Opinion
No. 11–P–1409.
2012-08-10
LEROY & CO., INC. v. CITY OF WORCESTER.
By the Court (TRAINOR, SMITH & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On September 10, 2010, a jury found that the city of Worcester had trespassed upon the land of Leroy & Co., Inc. (Leroy) when the fill and soil within the right of way of Franklin St. eroded the slope adjoining Leroy's property, resulting in damage to Leroy's building and equipment.
The jury awarded damages of $51,658.91. On the city's motion for judgment notwithstanding the verdict, see Mass.R.Civ.P. 50(b), as amended, 428 Mass. 1402 (1998), the trial judge entered judgment for the city, on the grounds that the Massachusetts Torts Claims Act, G.L. c. 258, §§ 4 & 10( c ) (Act) barred recovery. See Morrissey v. New England Deaconess Assn.-Abundant Life Communities, Inc., 458 Mass. 580 (2010). We affirm.
The jury found for Worcester on Leroy's claims of nuisance and de facto taking.
In Morrissey, the Supreme Judicial Court held that common law claims of nuisance, which had been cognizable prior to the passage of the Act against a governmental entity as an exception to the doctrine of sovereign immunity, were subject to the Act. See id. at 586–587. The “primary purpose of the Act was to replace the common-law doctrine of governmental immunity and its myriad judicially created exceptions, with a comprehensive statutory scheme governing the tort liability of public employers.” Id. at 590. The Supreme Judicial Court specifically overruled the prior precedent of this court which held that certain common law claims that were permitted against municipalities before the passage of the Act were exempted from the Act's procedures and defenses. See id. at 588–590. See also Asiala v. Fitchburg, 24 Mass.App.Ct. 13, 16–18 (1987). Like nuisance, trespass claims were not barred by the doctrine of sovereign immunity before the passage of the Act. See Mayo v. Springfield, 136 Mass. 10 (1883)(claim that building of road encroached upon and caused collapse of embankment onto plaintiff's property not barred by sovereign immunity). Morrissey, however, compels the conclusion that the Act, and its requirements, are equally applicable to this trespass claim. Leroy argues that even if the Act applies, the trespass alleged and proven was an “intentional” trespass only in the sense that the incursion of the embankment onto Leroy's property was without right or privilege, but that neither negligence nor intent is a required element of the tort of trespass.
See United Elec. Light Co. v. Deliso Const. Co., 315 Mass 313, 318–319 (1943). Leroy argues that the theory of trespass upon which it relied in this case is neither an intentional tort within the meaning of § 10( a ) of the Act, nor a tort of negligence that is subject to the Act's presentment requirements.
At trial, Leroy specifically disclaimed any claim of negligent trespass.
A cause of action for intentional trespass does require a showing of a “an affirmative voluntary act,” however. Id. at 318. This, the city submits, is sufficient to bring the claim within the ambit of § 10( c ). Leroy's theory of liability at trial was that the city intended to place the fill and build the road, and/or did not properly maintain the road, and that the trespass was the result of that intentional, but otherwise authorized, act. “The Legislature, by excluding intentional torts from the waiver of governmental immunity, sought to insulate the government from liability for intentional conduct which it had not authorized.” Doe v. Blandford, 402 Mass. 831, 838 (1988). Leroy argues that a showing of intent for purposes of § 10( c ) thus requires a showing of unauthorized intent to do harm, and none pertains here. See generally Molinaro v. Northbridge, 419 Mass. 278, 279–280 (1995)(construing the intent exception narrowly; holding reckless and wanton conduct is not intentional conduct under § 10[ c ] ).
We need not decide this question however. If this particular claim of trespass is an intentional tort under § 10( c ), it is barred. If it is not, the action is barred for lack of presentment.
The Act applies not only to negligent but also to wrongful acts, see G.L. c. 258, § 2, and Leroy prevailed on a theory that the city's conduct was, at the very least, wrongful. Leroy did not make presentment, as required by § 4 of the Act, and his claim is therefore barred.
Accordingly, we do not reach Worcester's argument that an unintended intrusion upon land is not actionable absent a showing that Worcester engaged in “an abnormally dangerous activity.” Restatement (Second) of Torts § 166 (1965). See Edgarton v. H.P. Welch Co., 321 Mass. 603, 612 (1947). Nor do we reach Worcester's argument that there was insufficient evidence to support the verdict.
See Spring v. Geriatric Authy. of Holyoke, 394 Mass. 274, 285, (1985); Tivnan v. Registrar of Motor Vehicles, 50 Mass.App.Ct. 96, 103 (2000). Any other result is foreclosed by Morrissey, which expressly applied its holding retroactively. Id. at 589–591 & n. 16.
We recognize that Morrissey was issued after the verdict in this case. At the time presentment would have been made, this court had held that presentment was not required for the tort of nuisance, law upon which the plaintiff may well have relied. See Asiala v. Fitchburg, supra. Asiala and subsequent cases decided in reliance on it have been abrogated by Morrissey. We also recognize that the cases have made a distinction between the retroactivity of judicial decisions involving cases sounding in tort, and those involving contracts or real property. See Payton v. Abbott Labs, 386 Mass. 540, 564–566 (1982)(and cases cited). The retroactivity of Morrissey in the context of presentment is currently under consideration by the Supreme Judicial Court. See Shapiro v. Worcester, SJC–11118, and Greenburg v. Worcester, SJC–11119.
Judgment affirmed.