Comeau v. Town of Webster

• Decision Date: 24 July 2012
• Docket Number: Civil Action No. 11–40208–TSH.
• Citation: 881 F.Supp.2d 177
• Parties: Christopher COMEAU d/b/a/ C.J. Comeau Trucking High Roller Transport Ltd. and Roger Comeau (sole owner HighRoller), Plaintiffs, v. TOWN OF WEBSTER, MASSACHUSETTS, Board of Selectmen, Board of Health, Timothy Bent, Police Chief, Police Department, Thomas Purcell, Health Agent and Individually, Defendants.
• Court: U.S. District Court — District of Massachusetts

881 F.Supp.2d 177

Christopher COMEAU d/b/a/ C.J. Comeau Trucking High Roller Transport Ltd. and Roger Comeau (sole owner HighRoller), Plaintiffs,

v.TOWN OF WEBSTER, MASSACHUSETTS, Board of Selectmen, Board of Health, Timothy Bent, Police Chief, Police Department, Thomas Purcell, Health Agent and Individually, Defendants.

Civil Action No. 11–40208–TSH.

United States District Court, D. Massachusetts.

July 24, 2012.

Charles F. Proctor, Proctor & Proctor Law Firm, James B. Triplett, Triplett & Fleming, Oxford, MA, for Plaintiffs.

Gerard T. Donnelly, Courtney E. Mayo, Hassett & Donnelly, P.C., Worcester, MA, for Defendants.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS

HILLMAN, District Judge.

Nature of the Proceeding

Plaintiffs Christopher Comeau, d/b/a/ Comeau Trucking (“Comeau”), High Roller Transport LTD (“High Roller”), and Roger Comeau (sole owner of High Roller) (“R. Comeau”), collectively “Plaintiffs,” have brought suit against the Town of Webster, Massachusetts (“Webster”), its Board of Selectmen (“Selectmen”), Board of Health (“Board of Health”), Police Chief Timothy Bent (“Chief Bent”), Police Department (“Police Department”), and Thomas Purcell, Individually and as Health Agent (“Purcell”). Defendants have moved to dismiss all eighteen (18) counts of the First Amended Complaint citing a variety of alleged deficiencies. (Docket No. 9). For the reasons set forth below, the motion will be granted in part and denied in part.

Background¹

This case stems from a truck crash on Route 395, Webster, Massachusetts. On July 27, 2008 a tractor trailer owned by Comeau and driven by an employee of High Roller, was carrying over 40,000 lbs of live lobsters and fresh fish. The truck came over a ridge on Rt. 395 when it came upon a sudden traffic stop that blocked the highway. The driver could not stop the truck in time, it struck three motor vehicles, and ended up on the highway median. The truck and trailer were damaged. Even though Webster had previous experience conducting the marathon and was knowledgeable as to the additional public safety hazards that the marathon created, there were still road closures that caused a backup on to Rt. 395. No warning signs were posted.

After the crash, the driver checked the product and determined the packing was intact, the icing looked in its original condition, and that the environment was cool. To protect the load, a replacement refrigerated truck was brought to the scene and the transfer of the seafood product began. The driver observed each of the first ten lobster crates as they were transferred and that the lobsters were alive and active.

Board of Health Agent Purcell arrived on the scene approximately four hours after the accident, when most of the load had been transferred to the replacement truck. Purcell did not have experience, training, or other instruction on the proper handling, transportation, storage, or contamination of seafood product, particularly lobsters. He inspected the seafood to determine whether it was fit for consumption or sale to the public. Purcell sought no information from the driver and Purcell refused efforts to have a knowledgeable fish company representative inspect the seafood cargo. Instead, Purcell ordered the load condemned as a risk to public health safety.

Comeau, High Roller, and R. Comeau have significant expertise in handling, storage, transportation and proper maintenance of seafood products, to ensure that the seafood products are safe for the consuming public when they reach the seafood distributors. This includes the preservation of the product should the refrigerated transportation container become compromised. They have brought suit against Webster and various municipal officials and boards to recover compensatory and punitive damages regarding the condemnation of the seafood.

The complaint (Document No. 11) contains 18 counts, some of which are misnumbered.² They are as follows: Count I, negligence against Webster pursuant to Mass. Gen. Laws ch. 258 §§ 1– 13; Count II, “common law negligence” against Webster; Count III, violation of Mass. Gen. Laws ch. 85, § 2 against Webster; Count IV (first), negligence against the Board of Selectmen pursuant to Mass. Gen. Laws ch. 258, §§ 1– 13; Count IV (second), negligence against the Police Department pursuant to Mass. Gen. Laws ch. 258, §§ 1– 13; Count V, negligence against the Selectmen and Chief Bent pursuant to Mass. Gen. Laws ch. 258, §§ 1– 13; Count VI (first), negligence against the Board of Health pursuant to Mass. Gen. Laws ch. 258, §§ 1– 13; Count VI (second), negligence against Webster pursuant to Mass. Gen. Laws ch. 258, §§ 1– 13; Count VII, civil rights violation against the Board of Health pursuant to 42 U.S.C. § 1983; Count VIII, negligent supervision against the Board of Health; Count IX, negligent training by the Board of Health; Count X, civil rights violation against Purcell under 42 U.S.C. § 1983; Count XI, civil rights violation under Mass. Gen. Laws ch. 12, §§ 11H and 11I against Purcell; Count XII, civil rights violation under Mass. Gen. Laws ch. 12, §§ 11H and 11I against the Board of Health; Counts XIII and XIV, interference with a contractual relationship against Purcell; and Counts XV (first) and XV (second), intentional interference in an advantageous relationship against Purcell.

Standard of Review

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court “must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir.2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999)). To survive a motion to dismiss, the complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1950. “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965–66. Dismissal is appropriate if the complaint fails to set forth “factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.2008) (quoting Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir.2005)). With these principles in mind, I turn to Plaintiffs' claims.

Discussion

1. Negligence Claims—Counts I, II, IV (first), IV (second), V, VI (first), VI (second), VII, and IX

All Plaintiffs' negligence claims are governed by the Massachusetts Tort Claims Act, Mass. Gen. Laws. ch. 258 et seq. (the “Act”). The Act is the exclusive remedy for injuries allegedly caused by the negligent acts or omissions of municipal employees. Mass. Gen. Laws. ch. 258, § 2. A plaintiff cannot title a negligence claim under another theory simply to circumvent the requirements of the Act. Schenker v. Binns, 18 Mass.App.Ct. 404, 406, 466 N.E.2d 131 (1984) (citing Thomas v. Mass. Bay Transportation Auth., 389 Mass. 408, 410, 450 N.E.2d 600 (1993)).

In their motion, Defendants seek dismissal based on several provisions of the Act, alleging: that Plaintiffs have not complied with the presentment requirements; that the individual defendants are immune from suit for alleged negligent acts committedwithin the scope of their employment; that the individual defendants were performing discretionary functions and are thus exempt from suit; that claims based upon inspectional services are specifically exempt from suit; and, that the Act provides Defendants with immunity from suit under the public duty rule.

Under Massachusetts law, one who wishes to assert a negligence claim against a municipality must “present[ ] his claim in writing to the [defendant] within two years after the date upon which the cause of action arose.” Mass. Gen. Laws c. 258, § 4. Suit must be brought within “three years after the date upon which such cause of action accrued,” id., and the plaintiff must make the required presentment prior to the commencement of suit. Id. This statute is written with conspicuous clarity, and the Massachusetts Supreme Judicial Court has left little doubt that its plain meaning controls. See Holahan v. Medford, 394 Mass. 186, 189, 474 N.E.2d 1117 (1985). While the presentment requirement is not jurisdictional, it is a statutory condition precedent to bringing suit, Vasys v. Metro. Dist. Comm'n, 387 Mass. 51, 55, 438 N.E.2d 836 (1982), and strict compliance with the statute is the rule. Gilmore v. Com., 417 Mass. 718, 721–722, 632 N.E.2d 838 (1994) (citing Richardson v. Dailey, 424 Mass. 258, 261–262, 675 N.E.2d 787 (1997)).

There is much law on how, when, and to whom, proper presentment is to be made. In the case of a city or town, presentment of a claim will be deemed sufficient if presented to either the mayor, city manager, town manager, corporation counsel, city solicitor, town counsel, city clerk, town clerk, chairman of the board of selectmen, or executive secretary of the board of selectmen. Mass. Gen. Laws. ch. 258, § 4. In Vasys, the Supreme Judicial Court identified two principal purposes of the presentment requirement, to wit: (1) to allow those with valid claims in tort to recover against governmental entities, and (2) to help municipalities screen so that only valid claims be paid. Vasys, 387 Mass. at 57, 438 N.E.2d 836. Considering these two purposes, courts should aim to strike “[a]n appropriate...