Opinion
11-P-452
02-06-2012
MIKE GREMO v. CITY OF WORCESTER (and eight companion cases).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On October 15, 2005, after a prolonged period of intense rain, sewage from the sewer system owned and operated by defendant city of Worcester (city) backed up into the homes of the plaintiffs. Relying on multiple tort theories, the plaintiffs filed the current actions seeking damages for their injury, as well as injunctive relief to prevent the problem from reoccurring. The city moved for summary judgment in each action and now bring this interlocutory appeal from a Superior Court judge's denial of those motions. We affirm.
Background. The sewer and stormwater drainage systems. The problems that are the subject of these suits occurred in the Dunkirk Avenue area of the city, an area of some 428 acres and 1,450 households. Sewage from this area is collected by a system of sewer pipes (totaling fourteen miles in length) and then pumped through a pump station from which the sewage eventually travels to a wastewater treatment plant. Stormwater in the area is separately collected through various drains and catch basins and eventually channeled into a sixty-inch diameter pipe that discharges into Broad Meadow Brook. This discharge point (the Broad Meadow Brook outfall) lies about three hundred feet from the sewer pump station.
The summary judgment record is comprised principally of five technical reports regarding the sewer and stormwater drainage systems. Although these reports take many different forms, none is in the form of an affidavit, and none was accompanied by affidavits. Compare Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974). However, neither side challenged the documents, and we, and the judge below, may therefore rely on them. See, e.g., Stepan Chem. Co. v. Wilmington, 8 Mass. App. Ct. 880, 880 (1979) (inadmissible exhibits may be considered on summary judgment if not challenged).
The sewage and stormwater collection systems are generally meant to be kept separate from each other, which serves to keep sewage out of the stormwater system and vice versa. However, stormwater still can enter the sewer system through the processes of 'infiltration' and 'inflow' (collectively called I/I). As a city official explained, '[i]nfiltration results when groundwater rises and envelopes the sanitary pipe in the ground and enters the sanitary system through pipe joints, defects and manholes,' while '[i]nflow results when roof leaders, sump pumps and foundation drains intended for discharge to the ground or storm drain system, are connected to the sanitary sewer system.' The pump station serving the Dunkirk Avenue area has an average daily flow of 1.39 million gallons per day (mgd), of which some .5 mgd has been estimated to be from groundwater infiltration. As a result of I/I, there can be 'a dramatic and instantaneous increase in flow in the [sewer] system during a rain event.' A 1994 study revealed how 'dramatic' such increased flows can be. It estimated that the pump station would encounter a peak wet weather flow of 4.8 mgd (1.8 mgd of sewage, 1.8 mgd of inflow, and 1.2 mgd of infiltration). The pump station was designed to handle a peak flow of 6.1 mgd.
There is a 'by-pass gate' in the area that, if opened, would allow sewage to flow directly into the stormwater system in the event of an emergency need to do so. However, it seems undisputed that this gate was closed during the relevant period, so this particular cross-connection is not implicated.
Chronic drainage problems at the Broad Meadow Brook outfall. Read in the light most favorable to the plaintiffs, see Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91, 97 (2011), the summary judgment record establishes that the city has a long-documented drainage problem at the Broad Meadow Brook outfall. This problem is caused in part by sediment accumulation that partially blocks the flow of stormwater from the sixty-inch pipe. The sediment accumulates in the pipe itself and in the brook in the vicinity of the discharge point. An engineering report prepared for the city in 2003 expressed concern over sedimentation issues and identified 'the need for a maintenance program to periodically flush and clean' the sixty-inch pipe because of sediment accumulation there. A 2009 report prepared for the city also expressed concern over sediment accumulation. Specifically, the report concluded that '[s]ediment accumulation in Broad Meadow Brook is blocking almost half the outlet of the existing [sixty]-inch' pipe and causing a high 'tailwater effect, raising the hydraulic grade line in the piped drainage system and further restricting the hydraulic capacity of the system.' The report identified this problem as one of two causes of localized flooding and wet basements, the other cause being that '[t]he existing drainage system does not have the capacity to handle more than a [three]-month storm event.' The 2009 report recommended the construction of additional drainage pipes (estimated to cost approximately $2.3 million) and the dredging of Broad Meadow Brook (estimated to cost approximately $1.6 million). The city apparently has not taken these steps.
For purposes of its summary judgment motions, the city does not contest that there are chronic drainage problems associated with the Broad Meadow Brook outfall, that these problems are caused in substantial part by sediment accumulation there, or that the inability of the stormwater system to siphon water away from the area can cause localized flooding and wet basements. However, as the plaintiffs acknowledged at oral argument, their current action is not over localized flooding and wet basements; it is specific to the backup of sewage into their homes. The key factual question is the extent to which the sediment accumulation problems at the Broad Meadow Brook outfall can lead to backups in the sewer system.
The city reports on the sewage backups. Some three weeks after the October 15, 2005, sewer backups occurred, the commissioner of the city's department of public works (DPW), himself a registered professional engineer, prepared a memorandum on what caused the problem. He concluded that the pump station itself did not 'fail,' that is, it worked as it was intended. Rather, the 'extreme wet weather experienced over a nine-day period' caused so much I/I to enter the sewer system, that the flow exceeded the design capacity of the pump station. Because the pumps were not able to keep up, this caused the system to be 'surcharged,' which forced sewage to back up into basements through sinks, toilets, and the like. In terms of recommendations going forward, the memo focused on eliminating sources of I/I (something that the report stated 'will take time and will cost millions of dollars').
The report also recommended that homeowners consider protecting themselves by installing backwater valves and buying insurance. Some of the homeowners who suffered damage had installed backwater valves, but not all of these valves were able to hold back the surcharged sewage.
The city then commissioned an outside engineering firm to study the problem. That firm, Stearns & Wheler, produced a report in June of 2006 that came to similar conclusions as the DPW commissioner, while providing a more detailed examination of the issues. The 2006 report noted that 12.33 inches of rain fell on the area over the nine-day storm, including 3.51 inches in an eight-hour period from 8:00 P. M. on October 14 to 4:00 A. M. October 15. It characterized this level of storm as a 150-year storm event. According to the report, the area became so inundated with water that additional rainwater had nowhere to go, causing flooding and the surcharging of the sewer system. In particular, the report stated that the level of Broad Meadow Brook was five feet above normal, and two feet above the top of the sixty-inch drainage pipe. The report documented various steps the city had taken or was taking to eliminate I/I in the area, including the removal of a newly-discovered connection with a catch basin that allowed storm water to flow directly into the sewer system.
The outfall of the stormwater system at Broad Meadow Brook received substantial discussion in the report, but mostly in the context of the role played by the bypass valve that directly linked the two systems. See note 3, supra. The report concluded that had the bypass valve been opened, this would not have relieved the surcharging of the sewer system; instead, given the level of the water in Broad Meadow Brook, opening the valve would have increased the pressure in the sewer system and caused more sewer backups.
The plaintiffs do not appear to challenge the specific findings of the two reports on the sewer backups. Instead, as explained in a memorandum from their own engineer, they seek to show how the city's various reports, when taken together, support their theory that sediment accumulation at the Broad Meadow Brook outfall has lessened the capacity of the drainage system to funnel stormwater away from the area, and that this directly causes localized flooding and indirectly causes sewer backups. The memorandum goes on to characterize the city's failure to address the sedimentation issues as a 'lack of maintenance,' and it concludes:
'Due to this lack of maintenance, the [sixty-inch] storm sewer is now more than half full of water and its hydraulic capacity is severely limited and is ripe for another major flooding episode similar to the widespread damage that occurred in October of 2005 wherein the storm and sanitary sewer system became over loaded and caused severe sewage backups into resident[s'] homes.'
Discussion. Although the allegations set forth in the complaints are sparse, the summary judgment proceedings served to clarify that the plaintiffs are basing their claims on the assertion that the chronic sedimentation problems at the Broad Meadow Brook outfall caused the sewer backups. The city argues that this theory fails for two different sorts of reasons. The first is that the referenced sedimentation issues -- while problematic for other reasons -- did not in fact cause the sewer backups that occurred on October 15, 2005. The second is that even if the sedimentation problems did cause the sewer backups, the city remains immune from liability for its failure to address these problems, pursuant to the 'discretionary function exception' set forth in G. L. c. 258, § 10(b). We address these arguments in that order.
The city makes many other arguments as well, but these are mostly directed at rebutting theories on which the plaintiffs do not actually rely. For example, the city argues that a claim premised on the city's having designed a pump station that could not handle a 150-year storm necessarily fails, because such decisions lie at the core of the sort of discretionary judgments that are immune from liability.
While the city couches this argument in terms of 'immunity,' it is fundamentally asserting that the plaintiffs are unable to prove ordinary factual causation, an essential element of their claim. In the interests of judicial economy, we may reach this nonimmunity issue even in the context of an appeal of the denial of summary judgment. See Kent v. Commonwealth, 437 Mass. 312, 320 (2002); Boxford v. Massachusetts Hy. Dept., 458 Mass. 596, 601 n.13 (2010).
The city separately argues that it is immune from liability because it did not take actions that could reasonably be deemed to be an 'original cause' of the sewer backups. See G. L. c. 258, § 10(j). The question whether a public action was an 'original cause' of harm is distinct from whether it was a 'but for' cause or proximate cause, see Brum v. Dartmouth, 428 Mass. 684, 691696 (1999). It typically comes into play to protect public entities from incurring liability for mere inaction in preventing harm directly caused by third parties or natural forces. Id. at 696 (town not liable for failing to take measures to prevent fatal attack by third party at public school). Here, the rains did not harm the plaintiffs without intervening city involvement; indeed, the sewage that the city had collected was the instrumentality of the harm. In any event, under its express terms, § 10(j) would not be implicated to the extent that the sewer backups were caused by a lack of maintenance. See § (10)(j)(3). Thus, to the extent that the plaintiffs can fend off the discretionary function exception by invoking 'maintenance' (see discussion infra), the original cause provision would not add a separate impediment to their claims.
Causation. There appears to be considerable force to the city's argument that the sedimentation problems at the Broad Meadow Brook outfall may not have had anything to do with the sewer backups that occurred on October 15, 2005. However, although the current record suggests that the plaintiffs may well ultimately be unable to prove causation, we conclude that the city has not yet closed the door on the plaintiffs' theory with sufficient conclusiveness to warrant the grant of summary judgment. See Attorney Gen. v. Bailey, 386 Mass. 367, 370 (1982) ('A court should not grant a party's motion for summary judgment 'merely because the facts he offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial''), quoting from Hayden v. First Natl. Bank, 595 F.2d 994, 997 (5th Cir. 1979). In this regard, we note that neither of the two reports on which the city relies (the 2005 and 2006 reports on how the sewer backups occurred), purports to take on the plaintiffs' theory and contradict it. Instead, the city in essence asks us to draw inferences from the reports to fill in the gaps. In particular, the city argues that even if the outfall had been completely unimpeded by sedimentation, stormwater could not have flowed into Broad Meadow Brook, because, at the relevant time, the level of the brook had risen to some two feet above the top of the pipe. This assertion has obvious common-sense appeal. Nevertheless, in light of the technical nature of the issues in play and of our obligation at the summary judgment stage to draw all inferences in favor of the nonmoving party, see Patsos v. First Albany Corp., 433 Mass. 323, 324 (2001), we decline to accept the inferences the city asks us to draw as conclusive, self-evident proof that the plaintiffs cannot prove their causation theory. In short, our detailed review of the record convinces us that the technical issues raised here may be more complicated than they first appear, and we lack the expertise to fill in the gaps in the city's current showing. In short, on the existing record, the city has not demonstrated '[a] complete failure of proof' of causation, as would be necessary in this context to show an entitlement to summary judgment. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991).
The memorandum from the plaintiffs' engineer is the only document in the record that discusses both the sedimentation problems at the outfall and the sewer backups. The city raises various reasons why one should be skeptical of the conclusions of that memorandum, including the fact that it does not directly address the high water conditions at the outfall. While it is certainly true that the plaintiffs' engineer fails fully to engage the points made by the city's engineering reports, the inverse is also true. Moreover, while the city points out that this memorandum does not expressly opine that the sedimentation problems caused the sewer backups in October 15, 2005, but focuses instead on whether the situation 'is ripe' for a reoccurrence, we note that the plaintiffs are seeking injunctive relief, not just damages for past injuries.
In fact, it credibly can be argued that once the brook reached a certain level, any blockages in the drainage system may actually have helped protect the sewer system from even more I/I, just as keeping the bypass gate shut did.
The reports suggest that at least until the level of Broad Meadow Brook increased to a particular height, any blockages in the Broad Meadow Brook outfall would be expected to impede the flow of stormwater from the area, causing it to become increasingly saturated. At some point, as surface water levels rose, any blockages at the outfall would likely cease to exacerbate the problem further. But it is hardly self-evident at what point that would occur (and what I/I may have been forced into the sewer system in the interim). Moreover, the city appears to treat the height of the brook as an exogenous factor when it is in fact determined in part by the sedimentation-related problems (something that is substantiated in the 2009 report, which discusses the 'higher tailwater effect' caused by the sedimentation problems).
We emphasize that our conclusions are based on the current, relatively undeveloped summary judgment record. Both sides sought to support their legal arguments based on existing engineering reports, neither side's experts were forced to take on the strength of the others' points, and insufficient explanatory assistance was offered to fill in the gaps for lay adjudicators. We express no view on whether further development of the issues in discovery might render the causation issue amenable to resolution as matter of law.
Discretionary function. At least to the extent that the plaintiffs' claims are based on negligence and nuisance, they are covered by the Massachusetts Tort Claims Act (MTCA), G. L. c. 258, §§ 1 et seq., including the exceptions to liability set forth in § 10. Pursuant to G. L. c. 258, § 10(b), inserted by St. 1978, c. 512, § 15, a municipality is immune from liability for 'any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty.' The city argues that, in the context of claims involving municipal sewer systems, a municipality is immune from liability for policy choices it made in designing the system, but can be liable only for negligent construction, maintenance, or operation of the system it designed. At least for purposes of summary judgment, the plaintiffs have not challenged that demarcation.
No reported case expressly holds that trespass claims are subject to the MTCA, but the city argues that this is implicit in the Supreme Judicial Court's recent conclusion that private nuisance actions are within the statute's reach. See Morrissey v. New England Deaconess Assn. -- Abundant Life Communities, Inc., 458 Mass. 580, 586 (2010). We need not resolve that issue in the current appeal.
This boundary is the same one that existed before the MTCA was enacted. See Lobster Pot of Lowell, Inc. v. Lowell, 333 Mass. 31, 33 (1955).
As noted above, the plaintiffs base their claims on the assertion that the city's failure to address the sedimentation issues at the Broad Meadow Brook outfall caused the sewer backups. According to them, this failure is not barred by the discretionary function exception, because it amounts to a 'lack of maintenance' of the system. The judge below accepted that characterization. In arguing that the sedimentation problems cannot fairly be characterized as a lack of maintenance, the city relies in part on the fact that the identified fix to these problems is to undertake dredging, a high-cost solution that the city claims necessarily implicates the exercise of high-level policymaking discretion.
As with the causation issue discussed above, we do not think the discretionary function issue should be resolved on the current undeveloped record. The nature of the particular sedimentation at issue is far from clear. At least some of the sedimentation identified to be of concern is in the sixty-inch pipe itself, and the city's own engineering consultant identified the removal of such sediment as a 'maintenance' issue. Although other sedimentation of concern is plainly in the brook, some of this appears to lie in a location that directly blocks the flow of stormwater from the end of the pipe. Depending on the facts, it may be reasonable to characterize the removal of such sediments as a 'maintenance' issue. For all that appears in the current record, some of the sedimentation in the brook may not lie anywhere near the outfall and it may simply have resulted from natural forces (in which case it may be more difficult to characterize the dredging of such an area to improve the natural capacity of the brook to accept more stormwater as 'maintenance' of the stormwater system). Compare Tarzia v. Hingham, 35 Mass. App. Ct. 506, 508- 509 (1993) (town could not be sued in negligence for failure to dredge pond that was causing flooding, as this went beyond 'maintenance' and implicated highly discretionary policymaking). See also Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 492 (2002) (in holding that a failure to warn beachgoer of dangerous ocean conditions could not be considered the 'original cause' of a drowning, we noted that '[t]he Commonwealth does not 'maintain' the ocean '). Wherever the line between 'maintenance' and system design should be drawn, such line drawing should be undertaken only upon a better factual record. The judge was correct to deny summary judgment on the current record.
To the extent that the removal of sedimentation from the river can be charactered as 'maintenance,' we do not think it necessarily ceases to be maintenance simply because addressing it now involves high capital costs. Again, however, assessing such issues should not be done in the abstract but on a sufficient factual record.
In Tarzia, this court concluded that although a negligence claim for damages was barred by the discretionary function exception, an action alleging a continuing nuisance claim was not (a result we characterized as 'Solomonic '). 35 Mass. App. Ct. at 507, 510. We first recognized that nuisance claims were not subject to the MTCA in Asiala v. Fitchburg, 24 Mass. App. Ct. 13, 16- 18 (1987). Although that holding stood for many years, the Supreme Judicial Court recently abrogated it. See Morrissey v. New England Deaconess Assn. -- Abundant Life Communities, Inc., 458 Mass. at 589-590. The application of the discretionary function exception in Morrissey was relatively straightforward because the plaintiff there was alleging that a State agency was liable for creating (not maintaining) a nuisance by issuing a discretionary permit decision. In the wake of Morrissey, an appellate court has not yet ruled on the scope of the immunities provided by the MTCA (including as to injunctive relief) in a scenario where, on an ongoing basis, a public entity is so substantially and unreasonably interfering with someone else's use of his land as to be maintaining a continuing nuisance. The potential need to resolve such challenging issues is another factor supporting the development of a fuller factual record.
We recognize that part of the point of immunity from suit (and the reason denial of immunity is subject to interlocutory appeal under the doctrine of present execution) is to spare public entities from even having to go through a full discovery process. See Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91, 98 (2011). However, this laudable goal cannot excuse a public entity from adequately developing the facts, where, as here, an assessment of the immunity issues is to some extent bound up in them.
Order denying motions for summary judgment affirmed.
By the Court (Trainor, Milkey & Hanlon, JJ.),