Dinsky v. Town of Framingham

• Decision Date: 20 July 1982
• Citation: 438 N.E.2d 51,386 Mass. 801
• Parties: Philip A. DINSKY et al. 1 v. TOWN OF FRAMINGHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 51

438 N.E.2d 51

386 Mass. 801

Philip A. DINSKY et al. ¹ v. TOWN OF FRAMINGHAM.

Supreme Judicial Court of Massachusetts Middlesex.

Argued April 9, 1982.

Decided July 20, 1982.

Paul D. Gallese, Boston, for plaintiffs.

Aaron K. Bikofsky, Town Counsel, Framingham, for defendant.

Before WILKINS, LIACOS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

The plaintiffs brought this action against the town of Framingham (town) alleging negligence in the issuance of building and occupancy permits. After a trial in Superior Court, the judge granted the defendant's motion for a directed finding on the ground that the town owed the plaintiffs no duty of care beyond that owed to the public at large. We transferred the plaintiffs' appeal to this court on our own motion. We affirm the judgment for the town.

The judge made the following findings of fact in his memorandum of decision. The plaintiffs are the owners of a single family residence (the premises) on Badger Road in Framingham. By a letter dated February 13, 1974, the town's department of health authorized the town's building commissioner to issue a building permit for the construction of a one-family residence on the premises on the "condition that the lots shall be graded as to prevent low spots that will not drain and create a public nuisance." In addition, the letter provided that "prior to issuance of an occupancy permit, inspection by your Department, or the Town Engineer, or the Board of Health, should be performed to insure compliance with the proposed grading." The building commissioner issued a building permit for the premises on February 15, 1974, and an occupancy permit was issued on December 18, 1975. The permits issued despite the fact that the requirements expressed in the department of health letter pertaining to the proposed grading and proper drainage were not met. On December 22, 1975, the builder conveyed the premises to the plaintiffs.

Beginning in March, 1978, the plaintiffs began experiencing serious flooding on the premises. The basement, garage, and driveway became flooded and large portions of their lawn were covered by water over one inch deep. Shortly afterward, large cracks developed in the foundation walls. The flooding condition has continued during periods of heavy precipitation.

We first consider the threshold question whether G.L. c. 258, as appearing in St.1978, c. 512, § 15, the Massachusetts Tort Claims Act (Act), applies to this case. The Act applies to causes of action arising on or after August 16, 1977. St.1978, c. 512, § 16. The judge ruled that the Act applied to this action. The town argues that it was error for the judge so to rule because the cause of action arose, at the latest, when the plaintiffs purchased the property in 1975. We see no reason why the rules applied to the accrual of a cause of action asserted under G.L. c. 258 should be different from the general rules we apply to the accrual of actions under G.L. c. 260. We find nothing in the Act which shows a legislative intent that different accrual rules apply. It is a well-settled rule that causes of action in tort generally accrue under G.L. c. 260, § 2A, at the time that the plaintiff is injured. Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 741, 374 N.E.2d 582 (1978). We stated the reason behind this rule in Cannon : "A negligence action may not be maintained unless one has suffered injury or damage.... A cause of action based on negligence requires that both negligence and harm be shown, with a causal connection between these two elements." Id. at 742, 374 N.E.2d 582.

We have also held on numerous occasions that when a cause of action in either contract or tort is based on an inherently unknowable wrong, it accrues when the injured person knows or in the exercise of reasonable diligence should know of the facts giving rise to the cause of action. See, e.g., Franklin v. Albert, 381 Mass. 611, --- - ---, Mass.Adv.Sh. (1980) 2187, 2194-2195, 411 N.E.2d 458; Nantucket v. Beinecke, 379 Mass. 345, 398 N.E.2d 458 (1979); Friedman v. Jablonski, 371 Mass. 482, 485, 358 N.E.2d 994 (1976); Hendrickson v. Sears, 365 Mass. 83, 88-91, 310 N.E.2d 131 (1974). In the case before us, the judge found that the plaintiffs first realized in March, 1978, that their property was improperly graded when they began to experience flooding problems and that until that time the plaintiffs could not have reasonably known that the premises were defectively graded. The judge thus ruled that the cause of action arose in March, 1978. This ruling was correct. Prior to this time, the plaintiffs had suffered no injury due to the town's actions. March, 1978, was the date of their injury as well as the date on which they learned of their injury. The cause of action did not accrue in 1975, when the plaintiffs purchased the premises. At that time they had suffered no damages, were unaware of the grading problems, and could not have maintained an action in negligence. ² Therefore, the judge properly ruled that the Act applied to this action.

The judge ruled that, despite the fact that the Act applied to the plaintiffs' action, they were not entitled to recover against the town because the town did not violate a duty owed to them as individuals. In addressing this issue, we start with the basic principle that the abrogation of the doctrine of governmental immunity by the Act simply removed the defense of immunity in certain tort actions against the Commonwealth, municipalities and other governmental subdivisions. It did not create any new theory of liability for a municipality. General Laws c. 258, § 2, provides that: "Public employers shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances...." We have interpreted this language to mean that actions brought under the Act are governed by the same principles that apply to actions involving private parties. Beurklian v. Allen, 385 Mass. 1009, 432 N.E.2d 707 (1982). See Duran v. Tucson, 20 Ariz.App. 22, 24, 509 P.2d 1059 (1973); Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972). In order to recover against the town for negligence, the plaintiffs must show (1) the existence of an act or omission in violation of a (2) duty owed to the plaintiffs by the defendant, (3) injury, and (4) a causal relationship between the breach of duty and the harm suffered. See J. R. Nolan, Tort Law § 171 (1979). The requirement to justify liability that a defendant must owe the plaintiff a duty of care is long established law in Massachusetts. "In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled." Sweeny v. Old Colony & Newport R. R., 10 Allen 368, 372 (1865). See Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973); Newlin v. New England Tel. & Tel. Co., 316 Mass. 234, 236, 54 N.E.2d 929 (1944); J. R. Nolan, Tort Law § 172 (1979).

In the present case, the plaintiffs argue that the building commissioner owed a specific, affirmative duty to them to enforce the building code and to issue building and occupancy permits in a nonnegligent manner. The town argues in response that the duty of the building commissioner, absent specific language to the contrary in the building code, is to ensure compliance with the building code for the benefit of the public generally and that the duty does not run to individuals in their private capacity.

The issue of whether a municipality's failure to enforce a building code gives rise to a private cause of action is one of first impression for this court. We shall, therefore, look to the decisions of other jurisdictions which have ruled on this point. We begin with the idea that the purpose of a building code has been considered traditionally to be the protection of the general public. This rule is well stated in 7 E. McQuillin, Municipal Corporations § 24.507, at 479 (3d ed. 1981): "The enactment and enforcement of building codes and ordinances constitute a governmental function. The primary purpose of such codes and ordinances is to secure to the municipality as a whole the benefits of a well-ordered municipal government, or, as sometimes expressed, to protect the health and secure the safety of occupants of buildings, and not to protect the personal or property interests of individuals." The traditional rule, that a building code is enacted for the benefit of the public and therefore that its violation does not give rise to a private right of action, continues to be followed by the majority of the States that have considered the question. In Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972), suit was brought against the city for personal injuries and death of occupants of a motel in which a fire occurred. The plaintiffs' theory was that damage resulted from the city's negligence in issuing a building permit authorizing remodeling of the motel in a manner violative of the city's building code. The Supreme Court of Minnesota affirmed a trial judge's dismissal of the complaint because it did not state a cause of action against the city. The court considered the fact that statutory provisions removing the defense of governmental immunity had been enacted but found that the provisions merely removed the defense of immunity without creating any new liability for a municipality. The court stated that in order to recover, the plaintiffs were required to show a breach of duty owed them in their individual capacities and not merely a breach of some obligation owed to the public, stating: "Building codes, the issuance of building permits, and...