Case of the Day – Tuesday, January 10, 2017

PARTNERING WITH THE GOVERNMENT

Unfiled lawsuits rarely get better if you continue to delay.

Unfiled lawsuits rarely get better if you continue to delay.

Mr. Balducci had a couple of parcels on Sumner Street. One of them, a property at 240 Sumner, was subject to occasional flooding problems arising from poor drainage. He wanted the problem remedied, so he made a deal to partner up with the Town of Lunenburg to install a drainpipe. Like most deals of this nature, Balducci’s job was simply to pay and the Town’s end of the project was to do the work.

The directionally-challenged workers for the town installed a drainpipe. It’s just that Mr. B had two places, not just one. And you guessed it: the drainpipe was installed at 244 Sumner Street instead of 240 Sumner Street, where it was supposed to be set. The result, of course – besides a drainpipe installed where it wasn’t needed – was that the flooding problems continued at 240 Sumner, where it was needed but not installed.

Mr. Balducci was galvanized into action – some seven years after the error. The mystery is why it took Mr. Balducci so long to notice the Town’s error, and why – after he figured it out a year later – it took him more than six years to sue. There is, of course, a statute of limitations to just about every kind of action, civil or criminal. In the case of contracts in Massachusetts, it’s six years. The Town argued he had waited too long to sue. Mr. Balducci responded that he had six years from time he discovered the mistake – not from the time of the mistake itself – to sue. The Court agreed that the “discovery rule” let him run his time to file a lawsuit from the day he learned of the Town’s blunder.

His victory proved to be a hollow one. Quite often, laws permitting suit against governments contain what are called “exhaustion” requirements. Before you can sue, you have to “exhaust” your administrative remedies by filing a claim with the governmental agency, usually on a prescribed form with a prescribed number of copies and according to a prescribed schedule. The goal, public policy types tell us, is to enable the governmental agency to resolve problems short of lawsuits by promptly and fairly addressing the claimant’s concerns. Horse hockey. The real purpose of the “exhaustion” requirement is to exhaust people like Mr. Balducci, or – barring the grinding down of the citizenry with arcane complaint requirements – setting a snare to trap the unwary.

Mr. Balducci was one of those unwary ones. Whatever he did during the six-year interregnum between discovering that the drainpipe was in the wrong place and suing, he never made demand on the Town to cure its negligence. That meant that his claim for negligence had not been administratively exhausted, and the count was thus thrown out. Unsurprisingly, the Massachusetts Tort Claims law required that such a demand — called “presentment” — be made on the municipality before a lawsuit could be filed.

It is not clear how Mr. Balducci missed the fact the Town had put the drainpipe in the wrong place, or - for that matter - that his property was still a little damp.

It is not clear how Mr. Balducci missed the fact the Town had put the drainpipe in the wrong place, or – for that matter – that his property was still a little damp.

Mr. Balducci had a few other claims to make against the Town, including trespass and wrongful removal of trees. After all, he had given the Town the OK to enter onto 240 Sumner, but not 244 Sumner. Those counts were not subject to an exhaustion requirement, and they survived. But it’s clear that early in his lawsuit, Mr. B already had a big mountain to climb. More careful procedural planning — not to mention being quicker out of the chute — would have saved him some legal headaches now.

Balducci v. Town of Lunenburg, Not Reported in N.E.2d, 2007 WL 4248021 (Mass.Super., Oct. 19, 2007). Tony Balducci owned two properties next to each other on Summer in the Town of Lunenburg. In 2000, he and the Town entered into a written agreement for replacement of a drainpipe located on his property, with Balducci and the Town splitting the cost. He gave the Town an easement for the installation. But instead of installing the drainpipe at 240 Sumner Street, the Town installed it at 244 Sumner Street. As a result, Balducci continued to experience flooding in his building at 240 Summer Street. He sued the Town of Lunenburg, alleging breach of contract, negligence, trespass, willful trespass to trees, and nuisance.

The Town moved to dismiss, arguing that the various counts should be dismissed due to the statute of limitations, a failure to comply with the Massachusetts Tort Claims Act, and failure to state a claim upon which relief may be granted.

Held: The Town’s motion was only granted in part. The Town first argued that Balducci’s claim was barred by the statute of limitations, because he brought the action more than six years after the alleged breach. But the Court observed that the “discovery rule” operates to toll — or suspend — a limitations period until a plaintiff learned or should have learned that he has been injured by the defendant’s conduct. Because Balducci could present facts that show that he only learned of the improper installation of the drainpipe in 2001 when his basement flooded, the Court was unwilling to dismiss the action on the basis of the Town’s motion alone.

Likewise, the Court denied the Town’s argument that the contract action should be dismissed for failure to state a claim. The Court said there were genuine issues of material fact as to whether the Town had permission to install the drainpipe where it did, and whether it did so properly. The agreement was vague as to where the drainpipe should be installed, and the Town’s easement only referred to the agreement.

However, the Town was able to get the negligence claim dismissed. The Massachusetts Tort Claims Act required that a party present its claim in writing before suing. If a party does not fulfill this requirement, its case has to be dismissed for failure to state a claim upon which relief may be granted. Balducci did not aver in his complaint that he has complied with the MTCA, requiring that the negligence count be dismissed.

The trespass claim — that the Town trespassed when it entered the wrong parcel of land to install the drainpipe and that the permanent nature of the drainpipe has created a continuous trespass — would not be dismissed. An action for trespass against a municipality does not come under the MTCA, so Balducci was able to proceed on this claim without making any form of presentment. Balducci’s complaint that the Town unlawfully removed trees from his property in violation of state statute, would not be dismissed.

SL151123Balducci argued that because the easement deed wasn’t recorded until late 2004, the discovery rule barred dismissal of this count under the statute of limitations. While the Court didn’t agree with that argument, it held Balducci appeared to be able to show a set of facts, such as that he did not become aware that trees on the wrong property were cut down until the easement deed was filed in December 2004.

Finally, Balducci argued the Town created a private nuisance when it installed the drainpipe on Balducci’s property. The Town argued the count should be dismissed for failure to state a claim upon which relief may be granted, as the allegations could not constitute a private nuisance. The Court disagreed, noting that where a municipality is the owner or in control of real estate and creates or permits a private nuisance to another person’s real property, it was liable just as a natural person would be. The essense of private nuisance is injury to property or persons outside the public place controlled by the municipality. There was a genuine issue of material fact as to whether the Town installed a drainpipe on property it controlled, which is now causing injury to Balducci’s land.

– Tom Root

TNLBGray

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