Opinion
No. 12–P–685.
2013-04-25
Francine PILGRIM v. OUR LADY OF VICTORIES CHURCH & others.
By the Court (VUONO, RUBIN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Pro se plaintiff Francine Pilgrim appeals from a judgment, entered on the defendants' motion pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), dismissing her complaint. Substantially for the reasons stated in the Superior Court judge's comprehensive and well-reasoned opinion, we affirm.
Background. For purposes of a motion to dismiss for failure to state a claim upon which relief can be granted, we treat the allegations of the complaint as true. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). As alleged, Pilgrim resides in Boston's Bay Village neighborhood and owns several properties there that she rents out to others. The defendants operate a homeless shelter in the vicinity visited by up to 125 persons daily, mostly men. Attendance at the shelter is not mandatory and the individuals can come and go at will. Many of the persons visiting the shelter have criminal histories and suffer from mental illness and/or drug and alcohol dependence. The shelter visitors have engaged in acts of vandalism, noise, and general vulgar behavior. One of Pilgrim's tenants was the victim of a breaking and entering by a man from the shelter. A man from the shelter also punched a visitor of one of Pilgrim's tenants. Pilgrim feels threatened by the individuals who visit the shelter and believes that her rental income may be compromised. In her complaint, Pilgrim alleged counts of negligence, nuisance, intrusion upon seclusion,
and intentional infliction of emotional distress. She sought an injunction and damages in the amount of $500,000. The judge dismissed Pilgrim's complaint on the defendants' motion to dismiss.
Pilgrim does not pursue the dismissal of this count on appeal, and the argument is therefore waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See also John Hancock Mut. Life Ins. Co. v. Banerji, 447 Mass. 875, 887 n. 20 (2006).
In addition to their motion to dismiss, the defendants also filed a special motion to dismiss pursuant to G.L. c. 231, § 59H (the “anti-SLAPP” statute), which the judge denied.
We review the grant of a motion to dismiss de novo. Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 373 (2012). To survive a motion to dismiss, a complaint must make “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.” Iannacchino v. Ford Motor Co., supra, quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level ... [based] on the assumption that all the allegations in the complaint are true....” Ibid., quoting from Bell Atl. Corp. v. Twombly, supra at 555.
Negligence. The complaint alleges that the homeless men travel into and out of the neighborhood, that they have broken into a home and assaulted a woman, and that the defendants have failed to see to the safety of the residents of the Bay Village community. A plaintiff in a negligence case must show that the defendant “owed [her] a duty of reasonable care, that the [defendant] committed a breach of that duty, that damage resulted, and that there was a causal relation between the breach of duty and the damage.” Go–Best Assets Ltd. v. Citizens Bank of Mass., 463 Mass. 50, 54 (2012), quoting from Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 (2009). “As a general rule, a landowner does not owe a duty to take affirmative steps to protect against dangerous or unlawful acts of third persons.” Luoni v. Berube, 431 Mass. 729, 731 (2000). An exception to the general rule is found where a “special relationship” exists between the defendant landowner and the plaintiff. Ibid. Pilgrim fails to allege facts that would support the inference of the existence of a special relationship. Pilgrim's negligence claim was properly dismissed.
Pilgrim argues on appeal that the defendants owe her a duty of care arising by operation of law. She contends that the shelter bypassed zoning restrictions by being located in a church. She further contends that, by doing so, a contract arose between Pilgrim and the defendants, and therefore a duty of care. She cites no law for this proposition, and we do not consider it. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Krasne v. Tedeschi & Grasso, 436 Mass. 103, 110 (2002).
We also agree with the judge's dismissal of this count on the basis of failure to allege causation or damages in the form of physical injury or property damage. Pilgrim does not allege any physical harm or property damage that she has suffered. See Cumis Ins. Soc., Inc. v. BJ's Wholesale Club, Inc. 455 Mass. 458, 469 (2009). See also FMR Corp. v. Boston Edison Co., 415 Mass. 393, 395 (1993) (“[P]urely economic losses are unrecoverable in tort and strict liability actions in the absence of personal injury or property damage”).
Nuisance. The complaint alleges that Pilgrim's tenants have been harassed and assaulted, and that their residences have been broken into by homeless men. She also alleges that she has suffered financial loss and resulting emotional distress. She further alleges loss to the value of the neighborhood and city. She does not allege any act or omission on the part of the defendants, other than the shelter's existence, and the fact that homeless people are present there.
Pilgrim's complaint alleges a public nuisance, not a private one. Contrast Taygeta Corp. v. Varian Assocs, Inc., 436 Mass. 217, 230–231 & n. 15 (2002) (plaintiff alleged a private nuisance, not a public one, based on disposal of hazardous waste on the plaintiff's property). “A nuisance is public when it interferes with the exercise of a public right by directly encroaching on public property or by causing a common injury. To maintain a public nuisance action, a plaintiff must show that the public nuisance has caused some special injury of a direct and substantial character other than that which the general public shares.” Connerty v. Metropolitan Dist. Commn., 398 Mass. 140, 148 (1986). Absent such a particularized injury, the proper remedy must be sought by public authorities. Ibid. The gist of Pilgrim's claim is that her neighborhood, and even the city, have declined in value due to the presence of the shelter, and that the residents' well-being and quiet enjoyment have suffered. The harm she alleges is essentially a communal one. She has failed to allege facts showing that she has suffered a particularized injury “different in kind” from the harm the rest of the community has purportedly suffered. See Stop & Shop Cos. v. Fisher, 387 Mass. 889, 894 (1983).
Intentional infliction of emotional distress. The complaint alleges that, after Pilgrim told defendants Belluardo–Crosby and Livingstone of her concerns, they told her to “come and visit the [shelter] and once they (the women) got to know the homeless men there they would not be afraid of them.” The complaint also alleges that the defendants told her that she and other area women “live in the city and should be use[d] to the behavior of the homeless.” Pilgrim argues that these statements constituted “extreme and outrageous” conduct. The most indulgent reading of the complaint cannot support an inference that these statements were “extreme and outrageous,” “beyond all possible bounds of decency,” and “utterly intolerable in a civilized community.” Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976) (citation omitted). Even if the statements were understood in the manner that the plaintiff urges, the statements would fall within the realm of “mere insults, indignities, threats, annoyances, petty oppressions or other trivialities.” Quinn v. Walsh, 49 Mass.App.Ct. 696, 706 (2000), quoting from Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 466 (1997). The statements are therefore not actionable.
Moreover, even assuming the conduct was extreme and outrageous, the complaint fails to allege other facts that would entitle her to relief. In order to state a cognizable claim of intentional infliction of emotional distress, Pilgrim must allege “(1) that the defendant intended to cause, or should have known that his conduct would cause, emotional distress; (2) that the defendant's conduct was extreme and outrageous; (3) that the defendant's conduct caused the plaintiff's distress; and (4) that the plaintiff suffered severe distress.” Roman v. Trustees of Tufts College, 461 Mass. 707, 717–718 (2012), quoting from Sena v. Commonwealth, 417 Mass. 250, 263–264 (1994). No facts alleged plausibly suggest the other elements of a claim for intentional infliction of emotional distress .
Pilgrim does not argue on appeal that the judge erred in dismissing this count as to the operation of the shelter. That claim is therefore waived. See King v. Driscoll, 418 Mass. 576, 585 n. 8 (1994).
Fees and costs. Pilgrim contends that the court erred in denying her request for fees and costs under G.L. c. 231, § 59H. The trial court denied the defendants' special motion to dismiss under § 59H. For that reason, Pilgrim argues that she is entitled to an award of fees and costs because she successfully opposed the defendants' § 59H special motion to dismiss. The statute permits a party to file a special motion to dismiss where any claim infringes on the party's “exercise of its right of petition under the constitution of the United States or of the commonwealth.” G.L. c. 231, § 59H, inserted by St.1994, c. 283, § 1. “If the court grants such special motion to dismiss, the court shall award the moving party costs and reasonable attorney's fees, including those incurred for the special motion and any related discovery matters.” Id. The plain language of the statute provides that the court shall award fees and costs to a party who successfully moves to dismiss a suit on the basis of § 59H. The statute does not permit the court to award fees and costs to the party who successfully opposes a party's special motion to dismiss under § 59H.
Judgment affirmed.