, and order (memorandum) on counts I, II, and IV, and judgment on those counts issued on June 21, 2010. The plaintiff filed a notice of appeal on July 21, 2010. In the May 19 memorandum, the judge wrote that, after the close of the plaintiff's case, he had directed a verdict in favor of the defendant on counts V, VI, and VII. However, the separate judgment on counts V, VI, and VII did not issue until August 4, 2010. The plaintiff did not file a notice of appeal within thirty days of that judgment. On December 1, 2010, on the plaintiff's motion, he was awarded costs. He filed a notice of appeal from the judgment on directed verdict on December 28, 2010.
In all the circumstances of this case, and having in mind the confusion created by the judge's issuing a memorandum and order disposing of all the counts, in addition to issuing two separate judgments, we are prepared to address the plaintiff's appeal. See RCS Group, Inc. v. Lamonica Constr. Co., 75 Mass.App.Ct. 613, 617 n. 8 (2009), citing Jones v. Boykan, supra at 218 n. 9.
The notices of appeal are not included in the record appendix.
B. Motion for continuance. The plaintiff's argument that the motion judge abused her discretion in denying his December 16, 2008, motion for a continuance of the January 8, 2009, trial date fails for several reasons, including the following: the case was filed in December of 2006 and was subject to the tracking deadlines, and the judge was not informed of the need for a continuance earlier, even though the plaintiff knew that he did not yet have the OSHA materials he was seeking. In fact, shortly before the motion for a continuance, the judge was urged to act quickly on a summary judgment motion in order to meet the trial date. Furthermore, the trial did not start until April of 2009, three months after the originally scheduled January, 2009, trial date.
There is nothing in the record to indicate that the plaintiff renewed his motion before the trial judge or that he has since moved for a new trial alleging newly discovered evidence.
C. Judgment on directed verdict. 1. Strict liability (count VI). The plaintiff argues that the judge erred both procedurally and substantively in allowing the defendant's motion for a directed verdict on the plaintiff's strict liability claim.
His claim that he was entitled to a judgment on the strict liability count as matter of law because the defendant's activity was “abnormally dangerous” is without merit. While strict liability is applicable to blasting cases, this is not such a case-here, the defendant undertook to demolish the top floors of the building by hand. Therefore, whether the activity in question is an abnormally dangerous or ultra-hazardous activity for which the defendant is to be held strictly liable is to be decided in light of attending circumstances on the facts of each case and with the consideration of the following factors:
We note that the plaintiff failed to include the defendant's motion in the record appendix. In addition, the plaintiff waived any procedural objection by failing to make it below. Although he argues in a footnote that he raised this issue in his motion for reconsideration, he has not included that motion in the record appendix.
“(a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from [the activity] will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.”
Restatement (Second) of Torts § 520 (1977). See Clark–Aiken Co. v. Cromwell–Wright Co., 367 Mass. 70, 89 (1975).
It is the last two factors that persuade us that the judge properly held the defendant's activity not to be abnormally dangerous. The judge found that the building was in an active state of collapse, was leaning precariously towards the plaintiff's property, and constituted an imminent hazard. It could not be said that the activity was inappropriate for the place where it was carried on—in fact, the only place where the dismantling of this building could be conducted was at the site where it was standing. Moreover, the value of removal of this building, which presented a great risk to the community, could not be underestimated.
Unlike in Ainsworth v. Lakin, 180 Mass. 397, 398–402 (1902), where the defendant landowner who failed to remove the remaining wall of a burned-out building was found to be strictly liable for the damage that it caused when it fell, here, the city stepped in to perform the duty eschewed by the derelict landowner by hiring the defendant to demolish the building.
2. Nuisance (count V). The plaintiff next argues that the judge erred in directing a verdict against him on his nuisance claim.
“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.... Liability for the maintenance of a nuisance, premised on allegations of interference with the use and enjoyment of land, should be based upon a determination that the interference is intentional and unreasonable or results from conduct which is negligent, reckless or ultrahazardous.”
Morrissey v. New England Deaconess Assn.-Abundant Life Communities, Inc., 458 Mass. 580, 588 & n. 15 (2010) (internal quotation marks and citations omitted). As the defendant's actions did not fit within the definition of nuisance, there was no error.
3. General Laws c. 93A (count VII). The judge correctly directed a verdict on the c. 93A claim. There was no evidence of unfair and deceptive acts by the defendant: the failure to pay for the damage did not in and of itself constitute an unfair and deceptive act. See Giuffrida v. High Country Investor, Inc., 73 Mass.App.Ct. 225, 238 (2008) (“In a G.L. c. 93A claim, the existence of unfair or deceptive acts ordinarily must be determined from the circumstances of each claim.... [B]usinesses seeking relief under Section 11 are held to a stricter standard than consumers in terms of what constitutes unfair or deceptive conduct”).
D. Judgment on findings by the court 1. Contract claims (counts I and II).
The contract between the defendant and the city provided that the defendant would restore any structures and items damaged as a result of the demolition. At the beginning of the trial, the parties stipulated that the plaintiff was a third-party beneficiary of this contract. The defendant conceded that it was responsible for the damage to the plaintiff's building.
The plaintiff does not challenge the dismissal of his negligence claims.
The judge awarded the plaintiff $324,207.36 for damages to the structure and $32,400 for demolition. The plaintiff does not challenge these amounts and the defendant did not cross-appeal.
a. Damage to personal property. The plaintiff does not challenge the judge's finding that he did not establish which items were stolen, and which were damaged, and that only the latter would be covered by the contract.
Instead, his sole challenge to the $10,000 personal property damage award is based on the judge's additional statement that there was no showing that he made reasonable efforts to mitigate the damage caused by the theft of certain items. Because we agree with the judge that theft of the plaintiff's property was not covered by the contract, and the plaintiff does not argue otherwise, we need not address this challenge other than to note that the plaintiff was cross-examined and testified on the issue without objection by his counsel. See note 9, supra.
The plaintiff testified that he could not tell which items were destroyed and which were stolen. In making the nominal damages award, the judge reasoned that, while personal property damaged during the collapse was covered by the contract, personal property subsequently stolen by third parties was not so covered because theft was “not within the contemplation of the parties” and “was not a natural consequence of the breach.” He opined that “it would be speculative for the court to arrive at the figure requested by the plaintiff because he has not established which items were stolen and which items were damaged.” The plaintiff does not challenge these conclusions, which provide sufficient grounds for affirming the award.
b. Personal injuries. Relying largely on Ayala v. Boston Hous. Authy., 404 Mass. 689 (1989), the plaintiff argues that, based on the contract between the defendant and the city, he was entitled to damages for his personal injuries—tinnitus. This reliance is misplaced. Unlike Ayala, where the defendant's breach of its contract to inspect for lead paint and take remedial action caused the plaintiffs' personal injuries, here, the defendant's breach of contract in failing to pay for the plaintiff's property damage did not cause his injuries. The other cases relied on by the plaintiff are not on point. Furthermore, the language of the contract supports the judge's conclusion that personal injury damages “were not within the contemplation of the parties at the time the contract was made.” We therefore find it unnecessary to reach the plaintiff's challenge to the judge's additional conclusion that “because the defendant was advised to vacate his premises while the demolition was underway, personal injuries were not a natural and probable consequence of the breach.”
Finally, the plaintiff's reliance on the indemnification clause, which provided in part that the defendant “shall take all responsibility for the work and take all precautions for preventing injuries to person and property in or about the work” is equally misplaced. Because the indemnification clause was not implicated in this case—the plaintiff did not sue the city and the city did not seek indemnification from the defendant—there was no error in the judge's conclusion that the plaintiff was not a third-party beneficiary of this clause.
c. Lost income. The judge wrote:
“[T]he plaintiff is not entitled to lost profits because: (1) they were not within the contemplation of the parties at the time the contract was made; (2) they were not proven with reasonable certainty; and (3) they could have been prevented, at least to some extent, by reasonable efforts on the plaintiff's part. Although the plaintiff hired a company to remove the fallen debris and demolish what was left of his building, he took no further action. He did not use the insurance proceeds to rebuild and reopen his business, to rent space elsewhere, or even secure other employment.”
As with the personal property damages issue (see part D.1.a., supra ), the plaintiff's sole challenge relates to the third ground—mitigation. Because he does not challenge the first two grounds, which suffice to uphold this ruling, we need not reach this issue. Moreover, while the plaintiff argues that the defendant did not preserve the issue of mitigation because it failed to raise it in its answer and joint pretrial memorandum, he did not include either pleading in the record appendix. Finally, the plaintiff does not challenge the judge's findings that he took no action other than demolishing the remains of his building, that he did not use the insurance proceeds to rebuild and reopen his business, to rent space elsewhere, or to secure other employment. These findings must stand unless clearly erroneous. Sparrow v. Demonico, 461 Mass. 322, 325 (2012).
2. Trespass (count IV). The plaintiff claims that the defendant should have been held liable for trespass.
One “who sets in motion a force which, in the usual course of events, will damage the property of another is guilty of a trespass on such property.” Krasnecky v. Meffen, 56 Mass.App.Ct. 418, 424 (2002), quoting from Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 187 (1956). There is nothing to indicate that undertaking to demolish the top floors by hand would have resulted, in the usual course of events, in damage to the property of another. Therefore, the dismissal of the trespass claim was proper. See Mancuso v. Kinchla, 60 Mass.App.Ct. 558, 564 (2004), citing Gabbidon v. King, 414 Mass. 685, 686 (1993) (“[J]udgment of dismissal can be affirmed on any ground ... that supports the result reached in the trial court”).
The plaintiff is not arguing negligent trespass, nor could he do so in light of the judge's unchallenged determination that the defendant was not negligent. See DeSanctis v. Lynn Water & Sewer Commn., 423 Mass. 112, 118 (1996).
To the extent the plaintiff raises other issues on appeal, they are without merit. The judgments dated June 21, 2010, and August 4, 2010, are affirmed.
So ordered.