Alholm v. Town of Wareham

• Citation: 358 N.E.2d 788,371 Mass. 621
• Parties: Mary V. ALHOLM v. TOWN OF WAREHAM et al. (and three companion cases 1 ).
• Decision Date: 31 December 1976
• Court: United States State Supreme Judicial Court of Massachusetts

Page 788

358 N.E.2d 788

371 Mass. 621

Mary V. ALHOLM

v. TOWN OF WAREHAM et al. (and three companion cases

¹

).

Supreme Judicial Court of Massachusetts.

Argued Sept. 14, 1976.

Decided Dec. 31, 1976.

The cases were submitted on briefs.

Mario Misci, Boston, for Mary V. Alholm, submitted a brief.

Joseph R. Grassia, Town Counsel, for the Town of Wareham & Charles R. Desmarais, New Bedford, for the First National Bank Building, joined in a brief.

William J. Dailey, Jr., Boston, for Albert Guidaboni and others.

William J. Fenton, Frederick C. Campbell, Taunton, and William J. Dailey, Jr., Boston, for Andrew Barrs and another, submitted a brief.

David D. Leahy, Boston, for David L. Jackson, Robert J. Reynolds, Boston, for John L. Sylvia, Jr., joined in a brief.

Philander S. Ratzkoff, James F. Meehan, and Richard L. Neumeier, Boston, for H. P. Hood, Inc., and another, submitted a brief.

William G. Burke, Braintree, for Alfred W. Johnson, submitted a brief.

Chris Byron and Richard P. Schaefer, Marion, for Everett R. Olson, submitted a brief.

Joseph F. Hodapp, Boston, for Robert D. Reed, submitted a brief.

Martin S. Cosgrove, Quincy, for Frederick Tanous, submitted a brief.

Before HENNESSEY, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

HENNESSEY, Chief Justice.

These cases arise out of a multicar accident which occurred on April 28, 1971, on the eastbound portion of Route 25 in Wareham, Massachusetts. The cases were tried to a jury in the Superior Court. At the close of the plaintiffs' evidence with respect to liability, the trial judge granted motions for directed verdicts as to all defendants in all cases. The plaintiff Mary V. Alholm, a passenger in one of the vehicles involved in the accident, brought actions for personal injuries against the town of Wareham, against the drivers of the other vehicles involved in the accident, and against H. P. Hood, Inc., as the employer of one of the drivers. ² She appealed from the judge's rulings on the motions for directed verdicts as to all defendants.

The plaintiffs Sylvia and Jackson, who are also defendants in the Alholm action, and Albert Guidaboni, the owner of a vehicle involved in the accident, bring these appeals only with respect to the question of the liability of the defendant town. The plaintiffs alleged that the town had maintained a public nuisance in the form of a town dump on property adjoining the public highway, the smoke from which severely impaired the visibility of travelers on the highway. They further alleged that the town had been negligent in its maintenance and operation of the dump and that its negligence had resulted in the impaired visibility on the highway which caused the accident. With respect to the drivers of the other vehicles involved, the plaintiff Alholm alleged that each driver had been negligent in the operation of his vehicle in light of the prevailing conditions of visibility. The trial judge granted the town's motion for directed verdicts on the specific ground that the doctrine of municipal immunity barred recovery. The motions of the defendant operators were granted on the ground that the evidence was insufficient to support a jury finding that the plaintiffs' injuries were caused in whole or in part by the negligence of any of the individual operators. We conclude that there was no error in the allowance of the motions for directed verdicts, except as to the actions of the plaintiff Alholm against the defendants Johnson and Perrone.

1. We must view the evidence in the light most favorable to the plaintiffs. Chase v. Roy, 363 Mass. 402, 294 N.E.2d 336 (1973); Calderone v. Wright, 360 Mass. 174, 274 N.E.2d 588 (1971). DeAngelis v. Boston Elevated Ry., 304 Mass. 461, 23 N.E.2d 859 (1939). We first summarize the evidence with respect to the plaintiffs' claims that the town dump was a public nuisance and that the nuisance conditions were caused by the negligence of town officers, agents, or employees.

The collision occurred on April 28, 1971, about 7:30 A.M. on the eastbound portion of Route 25 in Wareham, which in that vicinity consists of a breakdown lane, two driving lanes, and a passing lane bounded by an unenclosed median strip which is almost flush with the roadway. At a distance of about 450 feet south of the accident site is located a tract of land owned by the town of Wareham upon which it operated a dump for the use of town residents.

Surface and subterranean burning had occurred at the dump periodically for ten years prior to the accident. The dump had been smoldering since March 26, 1971, on which date Robert Donovan, Director of the Southeastern Massachusetts Air Pollution Control District, an agency of the Massachusetts Department of Public Health, observed open burning at the dump, as a result of which he sent the town a notice of the violation. About a week prior to the accident, smoke was seen blowing across the highway from the dump. The dump was smoldering on April 27 and 28, and open burning of refuse in the dump was observed on the morning of the accident at 10:35 A.M. The fire was extinguished during the week following the accident by a process which involved excavation and the pouring of 1.25 million gallons of water on the area.

The collision occurred in a bank of fog and smoke in which visibility was reduced virtually to zero. A State police officer who arrived at the scene about 7:45 A.M. described visibility conditions as 'like a smog, like a gray wall' and indicated that in addition to fog there was a 'heavy odor of smoke irritating to the eyes.' Several operators testified that they could smell smoke after the accident and that the smoke caused tearing of eyes and coughing.

However, there was also testimony that the area in and around Wareham was covered by an extremely heavy fog about 7 A.M. on the morning of the accident. There was no breeze. Visibility one-half mile from the scene of the accident in two directions was as poor as it was at the scene of the accident shortly before and after the accident. Virtually every witness who testified as to the visibility conditions at the scene of the accident emphasized the presence of a heavy stationary fogbank. While several witnesses testified to smelling smoke at the scene, only one driver thought that he could visually distinguish smoke present in the fogbank. In addition, there was repeated testimony that visibility had improved markedly by approximately 9 A.M. after the fog lifted. There was also testimony that the terrain surrounding the accident scene was a boggy, marshy area in which fog was a relatively frequent occurrence.

We conclude that, while there was evidence from which the jury could find that the town was maintaining a public nuisance and that the town was negligent in its maintenance of the dump, there was no evidence on which a jury could rationally base a conclusion that the smoke from the dump was causally related to the accident. Therefore, we need not here consider the issues of whether the governmental immunity doctrine precludes recovery against a municipality for personal injuries caused by a public nuisance maintained by the municipality or whether the dump was a commercial enterprise for negligence in the operation of which the town may be liable. The trial judge was correct in directing a verdict for the defendant town. The judge did not base his determination on the ground on which we proceed, but the granting of such a motion will be upheld if there is any valid ground on which the motion should have been granted. ³ Third Nat'l Bank & Trust Co. v. Reiter Oldsmobile, Inc., 360 Mass. 871, 277 N.E.2d 824 (1972). Greeley v. Zoning Bd. of Appeals of Framingham, 350 Mass. 549, 215 N.E.2d 791 (1966); McKinstry v. New York, N.H. & H.R.R., 338 Mass. 785, 153 N.E.2d 764 (1958).

The plaintiffs had the burden of proving that the alleged nuisance or negligence was the proximate cause of their injuries. It was incumbent on the plaintiffs to demonstrate a greater likelihood that their injuries were caused by a nuisance maintained by the defendant town or by its negligence than by some other cause for which it was not liable. Nass v. Duxbury, 327 Mass. 396, 400, 99 N.E.2d 54 (1951). 'Matters that are left so doubtful that there is no preponderance either way are not proved in the legal sense.' Connell v. Maynard, 322 Mass. 245, 246, 76 N.E.2d 642, 643 (1948). See Chase v. Roy, 363 Mass. 402, 294 N.E.2d 336 (1973); LeBlond v. Finerty, 351 Mass. 713, 223 N.E.2d 799 (1967); Falvey v. Hamelburg, 347 Mass. 430, 198 N.E.2d 400 (1964); Jones v. Hayden, 310 Mass. 90, 37 N.E.2d 243 (1941); Ellis v. Ellison, 275 Mass. 272, 175 N.E. 502 (1931).

The nature of the burden thus placed on the plaintiffs was most comprehensively set forth in Bigwood v. Boston & N. St. Ry., 209 Mass. 345, 348, 95 N.E. 751, 752 (1911): 'By bringing their actions, the plaintiffs assumed the obligation to show that the negligence of the defendant caused their injury. This was an affirmative burden and could not be left to surmise, conjecture or imagination. There must be something amounting to proof, either by direct evidence or rational inference of probabilities from established facts. While the plaintiff is not bound to exclude every other possibility of cause for his injury except that of the negligence of the defendant, he is required to show by evidence a greater likelihood that it came from an act of negligence for which the defendant is responsible than from a cause for which the defendant is not liable. If on all the evidence it is just as reasonable to suppose that the cause is one for which no liability would attach to the defendant as one for which the defendant is liable, then a plaintiff fails to make out his case.' The same burden is applicable to causes of action predicated on nuisance.

The evidence in these cases regarding the presence of an extremely heavy fog was overwhelming. There was no evidence regarding the amount...