Martini et al v. Pittsfield, City of et al
Filing
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Judge Mark G. Mastroianni: MEMORANDUM AND ORDER entered. For the reasons, the court ALLOWS Defts' motion to dismiss - 13 as to that portion of Count I which asserts claims against Collingwood, McGrath, and Bianchi, Count III; those portions of Count IV which assert negligent trespass claims against Collingwood, McGrath and Bianchi, as well as an intentional trespass claim against the City, Count V, and those portions of Count VI which assert state takings claims as well as state and fed eral due process claims. The Court also ALLOWS Defts' motion but dismisses, WITHOUT PREJUDICE that portion of Count I which asserts a claim against the City, that portion of Count II which asserts a cliam against Bianchi; those portions of Count IV which assert intentional trespass claims against Collingwood, McGrath, and Bianchi, as well as negligent trespass claim against the City; and those portions of Count VI which assert federal takings claims against Bianchi and the City. The court, however, DENIES Defts' motionas to that portion of Count II which asserts claims against Collingwood, McGrath and the City, and that portion of VI which asserts federal takings claims against Collingwood and McGrath. Pltfs' are granted leave to file, within thirty (30) days, an amended complaint reasserting those claims which the court has dismissed without prejudice in order to correct the deficiencies identified herein. (Finn, Mary)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ROSALEEN M. MARTINI
and CHRIS J. MARTINI, JR.,
Plaintiffs,
v.
CITY OF PITTSFIELD, BRUCE
COLLINGWOOD, as Commissioner of the
Department of Public Utilities, JAMES
MCGRATH, as Harbormaster, and
DANIEL L. BIANCHI, as Mayor of the
City of Pittsfield,
Defendants.
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Civil Action No. 14-30152-MGM
MEMORANDUM AND ORDER REGARDING
DEFENDANTS’ MOTION TO DISMISS
(Dkt. No. 13)
March 31, 2015
MASTROIANNI, U.S.D.J.
I. INTRODUCTION
Rosaleen Martini and Chris Martini, Jr. (“Plaintiffs”) brought this action in state court against
the City of Pittsfield (“City”), Bruce Collingwood (the Commissioner of Pittsfield’s Department of
Public Utilities), James McGrath (the Harbormaster of Pittsfield), and Daniel Bianchi (the Mayor of
Pittsfield) (together, “Defendants”). On August 18, 2014, pursuant to 28 U.S.C. § 1441, Defendants
removed the action to this court because it raised a federal question under 28 U.S.C. § 1331.
Plaintiffs’ claims arise out of damage to their property allegedly caused by erosion from
Onota Lake, which is owned and controlled by the City. In particular, Plaintiffs assert claims for
nuisance (Count I), inverse condemnation under M.G.L. c. 79 and M.G.L. c. 81, § 7 (Count II),
negligence (Count III), trespass (Count IV), strict liability for ultrahazardous activity (Count V), and
unauthorized taking in pais and violations of art. 10 of the Massachusetts Declaration of Rights and
the Fifth and Fourteenth Amendments of the United States Constitution (Count VI). Defendants
have filed a motion to dismiss, asserting that Plaintiffs’ complaint fails to state a claim upon which
relief may be granted. For the following reasons, the court will grant Defendants’ motion in part
and deny it in part.
II. BACKGROUND
The following facts, which are stated in a light most favorable to Plaintiffs, see Young v.
Lepone, 305 F.3d 1, 8 (1st Cir. 2002), come directly from the complaint and the attachments thereto.
Plaintiffs possess real property located at 377-379 Pecks Road in Pittsfield (“Premises”). (Dkt. No.
6, Compl. ¶ 8.) The City possesses real property which is a reservoir or pond known as Onota Lake,
along with the dam, water rights, and water privileges. (Id. ¶ 9.) In 1995, the City built a
replacement dam at Onota Lake to control its flow of water. (Id. ¶ 10.) As a result, however, “water
that had previously been diverted away from the Premises was directed at the Premises” and “[t]he
flow from the newly constructed dam began to wash away portions of the Premises.” (Id.) In 1996,
after Plaintiffs complained, the City “installed temporary rip rap (stones piled against an
embankment to prevent erosion) as an attempt to control the erosion of the Premises.” (Id. ¶ 11.)
In 2007, “the City, by and through the Harbormaster, installed siphon pipes in order to draw down
the Lake approximately five to six feet,” but “[t]his caused further erosion to the Premises.” (Id. ¶
12.)
In 2011, “Plaintiffs became aware that the temporary rip rap installed by the City was failing
and [that] the Premises was undergoing continuing erosion.” (Id. ¶ 13.) Thereafter, Plaintiffs
notified the City, which “inspected the premises and acknowledged that the Premises were
continuing to erode.” (Id.) Around this time, Plaintiffs also “noticed that the erosion of the
Premises was endangering structures thereon, including but not limited to Plaintiffs’ fence and
2
garage.” (Id.) “In or about 2012 and 2013, the City, Commissioner, and Harbormaster made verbal
promises and agreements to conduct repairs to the rip rap at the Premises to prevent additional
erosion to the Premises.” (Id. ¶ 14.) In 2014, however, “Plaintiffs were notified that the City did
not have the funds to repair the rip rap and, consequently, no efforts would be made to prevent
further erosion to the Premises.” (Id. ¶ 15.)
On June 24, 2014, Chris Martini, through counsel, sent a letter to Collingwood, McGrath,
and Bianchi (in their capacities as Commissioner, Harbormaster, and Mayor, respectively) explaining
he “has suffered and continues to suffer property damage as a result of the negligent acts and
omissions of the Pittsfield Department of Public Works, the Harbormaster James McGrath, and the
City of Pittsfield.” (Dkt. No. 6, Compl., Ex. C.) He also explained the letter was “being sent
pursuant to Massachusetts General Laws, Chapter 79 Section 10.” (Id.) In addition, the letter
described the replacement dam in 1995, the erosion to the Premises, and promises that the rip rap
would be installed to “control the erosion taking place.” (Id.) The letter further asserted “[t]he
damages suffered by Mr. Martini amount to an unauthorized taking in pais” and that “the City of
Pittsfield, the Department of Public Works, and the Harbormaster are liable for the damages
suffered by Mr. Martini due to their continuing negligent acts and omissions.” 1 On July 22, 2014,
Chris Martini, through counsel, sent another letter to the same individuals, as well as Kathleen
Degnan, the City Solicitor of Pittsfield, explaining that because he had not received a response to
first letter, he intended to file a complaint (which he attached) in Berkshire Superior Court by July
25, 2014. (Dkt. No. 6, Compl., Ex. D.)
On July 31, 2014, Plaintiffs filed their complaint in Berkshire Superior Court. (Dkt. No. 6,
State Ct. R.) As mentioned, Defendants removed the action to this court on August 18, 2014
pursuant to 28 U.S.C. § 1441 and subsequently filed a motion to dismiss.
1
The letter concluded by demanding that a rip rap be installed immediately as well as “the payment of $20,000.00 for the
loss of [Mr. Martini’s] property due to the continuing erosion caused by the redirection of drainage water.” (Id.)
3
III.
STANDARD OF REVIEW
When confronted with a Rule 12(b)(6) motion to dismiss for failure to state a claim, the
court must accept the well-pleaded allegations of the complaint as true, drawing all reasonable
inferences in favor of the plaintiff. See S.E.C. v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). A
complaint that states a plausible claim for relief, on its face, will survive a motion to dismiss. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Supreme Court has explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
IV.
ANALYSIS
Defendants seek dismissal of Plaintiffs’ complaint in its entirety on a number of grounds.
Because this court’s jurisdiction under 28 U.S.C. § 1331 is predicated on Plaintiffs’ federal
constitutional claims, the court will first address Defendants’ arguments targeting those claims.
A. Federal Constitutional Claims (Count VI)
In Count VI, Plaintiffs assert claims for a Fifth Amendment taking and violation of the Due
Process Clause. 2 Defendants argue the claims are not ripe and subject to dismissal, because
Plaintiffs failed to exhaust their state remedies pursuant to Williamson County Reg’l Planning
Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985). Defendants also argue the
claims are barred by the statute of limitations because they accrued over three years before Plaintiffs
brought this action. Defendants next argue that Plaintiffs failed to state a procedural due process
claim because M.G.L. c. 79 provides all the process that is due. In addition, Defendants argue, to
2
Plaintiffs failed to cite in their complaint 42 U.S.C. § 1983, which provides a private right of action for the deprivation
of constitutional rights; however, in their opposition to Defendants’ motion to dismiss they rely on that statute.
Accordingly, the court will analyze these claims under that framework.
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the extent Plaintiffs assert a substantive due process claim, the facts alleged are not sufficiently
egregious as to “shock the conscience.” Defendants further contend Plaintiffs have not alleged
sufficient facts to invoke municipal liability.
In response, Plaintiffs argue they attempted to exhaust their remedies in state court but were
thwarted by Defendants’ removal of the action to this forum. Plaintiffs also contend the claims are
timely based on a “continuing violation” theory, their discovery of additional erosion in 2011, and
the City’s promises to fix the issue. Plaintiffs further argue they sufficiently alleged both procedural
and substantive due process violations and adequate facts to support municipal liability.
1.
State-Exhaustion Requirement
The Supreme Court in Williamson County held that Fifth Amendment takings claims are not
ripe in federal court until the plaintiff has first sought “compensation through the procedures the
State has provided for doing so.” Williamson County, 473 U.S. at 194. The Court explained that
“[t]he Fifth Amendment does not proscribe the taking of property; it proscribes taking without just
compensation.” Id. Accordingly, “if a State provides an adequate procedure for seeking just
compensation, the property owner cannot claim a violation of the Just Compensation Clause until it
has used the procedure and been denied just compensation.” Id. at 195. 3
While this ripeness requirement may, at first glance, appear to constitute an Article III
jurisdictional limitation, the Supreme Court has made clear that it is merely a prudential limitation.
See Horne v. Dep’t of Agriculture, 133 S.Ct. 2053, 2062 (2013) (“Although we often refer to this
consideration as ‘prudential ripeness,’ . . . we have recognized that it is not, strictly speaking,
jurisdictional.”) (citation omitted)); Stop the Beach Renourishment, Inc. v. Florida Dep’t of
3
The same state-exhaustion requirement applies to procedural due process claims which are merely recast versions of
the Fifth Amendment takings claims, as is true here. See Downing/Salt Pond Partners L.P. v. Rhode Island and
Providence Plantations, 643 F.3d 16, 28 (1st Cir. 2011) (“[A] plaintiff cannot, merely by recasting its takings claim ‘in the
raiment of a due process violation,’ evade the Williamson County ripeness requirements.” (quoting Deniz v. Municipality
of Guaynabo, 285 F.3d 142, 149 (1st Cir. 2002))).
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Environmental Protection, 560 U.S. 702, 729 & n.10 (2010) (noting that the Williamson County
ripeness objection is not jurisdictional and “the claim is ripe insofar as Article III standing is
concerned, since (accepting petitioner’s version of Florida law as true) petitioner has been deprived
of property.”); Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 733-34 (1997) (describing
the Williamson County state-exhaustion requirement as a “prudential ripeness” hurdle); Lucas v.
South Carolina Coastal Council, 505 U.S. 1003, 1012-13 (1992). Accordingly, “[u]nlike Article III
requirements—which must be satisfied by the parties before judicial consideration is appropriate—
the relevant prudential factors that counsel against hearing [a] case are subject to ‘countervailing
considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial
power.’” United States v. Windsor, 133 S.Ct. 2675, 2687 (2013) (quoting Warth v. Seldin, 422 U.S.
490, 500-501 (1975)); see also Athanasiou v. Town of Westhampton, 30 F.Supp.3d 84, 88 (D. Mass.
2014) (“Whereas an absence of subject-matter jurisdiction operates as an absolute bar on the power
of a federal court to hear a case, prudential doctrines entail judicially self-imposed limits on the
exercise of federal jurisdiction.”).
The circumstances of this case, the court concludes, raise such “countervailing
considerations” so that the state-exhaustion requirement should not bar this claim. In particular, as
was true in Athanasiou, Plaintiffs originally brought this action, including their state-law inverse
condemnation claim under M.G.L. c. 79, in state court, but Defendants’ removal prevented them
from exhausting their remedies there. See Athanasiou, 30 F.Supp.3d at 88. At the hearing on the
instant motion, Defendants asserted that Plaintiffs should have first brought their claim under
M.G.L. c. 79 in state court and, only after that claim was adjudicated, then pursued their Fifth
Amendment claim. But such an approach is entirely at odds with the Supreme Court’s teachings. In
San Remo Hotel, L.P. v. City & Cnty. of San Francisco, Cal., 545 U.S. 323, 346 (2005), the Supreme
Court held that a state court may hear “simultaneously a plaintiff’s request for compensation under
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state law and the claim that, in the alternative, the denial of compensation would violate the Fifth
Amendment of the Federal Constitution.” The Court continued: “Reading Williamson County to
preclude plaintiffs from raising such claims in the alternative would erroneously interpret our cases
as requiring property owners to ‘resort to piecemeal litigation or otherwise unfair procedures.’” Id.
(quoting MacDonald, Sommer & Frates v. Yolo Cnty., 477 U.S. 340, 350 n.7 (1986)). “Thus,” as the
Athanasiou court explained, “Plaintiffs cannot be blamed for choosing to assert their Fifth
Amendment claim in state court along with their state-law claim.” Athanasiou, 30 F.Supp.3d at 88.
A number of courts have taken the same approach, concluding that a contrary result would
countenance unfair manipulation of litigation tactics by defendants. See Sherman v. Town of
Chester, 752 F.3d 554, 564 (2d Cir. 2014); Sansotta v. Town of Nags Head, 724 F.3d 533, 545-47
(4th Cir. 2013); River North Properties, LLC v. The City & Cnty. of Denver, 2014 WL 1247813, at
*7-9 (D.Colo. March 26, 2014); Merrill v. Summit Cnty., 2009 WL 530569, at *3 (D. Utah March 2,
2009). In particular, the Fourth Circuit in Sansotta explained that the Supreme Court’s reasoning in
Lapides v. Bd. of Regents of the University System of Georgia, 535 U.S. 613, 619 (2002)—in which
it held that a state cannot both invoke federal jurisdiction by removing a case to federal court while
also seeking to deny the judicial power of the United States by asserting Eleventh Amendment state
sovereign immunity—provides “an apt analogy.” Sansotta, 724 F.3d at 545-46. “Based on this
ability for a state potentially to manipulate litigation, the Court [in Lapides] held that ‘removal is a
form of voluntary invocation of a federal court’s jurisdiction sufficient to waive the State’s otherwise
valid objection to litigation of a matter . . . in a federal forum.’” Id. at 546 (quoting Lapides, 535
U.S. at 624). “[I]f we substitute ‘the Williamson County state-litigation requirement’ for ‘Eleventh
Amendment immunity,’” the Fourth Circuit explained, “the logic is precisely the same.” Id.
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The court is persuaded by this analysis. Accordingly, in light of Defendants’ removal of the
action to this forum, the court concludes that they have waived the Williamson County stateexhaustion requirement.
2.
Statute of Limitations
“Section 1983 does not contain a built-in statute of limitations. . . . Thus, a federal court
called upon to adjudicate a section 1983 claim ordinarily must borrow from the forum state’s
limitation period governing personal injury causes of action.” Nieves v. McSweeney, 241 F.3d 46,
51 (1st Cir. 2001) (internal citation omitted). The three-year limitations period for personal injury
actions under M.G.L. c. 260, §2A, therefore, applies to Plaintiffs’ § 1983 claims. See id. Although
“the length of the [limitations] period and tolling doctrine” are governed by state law, “federal law
governs the date on which a cause of action accrues (i.e., when the statute begins to run).” RiveraRamos v. Roman, 156 F.3d 276, 282 (1st Cir. 1998).
Generally, “‘[i]n a § 1983 case concerning the unlawful taking of property, the statute of
limitations begins to run on the date of the wrongful appropriation.’” Vistamar, Inc. v. FagundoFagundo, 430 F.3d 66, 70 (1st Cir. 2005) (quoting Altair Corp. v. Pesquera de Busquets, 769 F.2d 30,
32 (1st Cir. 1985)). The Supreme Court has held, however, that in cases such as this where property
is alleged to have been taken gradually due to government-induced flooding, the statute of
limitations does not accrue “until the situation becomes stabilized,” that is, “until the consequences
of inundation have so manifested themselves that a final account may be struck.” United States v.
Dickinson, 331 U.S. 745, 749 (1947); see also Banks v. United States, 314 F.3d 1304, 1308 (Fed.Cir.
2003) (“[S]tabilization occurs when it becomes clear that the gradual process set into motion by the
government has effected a permanent taking, not when the process has ceased or when the entire
extent of the damage is determined.” (quoting Boling v. United States, 220 F.3d 1365, 1370-71
(Fed.Cir. 2000))). The Supreme Court reasoned that “[i]f suit must be brought, lest [the landowner]
8
jeopardize his rights, as soon as his land is invaded, other contingencies would be running against
him—for instance, the uncertainty of the damage and the risk of res judicata against recovering later
for damage as yet uncertain.” Dickinson, 331 U.S. at 749.
In this case, it is unclear exactly when (or if) the situation became “stabilized” and, thus,
when Plaintiffs’ Fifth Amendment claim accrued. Defendants argue the claim “accrued in 1995 or
1996, and certainly prior to July 31, 2011,” which was three years prior to the commencement of this
action. (Dkt. No. 14, Mem. of Law in Supp. of the Mot. to Dismiss by the Defs. at 16.) But,
according to the complaint, while the original flooding began in 1995, it was apparently remedied in
1996 by the installation of rip rap. It was not until 2007, Plaintiffs allege, that the premises
underwent further erosion after the City installed siphon pipes to draw down the lake. Accordingly,
the two discrete events—the replacement of the dam in 1995 and the installation of siphon pipes in
2007—may be sufficiently attenuated as to represent separate occurrences of takings. In any event,
the Supreme Court explained in Dickinson that “when the Government chooses not to condemn
land but to bring about a taking by a continuing process of physical events, the owner is not
required to resort either to piecemeal or to premature litigation to ascertain the just compensation
for what is really ‘taken.’” Id. at 749. Defendants’ contention that Plaintiffs should have brought
their takings claim shortly after 1995 would appear to require just such piecemeal or premature
litigation.
The court also notes that Plaintiffs did not become aware of the additional erosion and
failure of the rip rap until 2011. See, e.g., Cao v. Puerto Rico, 525 F.3d 112, 115 (1st Cir. 2008) (“[A]
§ 1983 statute of limitations ordinarily accrues when the aggrieved person ‘knows, or has reason to
know, of the injury on which the action is based.’” (quoting Carreras-Rosa v. Alves-Cruz, 127 F.3d
172, 174 (1st Cir. 1997))). Moreover, in 2012 and 2013, the City promised to repair the rip rap in
order to prevent further erosion but only informed Plaintiffs in 2014 that such repairs would not
9
occur. In this sense, the situation is similar to that in Applegate v. United States, 25 F.3d 1579
(Fed.Cir. 1994). In that case, private shoreline slowly receded due to an Army Corps of Engineers
project, but the landowners were repeatedly promised the construction of a sand transfer plant from
which “the landowners would encounter little, if any, permanent destruction of their shoreline
property.” Id. at 1580, 1582. The Federal Circuit explained that “[w]ith promises of a sand transfer
plant . . . the landowners did not know when or if their land would be permanently destroyed” and,
thus, “uncertainty has stayed accrual of the claim.” Id. at 1582-83; see also Banks v. United States,
314 F.3d 1304, 1309-1310 (Fed.Cir. 2003) (holding that, because of Army Corps of Engineers’
efforts to mitigate erosion, landowners were uncertain as to the permanence of the taking and thus
timely brought their claim).
Looking at the facts in the light most favorable to Plaintiffs, the court cannot conclude that
Plaintiffs’ takings claim accrued before July 31, 2011. The court therefore will not dismiss this claim
on statute of limitations grounds.
3.
Due Process
“The Due Process Clause of the Fourteenth Amendment, which prohibits a state from
depriving any person of ‘life, liberty, or property, without due process of law,’ U.S. Const. amend.
XIV, § 1, has both a substantive and a procedural component.” Gonzalez-Fuentes v. Molina, 607
F.3d 864, 879 (1st Cir. 2010). As the Supreme Court has explained, “[i]n procedural due process
claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or
property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an
interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in
original). On the other hand, “[t]he substantive component of due process protects against certain
government actions regardless of the fairness of the procedures used to implement them.”
Gonzalez-Fuentes, 607 F.3d at 880 (quoting Souza v. Pina, 53 F.3d 423, 425-26 (1st Cir. 1995)).
10
“In order to establish a procedural due process claim under section 1983, a plaintiff ‘must
allege first that it has a property interest as defined by state law and, second, that the defendants,
acting under color of state law, deprived it of that property interest without constitutionally adequate
process.’” Marrero-Gutierrez v. Molina, 491 F.3d 1, 8 (1st Cir. 2007) (quoting PFZ Props., Inc. v.
Rodriguez, 928 F.2d 28, 30 (1st Cir. 1991)). Here, the court agrees with Defendants that Plaintiffs’
procedural due process claim fails at the second prong. It is well established that, with regard to
governmental takings, “the compensation need not be paid in advance or at the time of the taking,
as long as there is a procedure in place at the time of the taking that is ‘reasonable, certain and
adequate . . . for obtaining compensation.’” Downing/Salt Pond Partners L.P. v. Rhode Island &
Providence Plantations, 643 F.3d 16, 20 (1st Cir. 2011) (quoting Williamson County, 473 U.S. at
194)); see also Williamson County, 473 U.S. at 195 n.14 (“[T]he Just Compensation Clause has never
been held to require pretaking process or compensation.”). In Massachusetts, that procedure is
available through M.G.L. c. 79, which permits “challenges to both the validity of a taking and the
amount of compensation.” Kelly v. Day, 585 F.Supp.2d 211, 215 (D. Mass. 2008). Accordingly, as
the court explained in Tomaselli v. Beaulieu, 967 F.Supp.2d 423, 447 (D. Mass. 2013), the existence
of such a procedural scheme “precludes the plaintiffs’ procedural due process claim under § 1983.”
See also Presley v. City of Charlottesville, 464 F.3d 480, 490 (4th Cir. 2006) (“[W]hen the alleged
deprivation is effectively a physical taking, procedural due process is satisfied so long as private
property owners may pursue meaningful postdeprivation procedures to recover just
compensation.”); Pande Cameron & Co. of Seattle, Inc. v. Central Puget Sound Reg’l Transit Auth.,
610 F.Supp.2d 1288, 1309 (W.D. Wash. 2009) (“[T]he Just Compensation Clause of the Fifth
Amendment to the United States Constitution does not require pre-taking process or compensation:
a state inverse condemnation action is all the procedure that is due if a property owner contends the
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government has taken his or her property.”). The court will therefore dismiss that portion of Count
VI which asserts a procedural due process claim.
The court also agrees with Defendants that the allegations here do not rise to the level of a
substantive due process violation. “State conduct violates an individual’s substantive-due-process
rights when it is ‘so brutal, demeaning, and harmful that it is shocking to the conscience.’” Elena v.
Municipality of San Juan, 677 F.3d 1, 7-8 (1st Cir. 2012) (quoting Maymi v. P.R. Ports Auth., 515
F.3d 20, 30 (1st Cir. 2008)); see also Freeman v. Town of Hudson, 714 F.3d 29, 40 (1st Cir. 2013)
(“[Substantive due process] claims are limited to government action that, by its very nature, shock[s]
the conscience . . . and [are] reserve[d] . . . for truly horrendous situations.” (internal quotation marks
and citations omitted)); Harron v. Town of Franklin, 660 F.3d 531, 536 (1st Cir. 2011) (“[T]he test is
primarily concerned with violations of personal rights so severe[,] so disproportionate to the need
presented, and so inspired by malice or sadism rather than a merely careless or unwise excess of zeal
that it amounted to a brutal and inhumane abuse of official power literally shocking to the
conscience.” (quoting Gonzalez-Fuentes, 607 F.3d at 881)). Plaintiffs argue that “[p]roof that a
land-use decision was motivated by personal gain, individual discriminatory intent, or political
considerations can form the basis for [a substantive due process] claim.” (Dkt. No. 15, Opp’n and
Mem. of Law of the Pls. at 14.) But even if that is so, Plaintiffs’ complaint is completely devoid of
such allegations. Accordingly, the court will also dismiss that portion of Count VI which asserts a
substantive due process claim. 4
4
In addition, the court will dismiss Plaintiffs’ state due-process claims brought under art. 10 of the Massachusetts
Declaration of rights because Plaintiffs have not sufficiently demonstrated the state-law provisions provide greater
protection in this context. See, e.g., Christensen v. Kingston Sch. Comm., 360 F.Supp.2d 212, 215 n.1 (D. Mass. 2005)
(noting that “the federal and Massachusetts standards for a procedural due process analysis are identical” and treating
the federal and state substantive due process claims identically because the plaintiff had not argued “that the
Massachusetts Declaration of Rights provides greater substantive protections in this context” (internal quotation marks
omitted) (citing Liability Investigative Fund Effort, Inc. v. Massachusetts Med. Prof. Ins. Ass’n, 636 N.E.2d 1317, 1322
(Mass. 1994))); see also Gillespie v. City of Northampton, 950 N.E.2d 377, 382 n.12 (Mass. 2011).
12
4.
Municipal Liability
“[A] municipality cannot be held liable for the constitutional violations of municipal
employees on a respondeat superior theory.” Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756,
769 (1st Cir. 2010) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). “Instead,
liability attaches to a municipality under § 1983 ‘only if the violation occurs pursuant to an official
policy or custom.’” Id. (quoting Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir. 2008)). “A plaintiff
can establish an official policy,” however, “‘by showing that the alleged constitutional injury was
caused by . . . a person with final policymaking authority,’” even based on a single decision by such a
final policymaker. Id. (quoting Welch, 542 F.3d at 941). In addition, a plaintiff may also point to a
municipality’s custom or practice that is “so permanent and well settled as to constitute a ‘custom or
usage’ with the force of law.” Monell, 436 U.S. at 691 (quoting Adickes v. S. H. Kress & Co., 398
U.S. 144, 167-68 (1970)).
In this case, although Plaintiffs correctly identify this standard in their brief, their complaint
fails to allege any facts reflecting an official policy or custom which would permit municipal liability.
Despite this failure, however, the court finds it unlikely that the City’s actions with regard to Onota
Lake were not tied to an official policy or custom or the decision of a final policymaker.
Accordingly, the court will dismiss that portion of Count VI which asserts a § 1983 takings claim
against the City 5 without prejudice and grant Plaintiffs leave to amend their complaint in case
additional facts exist to support allegations of municipal liability. See Charles Alan Wright, Arthur
5
The court notes that Plaintiffs did not indicate in their complaint whether Collingwood, McGrath, and Bianchi are
being sued in their individual capacities, their official capacities, or both. They explain in their brief, however, that these
defendants are named in both their individual and official capacities. The court will therefore treat Plaintiffs’ complaint
as asserting individual-capacity claims, see Powell v. Alexander, 391 F.3d 1, 22 (1st Cir. 2004) (adopting the “course of
proceedings” test); official-capacity claims, however, would be redundant since Plaintiffs also name the City of Pittsfield
and such official-capacity claims are actually against the entity itself, see, e.g., Decotiis v. Whittemore, 635 F.3d 22, 38
n.19 (1st Cir. 2011). The court also notes that Defendants have not yet raised a qualified immunity defense but, instead,
opted to “reserve on this issue given the lack of sufficient facts.” (Dkt. No. 14, Mem. of Law in Supp. of the Mot. to
Dismiss at 19.) As to Bianchi in particular, Defendants are correct that the complaint fails to allege any facts against him
whatsoever. Accordingly, the court will also dismiss all claims against Bianchi but without prejudice to Plaintiffs
reasserting certain claims against him, based on specific allegations, in any amended complaint.
13
R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1483 (3d ed. 2010) (“Ideally, if it is at
all possible that the party against whom a dismissal is directed can correct the defect in the pleading
or state a claim for relief, the court should dismiss with leave to amend.”).
B. State Takings Claims (Counts II and VI)
Plaintiffs assert an inverse condemnation 6 claim under M.G.L. c. 79 and M.G.L. c. 81, § 7 in
Count II as well as a taking in pais claim under art. 10 of the Massachusetts Declaration of Rights in
Count VI. The Supreme Judicial Court has explained that “G.L. c. 79 . . . embodies rights
guaranteed under art. 10 of the Declaration of Rights,” Bromfield v. Treasurer & Receiver Gen., 459
N.E.2d 445, 449 n.11 (Mass. 1983), and that Chapter 79 “creates a comprehensive scheme that
defines the rights and obligations of parties involved in property takings,” Locator Servs. Group,
Ltd. v. Treasurer & Receiver Gen., 825 N.E.2d 78, 93 (Mass. 2005); see also Whitehouse v. Town of
Sherborn, 419 N.E.2d 293, 297 (Mass. App. Ct. 1981) (“There is no doubt that by enacting c. 79, the
Legislature meant to fashion an exclusive statutory remedy for takings made thereunder . . . .”);
Kelly, 585 F.Supp.2d at 215 (“In Massachusetts, M.G.L. c. 79 is the exclusive remedy for challenging
the exercise of eminent domain.”). Accordingly, the court will analyze Plaintiffs’ inverse
condemnation claim under M.G.L. c. 79 and will dismiss as duplicative their takings claims brought
directly under the Massachusetts Declaration of Rights. 7
Defendants seek dismissal of this claim, as they did with regard to the federal takings claim,
on the ground that it is untimely. MASS. GEN. LAWS ch. 79, § 10 authorizes damages when real
estate “has been taken for the public use or has been damaged by the construction, maintenance,
6
“The inverse-condemnation doctrine allows a plaintiff to seek a remedy from a government actor that has bypassed the
formal eminent domain process and taken property from the plaintiff.” Elena, 677 F.3d at 7 n.9. In Massachusetts, as
discussed below, M.G.L. c. 79, § 10 authorizes a remedy in just such a situation. See, e.g., Gilbert v. City of Cambridge,
745 F.Supp. 42, 52 (D. Mass. 1990) (collecting cases).
7 As for Plaintiffs’ reference to M.G.L. c. 81, § 7, that statute relates to the acquisition of property for the purposes of a
state highway. The court thus agrees with Defendants that it has no application here.
14
operation, alteration, repair or discontinuance of a public improvement or has been entered for a
public purpose, but such taking, entry or damage was not effected by or in accordance with a formal
vote.” Section 10 also provides that a person whose property has been taken or damaged by a party
acting on a municipality’s behalf may directly petition the municipal officer or board for an award of
damages. Id. Instead of directly petitioning the municipality, “[h]owever, a person entitled to
compensation under G.L. c. 79 may petition the Superior Court for an assessment of damages”
under M.G.L. c. 79, § 14. Meldon v. Town of Barnstable, 2006 WL 2006168, at *2 (Mass. Super.
March 31, 2006) (discussing the interplay between M.G.L. c. 79 §§ 10, 14, and 16). Under section
16, “[a] petition for the assessment of damages under section fourteen may be filed within three
years after the right to such damages has vested.” MASS. GEN. LAWS ch. 79, § 16. Accordingly, as
Defendants recognize, Plaintiffs’ inverse condemnation claim is governed by a three-year statute of
limitations. 8 See Meldon, 2006 WL 2006168, at *3 (“Under G.L. c. 79, § 16, a person has three years
from the time of a taking in which to file a claim in Superior Court pursuant to G.L. c. 79, § 14.”).
The court notes the Supreme Judicial Court, in explaining that “[t]he Legislature did not
intend to put the burden upon the landowner to determine when in the partial performance of a
piece of work the period for bringing a petition would start to run against him,” cited Dickinson,
331 U.S. 745, in which the Supreme Court held that a plaintiff may delay bringing a takings claim
until the government-induced flooding “stabilized.” United States Gypsum Co. v. Mystic River
Bridge Auth., 106 N.E.2d 677, 684 (Mass. 1952); see also Grasso v. City of New Bedford, 2002 WL
31039718, at *12 (Mass. App. Ct. Sept. 12, 2002) (unpublished) (“The EOEA’s actions, however,
were ongoing in nature, and it is not apparent in looking to the pleadings whether any singular act, in
8
Section 16 also provides an exception such that a landowner “whose property has been taken or injured, and who has
not received notice under section eight or otherwise of the proceedings whereby he is entitled to damages at least sixty
days before the expiration of such three years, may file such petition within six months after the taking possession of his
property or the receipt by him of actual notice of the taking, whichever first occurs, or, if his property has not been
taken, within six months after he first suffers actual injury in his property.” MASS. GEN. LAWS ch. 79, § 16.
15
and of itself, rose to the level of a taking.”); cf. Blair v. Dep’t of Conservation & Recreation, 932
N.E.2d 267, 274 (Mass. 2010) (“[W]e have interpreted art. 10 consistently to provide property
owners the same protection afforded under the just compensation clause of the Fifth
Amendment.”). Moreover, as mentioned, the City repeatedly promised to fix the issue. See
Mangiasi v. Town of Billerica, 1993 WL 13154164, at *3 (Mass. Land Ct. Nov. 1, 1993) (“By
repeatedly reassuring Plaintiffs during this period that the matter would be taken care of, the Town
acknowledged that Plaintiffs still had rights in Locus, which rights were not foreclosed by a taking,
in pais or otherwise. In balancing the equities of this matter, the statute of limitations must be
tolled.”). The court simply cannot conclude at this point, as with the federal takings claim, that
Plaintiffs’ state takings claim is barred by the statute of limitations. Accordingly, Plaintiff’s state
inverse condemnation claim is not dismissed.
C. Massachusetts Tort Claims Act: Nuisance, Negligence, and Trespass (Counts I, III, and IV)
Plaintiff asserts claims for nuisance in Count I, negligence in Count III, and trespass in
Count IV. As the parties recognize, these claims fall under the Massachusetts Tort Claims Act
(“MTCA”), M.G.L. c. 258, § 1 et seq., which provides “a comprehensive statutory scheme . . .
govern[ing] the liability of public employers in tort actions.” Morrissey v. New England Deaconess
Ass’n—Abundant Life Cmtys., Inc., 940 N.E.2d 391, 400 (Mass. 2010).
Pursuant to the MTCA, claims based on the negligent or wrongful conduct of public
employees who acted within the scope of their employment may only be brought against the “public
employer”—in this case, the City—and not against the individual employees; however, claims based
on intentional torts may not be brought against the public employer, although they may be brought
against the individual employees. See MASS. GEN. LAWS. ch. 258, §§ 2, 10(c). The MTCA also
contains a “presentment” requirement, which prescribes that suits against public employers for
16
damages may only be brought if the plaintiff “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,
and such claim shall have been finally denied by such executive officer in writing and sent by
certified or registered mail.” MASS. GEN. LAWS. ch. 258, § 4. If, however, the executive officer fails
“to deny such claim in writing within six months after the date upon which it is presented,” this is
deemed to be “a final denial of such claim,” which would permit the filing of a lawsuit following
presentment. Id. And, in addition to the two-year-limitations period for sending presentment, the
MTCA also provides that “[n]o civil action shall be brought more than three years after the date
upon which such cause of action accrued.” Id.
Defendants argue these claims should be dismissed against the City because Plaintiffs failed
to comply with the presentment requirements and filed their claims over three years after they
accrued. Defendants also argue Plaintiffs’ trespass claim against the City should be dismissed
because it is an intentional trespass claim for which the MTCA provides immunity. In addition,
Defendants argue the individual defendants are immune from these claims under the MTCA.
Moreover, Defendants argue that, to the extent Plaintiffs have asserted an intentional trespass claim,
they have alleged insufficient facts to support intent and the individual defendants are also immune
from intentional torts because they have only been sued in their official capacities.
1. Presentment
As an initial matter, Plaintiffs are correct that they need not allege compliance with the
presentment requirement in their complaint. See Vasys v. Metro. Dist. Comm’n, 438 N.E.2d 836,
840 (Mass. 1982) (“When a proper presentment has been made, a plaintiff’s failure to include, in his
complaint, an allegation that all conditions precedent have been performed, will have no effect on
the outcome of the case.”). In fact, however, the presentment letters, which Plaintiffs attached as
17
exhibits to their opposition to Defendants’ motion, were also attached to their complaint. (See Dkt.
No. 6, State Court Record, Ex. C and Ex. D.)
With regard to the two-year presentment statute of limitations, Plaintiffs appear to concede
their claims accrued in 2011 when they discovered the additional erosion and the failure of the rip
rap. 9 See Taygeta Corp. v. Varian Assocs., Inc., 763 N.E.2d 1053, 1063 (Mass. 2002) (“Ordinarily,
actions in tort accrue at the time the plaintiff is injured”; however, the “‘discovery rule’ . . . tolls the
statute of limitations until a plaintiff knows, or reasonably should have known, that it has been
harmed or may have been harmed by the defendant’s conduct.”). Accordingly, even under
Plaintiffs’ version of events, they ordinarily would have been required to send presentment in 2013.
See MASS. GEN. LAWS ch. 258, § 4. As explained below, however, Plaintiffs have sufficiently alleged
continuing or recurring nuisance and trespass, under which property rights are invaded from time to
time because of repeated wrongs resulting in new harm to the property on each occasion. See
Taygeta Corp., 763 N.E.2d at 1064-65. And the Supreme Judicial Court has held that “[w]here the
tortious conduct is a continuing event, the two-year presentment requirement is tolled” such that
presentment is considered timely despite being sent over two years after initial accrual. Doe v.
Town of Blandford, 525 N.E.2d 403, 409 (Mass. 1988). Accordingly, Plaintiffs’ failure to send
presentment in 2013 does not warrant dismissal of the nuisance and trespass claims against the City.
The same cannot be said for the negligence claim. First, there is case law holding that
general negligence claims are not susceptible to the continuing violation doctrine; rather, the
doctrine “is limited to claims of nuisance and trespass.” Vander Salm v. Bailing & Assocs., Inc.,
2014 WL 1117017, at *6 (D. Mass. March 18, 2014) (collecting cases). Second, in any event, the
court reads the complaint as asserting a negligence claim based on affirmative conduct in 2007, i.e.,
9
The court notes that the date for accrual of Plaintiffs’ takings claims and their nuisance, negligence, and trespass claims
are not necessarily the same. See, e.g., Ridge Line, Inc. v. United States, 346 F.3d 1346, 1355 (Fed. Cir. 2003)
(distinguishing between conduct giving rise to claims for takings and that which merely rises to the level of a tort).
18
the installation of the siphon pipes to draw down Onota Lake, and not continuing acts up through
the present. See Carpenter v. Texaco, 646 N.E.2d 398, 399 (Mass. 1995) (holding that the
continuing violation doctrine “must be based on recurring tortious or unlawful conduct and is not
established by the continuation of harm caused by previous but terminated tortious or unlawful
conduct”).
Still, Plaintiffs contend the “lulling” and “actual notice” exceptions to presentment apply.
The court does not agree.
[U]nder the “lulling” exception, the public employer will be estopped from asserting
any defect in presentment, including failure to make presentment to the proper
individual, if, during the conduct of the litigation and at a time when presentment
still could have been made, the plaintiff was led to believe that presentment would
not be an issue in the case.
Bellanti v. Boston Pub. Health Comm’n, 874 N.E.2d 439, 445 (Mass .App. Ct. 2007). Here, there
are no facts indicating that Defendants made any statements to Plaintiffs during the course of this
litigation indicating that presentment would not be an issue or affirmatively waiving presentment.
See Federal Ins. Co. v. Boston Water & Sewer Comm’n, 583 F.Supp.2d 225, 232-33 (D. Mass. 2008)
(“The lulling exception is not applicable in this case because BWSC’s statements, to the extent that
any were inconsistent with a presentment defense, were made prior to FIC’s commencement of this
lawsuit. . . . Those statements also fall short of an affirmative waiver of the presentment defense.”
(internal citation omitted)); Garcia v. Essex County Sheriff’s Dep’t, 837 N.E.2d 284, 290 (Mass.
App. Ct. 2005) (“To ‘lull’ a plaintiff into believing that presentment is not an issue, the defendant
must affirmatively indicate that the presentment requirement has been met or is waived.”). “Second,
under the ‘actual notice’ exception, the presentment requirement will be deemed fulfilled if the
plaintiff can show that, despite defective presentment, the designated executive officer had actual
notice of the written claim.” Bellanti, 874 N.E.2d at 445. Here, Plaintiffs admit that, prior to the
June 24th letter, the mayor, see M.G.L. c. 258, § 1 (defining “executive officer” as “the mayor of a
19
city”), did not have actual notice of any written claim but only, perhaps, oral notice. Accordingly,
because neither the lulling nor the actual notice exceptions to the presentment rule apply and
Plaintiffs have not demonstrated the applicability of any other exception, the negligence claim is
barred based on the failure to send presentment within two years of the claim’s accrual. See, e.g.,
Martin v. Commonwealth, 760 N.E.2d 313, 315 (Mass. App. Ct. 2002) (“[P]resentment must be
made ‘in strict compliance with the statute.’” (quoting Weaver v. Commonwealth, 438 N.E.2d 831,
834 (Mass. 1982)). The court will therefore dismiss Count III against the City.
The nuisance and trespass claims, however, are not completely out of the woods in light of
the final denial requirement. It is undisputed that the mayor never finally denied the claims
contained in the presentment letters in writing. 10 Therefore, Plaintiffs were required to wait six
months after sending the letters, or until December 24, 2014 at the earliest, to assert these claims
against the City. See MASS. GEN. LAWS ch. 258, § 4; see also Estate of Gavin v. Tewksbury State
Hosp., 9 N.E3d 299, 303 (Mass. 2014) (“The public employer has six months from presentment to
deny the claim or reach a settlement, and a failure to respond is considered a denial. At the end of
six months, the claimant may institute a civil action.”). Nevertheless, “[p]resentment is not
jurisdictional but [only] a ‘statutory condition precedent to recovery under G.L. c. 258.’” Estate of
Gavin, 9 N.E.3d at 303 (quoting Vasys, 438 N.E.2d at 840)). Thus, a failure to strictly comply with
the presentment requirements does not deprive the court of subject matter jurisdiction, and courts
often explain that defects in presentment may be cured even after a suit is brought. See Vasys, 438
N.E.2d at 840 (“If there is some question concerning proper presentment, and the plaintiff’s
complaint is filed well within § 4’s two statute of limitations, the defendant’s answer will so inform
the plaintiff in time for any defective presentment to be cured.”). Accordingly, because the nuisance
and trespass claims were premature when the complaint was originally filed, the court will dismiss
10
While Plaintiffs contend that Defendants’ oral statements that they would not fix the issue constituted the requisite
“final denial,” the statute calls for both the presentment and the denial following presentment to be in writing.
20
Counts I and IV against the City but without prejudice to Plaintiffs reasserting these claims in an
amended complaint in light of the fact that the six-month waiting period has since elapsed.11
2.
Statute of Limitations
In addition to asserting the two-year presentment statute of limitations, Defendants also
argue the nuisance and trespass claims against the city are barred based on the MTCA’s three-year
statute of limitations. See MASS. GEN. LAWS ch. 258, § 4. As Defendants essentially conceded at the
hearing on the instant motion, however, the continuing violation doctrine applies to these claims.
The Supreme Judicial Court has explained that “[a]n action for a continuing nuisance allows a
plaintiff whose claim otherwise would be untimely to sue where its property rights are invaded from
time to time because of repeated or recurring wrongs, resulting in new harm to the property on each
occasion.” Taygeta Corp., 763 N.E.2d at 1064. “[A] continuing trespass or nuisance must be based
on recurring tortious or unlawful conduct and is not established by the continuation of harm caused
by previous but terminated tortious or unlawful conduct.” Id. at 1065 (quoting Carpenter, 646
N.E.2d at 399). These claims fit comfortably within the continuing violation doctrine. See, e.g., id.
(“Taygeta’s nuisance claim is based on the continuing seepage of pollutants that is still occurring
within the statute of limitations.”). Accordingly, the MTCA’s three-year statute of limitations does
not bar the nuisance and trespass claims against the City, although any damages would be limited to
those caused during the applicable limitations period. See Harrison v. Textron, Inc., 328 N.E.2d
838, 845 (Mass. 1975).
3.
Trespass as an Intentional Tort
Defendants next assert that Plaintiffs’ claim for trespass against the City is barred because
Plaintiffs pled intentional trespass and M.G.L. c. 258, § 10(c) immunizes municipalities from
11
Despite concluding that Plaintiffs’ nuisance and trespass claims against the City must be dismissed (but without
prejudice), the court will address Defendants’ remaining arguments for dismissal of the claims because such arguments,
if convincing, could lead the court to dismiss the claims with prejudice. Ultimately, as discussed below, the court finds
these arguments unavailing and, therefore, will permit Plaintiffs to re-allege the claims in an amended complaint.
21
intentional torts. Plaintiffs’ complaint, however, alleges the “conditions and circumstances [giving
rise to the trespass claim] were created by the negligent and/or intentional acts or omissions of
Defendants.” (Dkt. No. 6, Compl. ¶ 34.) Plaintiffs, therefore, have alleged both negligent and
intentional trespass. See DeSanctis v. Lynn Water & Sewer Comm’n, 666 N.E.2d 1292, 1297 (Mass.
1996) (“A Plaintiff may recover under the theory of negligent trespass if the jurors determine that
the defendant was negligent and that the defendant’s negligent entry onto the plaintiff’s land caused
the plaintiff harm.”); Leroy & Co. v. City of Worcester, 2013 WL 6689005, at *1 (Mass.App.Ct.
2013) (unpublished) (“An intentional ‘trespass requires an affirmative voluntary act . . . and in that
respect differs from negligence’ or negligent trespass.” (quoting United Elec. Light Co. v. Deliso
Constr. Co., 52 N.E.2d 553, 556 (Mass. 1943))). Because it is undisputed that the individual
defendants acted within the scope of their employment, the MTCA does not bar Plaintiffs’ negligent
trespass claim against the City. See MASS. GEN. LAWS. ch. 258, § 2. Plaintiffs’ intentional trespass
claim against the City, however, is dismissed. See MASS. GEN. LAWS. ch. 258, § 10(c).
4. Individual Defendants
Defendants argue the nuisance, negligence, and trespass claims against the individual
defendants should be dismissed because they are immune from suit under M.G.L. c. 258, § 2.
Moreover, Defendants argue, to the extent the trespass claim is based on intentional conduct, it also
must be dismissed because there are no allegations that these defendants made an intentional entry
onto Plaintiffs’ property, and Plaintiffs have sued the individual defendants in their official
capacities, which means that the intentional tort immunity under M.G.L. c. 258, § 10(c) also applies
to them.
The court agrees with Defendants that M.G.L. c. 258, § 2 bars the nuisance, negligence, and
negligent trespass claims against the individual defendants because they are based merely on
negligent or wrongful conduct, as opposed to intentional conduct. See MASS. GEN. LAWS ch. 258, §
22
2 (“[N]o . . . public employee . . . shall be liable for any injury or loss of property or personal injury
or death caused by his negligent or wrongful act or omission while acting within the scope of his
office or employment . . . .”). The court also agrees with Defendants that Plaintiffs have not alleged
sufficient facts to state an intentional trespass claim. See Leroy & Co., 2013 WL 6689005, at *1.
Accordingly, the court will dismiss the nuisance, negligence, and negligent trespass claims against the
individual Defendants. The court will also dismiss the intentional trespass claim against the
individual defendants but without prejudice to Plaintiffs reasserting this claim, based on specific
allegations, in an amended complaint. 12
D. Strict Liability for Ultrahazardous Activity (Count V)
In Count V, Plaintiffs assert a claim for strict liability for an ultrahazardous activity, namely,
the storage of water behind a dam on Defendants’ property which ultimately released water flowing
onto Plaintiffs’ property. Defendants seek dismissal of this claim on the ground that the MTCA
only provides for municipal liability for “negligent or wrongful conduct” and this theory permits
liability without regard to fault. Plaintiffs respond by arguing the strict liability theory is based on
common law principles and that, under such theory, property damage caused by abnormally
dangerous activity constitutes “wrongful” conduct under the MTCA such that municipal liability is
available.
12
As for Defendants’ argument that Plaintiffs have asserted official capacity claims, the court, as discussed in footnote 5
of this decision, has already deemed their complaint to assert individual-capacity claims. While Defendants point to
language in the complaint stating that “at all times mentioned in this complaint, Commissioner, Harbormaster were the
agents and employees of the city, and in doing the things alleged in this complaint were acting within the course and
scope of such agency and employment” (Dkt. No. 6, Compl. ¶ 7), this allegation discusses whether Defendants acted
within the scope of their employment, an entirely different issue than the capacity in which a person is being sued. See
Hafer v. Melo, 502 U.S. 21, 26 (1991) (“[T]he phrase ‘acting in their official capacities’ is best understood as a reference
to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.”).
Plaintiffs would be wise, however, to provide greater clarity with regard to the capacity issue in their amended complaint,
should they choose to file one.
23
Defendants have the stronger argument. The MTCA had the effect of waiving the
Commonwealth of Massachusetts’s sovereign immunity to suit (which extended to municipalities),
but only in the instances allowed by the statute. See Audette v. Commonwealth, 829 N.E.2d 248,
256 (Mass.App.Ct. 2005) (“[T]he Commmonwealth has waived sovereign immunity for certain tort
actions against it pursuant to the [MTCA], and an action for ordinary or gross negligence is
permitted under the [MTCA] because it constitutes ‘negligent or wrongful act or omission’ . . . .”).
In Audette, the court held the dog bite statute, M.G.L. c. 140, § 155, which allows for strict liability,
is inconsistent with the MTCA: “The dog bite statute is a strict liability statute, imposing liability
without requiring misfeasance or nonfeasance by the owner or keeper, whereas these are conditions
required for an action under G.L. c. 258.” Id. The same is true here. Although Plaintiffs are correct
that the strict liability at issue in Audette was based on a statute, whereas here it is based on a
common law theory, the same analysis applies. Because the abnormally dangerous activity theory
imposes liability without regard to fault, see Clark-Aiken Co. v. Cromwell-Wright Co., 323 N.E.2d
876, 878 (Mass. 1975), and the MTCA requires some negligent or wrongful conduct for a public
employer to be held liable, a municipality cannot be held liable under such a theory. 13 Cf. Dalehite v.
United States, 346 U.S. 15, 45 (1953) (holding that the United States cannot be held liable under
Federal Tort Claims Act (“FTCA”) under an ultrahazardous activity theory because the FTCA
precludes imposition of liability if there has been no negligence or wrongful act or omission; some
form of misfeasance or nonfeasance required), overruled on other grounds by Rayonier, Inc. v.
United States, 352 U.S. 315 (1957); Laird v. Nelms, 406 U.S. 797, 798-799 (1972) (same). The court
will therefore dismiss Count V.
13 In addition, to the extent this claim is also asserted against the individual defendants, the same result is warranted
because a strict liability claim does not equate to an intentional tort, pursuant to which public employees may be held
liable under M.G.L. c. 258, § 10(c). See Hanks v. Town of Montague, 2007 WL 1202861, at *1 (Mass. App. Ct. April 24,
2007) (unpublished) (stating that the trial court’s holding that “the doctrine of sovereign immunity precludes imposition
of strict liability on public employers and employees” was “unassailable” in light of Audette (emphasis added)).
24
V.
CONCLUSION
For these reasons, the court ALLOWS Defendants’ motion to dismiss (Dkt. No. 13) as to
that portion of Count I which asserts claims against Collingwood, McGrath, and Bianchi; Count III;
those portions of Count IV which assert negligent trespass claims against Collingwood, McGrath,
and Bianchi, as well as an intentional trespass claim against the City; Count V; and those portions of
Count VI which assert state takings claims as well as state and federal due process claims.
The court also ALLOWS Defendants’ motion but dismisses WITHOUT PREJUDICE that
portion of Count I which asserts a claim against the City; that portion of Count II which asserts a
claim against Bianchi; those portions of Count IV which assert intentional trespass claims against
Collingwood, McGrath, and Bianchi, as well as a negligent trespass claim against the City; and those
portions of Count VI which assert federal takings claims against Bianchi and the City.
The court, however, DENIES Defendants’ motion as to that portion of Count II which
asserts claims against Collingwood, McGrath, and the City; and that portion of Count VI which
asserts federal takings claims against Collingwood and McGrath. Plaintiffs are granted leave to file,
within thirty days, an amended complaint reasserting those claims which the court has dismissed
without prejudice in order to correct the deficiencies identified herein.
It is So Ordered.
_/s/ Mark G. Mastroianni________
MARK G. MASTROIANNI
United States District Judge
25
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