Leroy & Co. v. City of Worcester

• Decision Date: 20 December 2013
• Docket Number: No. 11–P–1409.,11–P–1409.
• Citation: 84 Mass.App.Ct. 1126,999 N.E.2d 503 (Table)
• Parties: LEROY & CO., INC. v. CITY OF WORCESTER.
• Court: Appeals Court of Massachusetts

84 Mass.App.Ct. 1126

999 N.E.2d 503 (Table)

LEROY & CO., INC.

v.CITY OF WORCESTER.

No. 11–P–1409.

Appeals Court of Massachusetts.

December 20, 2013.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In an unpublished memorandum and order pursuant to our rule 1:28, we affirmed the Superior Court judgment. Leroy & Co., Inc. v. Worcester, 82 Mass.App.Ct. 1110 (2012). Following an application for further appellate review, the Supreme Judicial Court remanded the case to this court for further consideration in light of Shapiro v. Worcester, 464 Mass. 261, 266–270 (2013), which held that the presentment requirements of the Massachusetts Torts Claims Act (MTCA), G.L. c. 258, § 4, did not apply retroactively to claims now covered by the MTCA as a result of Morrissey v. New England Deaconess Assn.—Abundant Life Communities, Inc., 458 Mass. 580 (2010). As a consequence of the remand order, we address the merits of the judge's allowance of the city of Worcester's (city) motion for judgment notwithstanding the verdict. We affirm, albeit for reasons other than those relied on by the judge. See Ezekiel v. Jones Motor Co., 374 Mass. 382, 390 (1978) ; Service Publications, Inc. v. Goverman, 396 Mass. 567, 572 (1986) ; Hastings Assocs., Inc. v. Local 369 Bldg. Fund, Inc., 42 Mass.App.Ct. 162, 163 n. 3 (1997). In the Superior Court and on appeal, the parties briefed and argued the following issues: (1) whether Leroy & Co., Inc.'s (Leroy) intentional trespass claims are covered by the MTCA,¹ (2) whether a cause of action for intentional trespass is barred by G.L. c. 258, § 10(c ), and (3) whether the evidence was sufficient to support the jury verdict in favor of Leroy on the trespass claim.² We need not reach the first two issues, because even if we were to decide them in a manner wholly favorable to Leroy, the judgment notwithstanding the verdict must be affirmed on the grounds that the evidence presented to the jury was insufficient to support a verdict of intentional trespass.

“In reviewing an appeal from a judgment notwithstanding the verdict, we construe the evidence against the moving party and ask whether the evidence nonetheless justifies a verdict against him. D'Annolfo v. Stoneham Hous. Auth., 375 Mass. 650, 657 (1978). We focus on the question whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff. However, a party may not avoid a directed verdict or entry of judgment notwithstanding the verdict against him if any essential element of his case rests upon a mere scintilla of evidence.” Stapleton v. Macchi, 401 Mass. 725, 728 (1988) (citations, quotation, and footnote omitted).

Here there was no evidence on the one issue critical to Leroy's case—the city's responsibility for the movement of the fill and the partial collapse onto Leroy's property. An intentional “trespass requires an affirmative voluntary act ... and in that respect differs from negligence” or negligent trespass. United Elec. Light Co. v. Deliso Constr. Co., 315 Mass. 313, 318 (1943).³ “[A] landowner who intentionally sets in motion a force which in the usual course of events will damage the land of another” is liable for trespass. Id. at 319 (grout pumped into underground conduits escaped, causing damage). See Hennessy v. Boston, 265 Mass. 559, 561 (1929) (baseballs hit from city park); Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 187 (1956) (cinders and other materials emanating from cupola); Fenton v. Quaboag Country Club, 353 Mass. 534, 538 (1968) (golf balls hit into yard). Compare Edgarton v. H.P. Welch Co., 321 Mass. 603, 612 (1947) (“The trend of modern authority is that an unintended intrusion upon the land in possession of another does not constitute a trespass”); Restatement (Second) of Torts § 166 (1965) (unintentional and nonnegligent entry on land is not trespass in absence of ultrahazardous activity).

At trial, Leroy's theory of liability was that the city was responsible for the road atop the embankment that later eroded and collapsed onto Leroy's property. The city does not dispute that the collapse occurred at a time when the road was a city road. However, the evidence at trial was that the road was originally laid out as a county road by the county commissioners in 1849, that the fill of the slope was placed somewhere between 1896 and 1936, and that the road had been at the same level since 1909. There were no city records of assessments, appropriations, or easements which showed...