Opinion
No. 12–P–213.
2013-05-10
Alice L. BENTLEY & others v. LYNN WATER AND SEWER COMMISSION (and three companion cases ).
By the Court (GRASSO, VUONO & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from judgments entered following a jury trial in which damages were awarded to the plaintiff homeowners for losses incurred as a result of the defendant, Lynn Water and Sewer Commission's (Commission), negligence, the Commission argues that (1) the jury verdict as to two plaintiffs, Laurie Pelletier and Mary T. Gronski, was excessive; (2) the presentment letters from plaintiffs Carl A. and Brenda Joyce Fuccillo, and Betsi Bell and Pamela Anastas, were inadequate; (3) the judge erred in not giving a required “act of God” instruction; and (4) the judge improperly instructed the jury on the applicability of 302 Code Mass. Regs. § 10.11. The Commission also contends that the parties' agreements for judgment, which were approved by the judge, and the order denying the defendants' motion to amend the judgment in Alice L. Bentley v. Lynn Water and Sewer Commission should be vacated in part. We have reviewed the record carefully and discern no basis for disturbing the judgments or order. Therefore, we affirm. Background. A brief summary of the factual background suffices for purposes of the present appeal. The plaintiffs' claims arose following a flood that inundated their homes on May 15, 2006. The rain storm was the second largest one-day storm event in the history of Essex County. As a result of the tremendous downpour, the Commission feared that the Walden Pond dam, which was more or less full when the storm approached, would collapse. Consequently, the Commission activated the dam's emergency-release system. That system, however, did not work properly because one of the drain pipes that was supposed to receive the overflow was blocked by overgrown vegetation. The released water backed up and flooded the plaintiffs' residences. The plaintiffs filed four separate lawsuits, which were consolidated for trial, alleging strict liability, negligence, private nuisance, and negligent trespass.
All claims were submitted to the jury with the exception of the trespass claim, on which the judge directed a verdict for the defendant.
As noted, the jury returned verdicts on the basis of negligence in favor of the plaintiff homeowners, awarding various amounts depending on the homeowners' claimed damages. After the jury returned their verdicts, the parties entered into agreements for judgment, which addressed the plaintiffs' remaining equity claims, and by which the Commission, essentially, promised to maintain the water drainage system in the future. The judge denied the Commission's postjudgment motions.
1. Excessive damages. The Commission first argues that the $50,000 award to Pelletier and Gronski is grossly excessive, contending that only Gronski (Pelletier's mother) submitted a claim for damages, and that Pelletier testified that Gronski's damages to her house were between $25,000 and $27,000 with another approximately $3,800 in hotel and car expenses.
The judge refused to set aside the jury verdict as to Gronski and Pelletier, noting that:
The basis of the Commission's motion to amend the judgment in this case was the claimed excessiveness of the damages.
“In addition to her testimony concerning her loss of $27,549 in property, Ms. Pelletier also referenced expenses of $3,880.00 which she and her family, including her mother, incurred as a result of defendant's negligence. Ms. Pelletier also testified about her mother's oil tank having rusted and being in need of replacement. She also mentioned twice, once in direct and once in cross, an additional $25,000 of damages. Given this testimony, I decline to amend the jury's verdict.”
The judge's decision to deny the Commission's request was not an abuse of discretion. See Baudanza v. Comcast of Mass. I, Inc., 454 Mass. 622, 630 (2009) (allowance of a motion for new trial based upon inadequate or excessive damages rests in the sound discretion of the judge). While it is true that only $30,880 in damages was itemized, Pelletier's testimony that additional expenses were incurred, such as replacing the oil tank, justified the jury's award. Because the record supports the judge's determination that the jury award was reasonable, there was no abuse of discretion.
2. The presentment letters. The Commission next argues that the Fuccillos's and Bell's/Anastas's presentment letters were inadequate. See G.L. c. 258, § 4.
The basis of the argument is the Commission's observation that in neither letter did the plaintiffs explicitly assert that they were pressing strict liability and negligence claims.
.General Laws c. 258, § 4, inserted by St.1978, c. 512, § 15, provides that “[a] civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose....”
The judge determined that the presentment letters were sufficient. We agree.
The Commission does not allege that the letters were untimely or were presented to the wrong persons.
The statute does not specify what must be included in the presentment letter. See Garcia v. Essex County Sheriff's Dept., 65 Mass.App.Ct. 104, 109 (2005). With respect to the adequacy of a presentment letter the Supreme Judicial Court has stated:
“A presentment letter should be precise in identifying the legal basis of a plaintiff's claim,” and should not be “so obscure that educated public officials should find themselves baffled or misled with respect to [the plaintiff's] assertion of a claim ... which constitutes a proper subject for suit within G.L. c. 258....” Gilmore v. Commonwealth, 417 Mass. 718, 723 (1994).
Here, among other things, the Fuccillos claimed extreme flooding of water related to the spill-over from the Walden Pond reservoir dam.
Bell and Anastas asserted in their letter that they were requesting “assistance and advice ... to seek some financial relief to repair the damage to my home caused by the decision to open the manuals spill-over valve that abuts my property.”
The letter stated: “On Monday the 15th of May at around daybreak the spill-over to the Walden Pond Dam started to flow water into the wetlands which abuts my house. Later in the day the Water Management Department and other officials, opened the manual spill-over valve and added to the levels of flooding that had already accumulated. Causing the flood water levels to rise.”
While the letters are not models of clarity, they provide a sufficient description of the facts from which to infer the basis of the claim and the type of damages that were sustained. As such, they are adequate to fulfill the statutory purpose of the presentment requirement. See Martin v. Commonwealth, 53 Mass.App.Ct. 526, 530 (2002).
The letter stated: “On Monday, May 15th the Water Management Department and other officials, opened the manual spill-over, suddenly my basement started to accumulate more than 12 [inches] of water. The damage to the basement is as follows....”
3. The request for an “act of God” instruction. The Commission asked the judge to give the jury an “act of God” instruction. Concluding that such an instruction would not apply under a negligence theory, the judge declined. Notwithstanding the judge's ruling, and as the plaintiffs point out in their brief, the judge did in fact, give instructions substantively similar to those that the Commission requested. The judge instructed the jury that, notwithstanding the Commission's negligence, such negligence could not subject the Commission to liability “[i]f the harm would have occurred anyway.”
Assuming without deciding that an “act of God” instruction was warranted, given that the Commission received an instruction similar to the one it requested, we perceive no prejudice.
The judge stated: “The defendant's conduct is the legal cause of the plaintiffs' injury if it was a substantial factor in bringing it about, and without which the harm would not have occurred. If the harm would've occurred anyway, the defendant is not liable. It does not matter whether other concurrent causes contributed to the plaintiffs' injury, so long as the defendant's conduct was a substantial factor.”
4. Remaining Arguments. The Commission's remaining arguments have no merit. The Commission's argument that the judge erred by instructing the jury regarding the “emergency action plan” requirements set forth in 302 Code Mass. Regs. § 10.11, on the basis that there was no conclusive evidence that the regulation was in effect as of the date of the storm is not supported by the record. It suffices to say that there was testimony at trial that the regulation was in effect at least by November 4, 2005. Nor is there a basis for the Commission's argument that its agreements for judgments should be set aside because it erroneously “relied” on the jury's verdicts when entering into the agreements.
5. Request for appellate attorney's fees and costs. The plaintiffs seek an award of their appellate attorney's fees and double costs. Although the Commission has not prevailed, we do not consider its appeal to be frivolous. Accordingly we decline the plaintiffs' request.
The judgments and the agreements for judgments in all four cases are affirmed.
In the case of Alice L. Bentley & others v. Lynn Water and Sewer Commission, the order denying the motion to amend the judgment is affirmed.