Opinion
21-P-842
06-14-2022
GABRIEL SCHMITT v. DIRECTOR OF BOARD OF HEALTH OF MONTAGUE & another. [1]
Summary decisions issued by th[e Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a judgment dismissing his Superior Court negligence and declaratory judgment action. We affirm.
The plaintiff's complaint named, as defendants, Daniel Wasiuk in his "professional capacity" as the town of Montague (town) board of health's director of public health, and Anne Stuart, in her "professional capacity" as the town board of health's clerk. The plaintiff alleged that Wasiuk had inspected the plaintiff's apartment twice "but ha[d] failed to uphold the [s]tate [s]anitary [c]ode and meet his responsibilities under G. L. c. 111, § 127B," and that Stuart "failed to document his request for an inspection." The plaintiff also alleged that the defendants were negligent in their duties. He sought declaratory relief as to the defendants' alleged violations of the state sanitary code and damages on account of their negligence.
Discussion.
We review the allowance of a motion to dismiss de novo. See Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014). We must "accept as true the allegations in the complaint and draw every reasonable inference in favor of the plaintiff." Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674, 676 (2011). We may affirm the allowance of a motion to dismiss the plaintiff's complaint "on any grounds fairly addressed by the record." Marculetiu v. Safety Ins. Co., 98 Mass.App.Ct. 553, 562 (2020).
Negligence.
General Laws c. 258, § 2, immunizes public employees (such as Wasiuk and Stuart) from liability for negligent acts or omissions within the scope of their employment, and it makes their public employers (such as the town) liable instead for such negligence. Moreover, the complaint named Wasiuk and Stuart in their "professional capacities," suggesting that the plaintiff seeks to recover from their employer rather than from them individually. Accordingly, we construe the complaint in the light most favorable to the plaintiff and treat the claims as if they had been asserted against the town.
General Laws c. 258, § 10 (f), however, preserves public employers' sovereign immunity to claims for certain alleged negligent acts:
"any claim based upon the failure to inspect, or an inadequate or negligent inspection, of any property, real or personal, to determine whether the property complies with or violates any law, regulation, ordinance or code, or contains a hazard to health or safety, except as otherwise provided in clause (1) of subparagraph (j)."G. L. c. 258, § 10 (f). "This language applies to situations where the [public employer] inspects the property of third parties, as in the case of an inspection for code compliance." Twomey v. Commonwealth, 444 Mass. 58, 63-64 (2005). Because the plaintiff's claims were based on the alleged negligent inspection of his apartment by employees of the town's board of health, his claims are barred by G. L. c. 258, § 10 (f), and the judge properly dismissed them.
We therefore need not reach the question whether the claims were properly dismissed for failure to make written presentment pursuant to G. L. c. 258, § 4.
State sanitary code.
The plaintiff's claims regarding enforcement of the state sanitary code under G. L. c. 111, §§ 127A, 127B, were properly dismissed, because the plaintiff failed to exhaust his administrative remedies. Section 127A provides in pertinent part that if any local board of health "fail[s] after the lapse of a reasonable length of time to enforce the [code], the [State] department [of public health] may in like manner enforce said code against any violator." Section 127B provides in pertinent part that "[a]ny person aggrieved by the failure of any inspectors or other personnel of the board or other code enforcement agency to inspect upon request . . . may appeal such failure to act to the full board or to the head of the agency."
The complaint, despite documenting the plaintiff's communications with the defendants, gives no indication that the plaintiff availed himself of these remedies in order to obtain the enforcement action to which he claimed he was entitled. "As a general rule, we require parties to exhaust their administrative remedies prior to seeking judicial relief." Luchini v. Commissioner of Revenue, 436 Mass. 403, 404 (2002). The same is true where, as here, a plaintiff seeks declaratory relief. See Villages Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs, 410 Mass. 100, 106 (1991) ("To secure declaratory relief in a case involving administrative action, a plaintiff must show that . . . available administrative remedies have been exhausted"). In sum, all claims regarding the code were correctly dismissed.
The plaintiff sought declaratory relief only against the defendant public employees regarding their alleged failure to do as the sanitary code required, and our decision is limited to these circumstances. We do not address how exhaustion requirements might apply where a plaintiff seeks relief against the owner of a property alleged to contain code violations.
Judgment affirmed.
The panelists are listed in order of seniority.