Magliacane v. City of Gardner, SJC-12736

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: GANTS, C.J.
• Citation: 483 Mass. 842,138 N.E.3d 347
• Decision Date: 22 January 2020
• Docket Number: SJC-12736
• Parties: Janice MAGLIACANE v. CITY OF GARDNER & others.

483 Mass. 842
138 N.E.3d 347

Janice MAGLIACANE¹
v.
CITY OF GARDNER & others.²

SJC-12736

Supreme Judicial Court of Massachusetts, Worcester..

Argued October 2, 2019
Decided January 22, 2020

The following submitted briefs for amici curiae:

J. Raymond Miyares, Wellesley, Bryan F. Bertram, & Ivria Glass Fried, for department of public works of Wellesley.

Michele E. Randazzo Boston, for Massachusetts Water Works Association & another.

Cynthia L. Amara, Quincy, for Massachusetts Municipal Lawyers Association.

Michelle H. Blauner, Boston, for the plaintiff.

John J. Davis, Boston, for the defendants.

Present (Sitting at Barnstable): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GANTS, C.J.

483 Mass. 843

Plaintiff Janice Magliacane is a homeowner in the city of Gardner (city) whose hot water heating system failed prematurely three times due to corrosion of its copper heating coils. She replaced the coils on the first two occasions but, after the third malfunction, switched out her tankless hot water system for a water heater to avoid additional replacement costs. She was not alone; as alleged, the hot water heating systems of hundreds of other homeowners in the city also failed because of corroded copper heating coils.

Magliacane commenced this putative class action suit in the Superior Court alleging that the city and its private water supply contractors, AECOM Technical Services, Inc. (AECOM), and Suez Water Environmental Services, Inc. (Suez) (collectively, defendants), were negligent and grossly negligent and created a nuisance in knowingly supplying corrosive water to the city's residents. The city moved to dismiss the complaint pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974), and for entry of separate and final judgment pursuant to Mass. R. Civ. P. 54(b), 365 Mass. 820 (1974). After a hearing, the judge allowed the city's motion to dismiss, concluding that Magliacane failed to make timely presentment as required by the Tort Claims Act (act), G. L. c. 258, § 4.³ Magliacane filed a notice of appeal, and we transferred the appeal to this court on our own motion.

Magliacane contends that her class action claims fall outside the scope of the act because a city historically has been exempt

483 Mass. 844

138 N.E.3d 352

from sovereign immunity when it acts in a "proprietary" or "commercial" capacity by selling water to its residents. She also argues that, even if her claims are covered by the act, she made timely presentment because the city fraudulently concealed her cause of action, thereby tolling the act's presentment requirement until she had actual knowledge of her claims.

We conclude that, apart from the exceptions set forth in the act, the act covers all claims brought against a city, even those arising from the city's sale of water to its residents. We also conclude that the judge erred in dismissing Magliacane's complaint for lack of timely presentment, where her complaint made specific allegations that, if true, would support factual findings (1) that the city fraudulently concealed her cause of action and (2) that she did not have actual knowledge of the city's responsibility for the corrosion of her heating coils until less than two years before the date of presentment. Because we look to the same record as the motion judge and because allowance of a motion to dismiss is a question of law, we also reach the arguments that the judge did not address and conclude (1) that Magliacane adequately gave notice of her nuisance claim in her presentment; (2) that she made proper presentment on behalf of the putative class; and (3) that the allegations in her complaint suffice to show that the city is not entitled to dismissal of the complaint under the statutory exceptions to liability under the act that it invoked.⁴ We therefore vacate the judge's allowance of the city's motion to dismiss and remand this case for further proceedings consistent with this opinion.⁵

Background. We recite the facts, which are alleged in great detail in the complaint, as if they are true, because we must accept them as true in reviewing the allowance of a motion to dismiss. See Revere v. Massachusetts Gaming Comm'n, 476 Mass. 591, 595, 71 N.E.3d 457 (2017).

The city owns two water treatment plants at Crystal Lake and Snake Pond, and it sells and distributes water to the city's residents, property owners, and businesses. In 1998, the city entered

483 Mass. 845

into a contract with defendant AECOM⁶ that privatized the city's water maintenance and distribution operation. The contract guaranteed that AECOM would operate and maintain the city's water system in accordance with "Good Industry Practices"; "use all reasonable means and methods to insure the safety, integrity and quality of the [c]ity's water"; and perform its work in conformity with "the highest professional standard of care and practice customarily expected" of those engaged in comparable work. Defendant Suez acquired the contract and assumed all attendant obligations in 2008. Suez has operated the city's water facilities and distribution system since then.

The defendants knew for years that the water they sold and distributed to the city's residents was corrosive. In a 1994

138 N.E.3d 353

report, city consultants stated that "the corrosive nature of the source water was causing leaching of lead and copper from building plumbing." The report concluded that "increasing the pH of the water entering the distribution system would reduce lead and copper solubility," and recommended that the city's water treatment facility at Crystal Lake "add a non-zinc based orthophosphate to ... inhibit corrosion of the distribution system piping and plumbing." A 1998 letter from the same consultants recommended that the city's other water treatment facility at Snake Pond similarly implement "corrosion control using caustic soda and poly/orthophosphate blend." When the city constructed the plants at Crystal Lake and Snake Pond in the late 1990s, it and AECOM appeared to heed this advice, seeking and receiving approval from the Department of Environmental Protection (DEP) to incorporate orthophosphate into the design of both facilities as a corrosion inhibitor. But in 2002, AECOM sent a letter to the DEP stating that it did not believe that the corrosion control plan had been optimized and that it intended to "further optimize lead and copper control with orthophosphate treatment." Despite this apparent decision and DEP approval, the city and AECOM did not implement corrosion control plans at that time.

By 2009 or 2010, the city had received numerous complaints about copper water heater coil failures and had initiated an investigation into the issue. In 2011, the city engineer sought the guidance of an expert with the United States Environmental Protection

483 Mass. 846

Agency (EPA), who concluded that there were no issues with the coils themselves but that the water's alkalinity was low and ought to be increased. Although the city shared this information with Suez, neither entity acted on the recommendation.

Meanwhile, the city's residents' heating coils continued to fail: by 2012, the city had received reports of more than 400 coil failures from 250 residents. In response, the city and Suez retained Microvision Laboratories (Microvision) to examine the heating coils and water samples. Microvision excluded coil quality as a cause of the failures and determined that the city's switch from chlorine to chloramine (two chemicals commonly used to disinfect public water systems) might have contributed to the corrosion problem. In its 2012 report, Microvision suggested that the city take "[a]dditional steps" to "minimize the risk of aggressive corrosion," specifically "the addition of a phosphate corrosion inhibitor." Based on the report, the city engineer stated in a memorandum that "it is incumbent upon [the city] as the supplier to improve water chemistry to make the water more protective of the copper pipe within the boiler heating environment." The memorandum also noted that the "[o]riginal studies in advance of the current water treatment facility construction called for the addition [of] soda ash for alkalinity control and non zinc orthophosphate for corrosion control. At some point the orthophosphate addition was dropped and is not used today." Again, the defendants took no action to improve the city's water chemistry.

In 2015, as the city continued to receive complaints, it and Suez retained yet another consultant, Corrosion Testing Laboratories (CTL), to test the leaking copper coils. CTL's 2015 report concluded that the leaks in the coils were caused by pinholes and that the pinholes were likely "related to soft water low alkalinity, and/or low dissolved inorganic carbon." CTL further opined that Suez's use of chloramine treatment was "associated with changing the alkalinity and dissolved inorganic carbonate levels" in the city's water supply.

138 N.E.3d 354

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