Morais v. Lowell

• Court: Appeals Court of Massachusetts
• Citation: 738 N.E.2d 1158
• Docket Number: P-938
• Parties: (Mass.App.Ct. 2000) DANIEL MORAIS & others <A HREF="#fr1-1" name="fn1-1">1 vs. CITY OF LOWELL 98-
• Decision Date: 19 January 2000

738 N.E.2d 1158 (Mass.App.Ct. 2000) DANIEL MORAIS & others¹
vs.
CITY OF LOWELL 98-P-938 In the Court of Appeals of Massachusetts January 19, 2000 December 1, 2000.

Practice, Civil, Motion to dismiss.

Massachusetts Tort Claims Act. Negligence, Municipality. Municipal Corporations, Building inspection. Notice.

Civil action commenced in the Superior Court Department on April 3, 1997.

A motion to dismiss was heard by Charles T. Spurlock, J.

Brian J. Sullivan for the plaintiffs.

Marie Sheehy for the defendant.

Jacobs, Gillerman, & Gelinas, JJ

JACOBS, J.

The plaintiffs, owners of a six-unit apartment building in Lowell (city), filed a complaint in the Superior Court seeking damages from the city under the Massachusetts Tort Claims Act, G. L. c. 258. We agree with the plaintiffs' contention on appeal that the city's motion to dismiss their complaint, for failure to state a claim upon which relief can be granted, filed pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), was wrongly allowed.

In their complaint, the plaintiffs allege that on the morning of April 6, 1994, a building inspector,² accompanied by officers of the Lowell police department, "without legal justification[,] wrongfully and or negligently" entered their building and ordered all the tenants to vacate immediately. Five units were vacated that day, and the sixth unit was vacated on the following day. Gas and electric meters were removed, and the building was boarded up. The plaintiffs further allege that they were given no notice of any violation of law or of any complaint against any occupants of the building prior to a telephone call made to the home of two of the plaintiffs as the building was being vacated. On April 22, 1994, the plaintiffs received a certified letter, dated April 19, 1994, from the city's department of inspectional services, signed by the same building inspector who entered the building on April 6, informing them of the results of a "recent inspection." It stated that the building was "open and abandoned and dangerous and unsafe," that it appeared the owners permitted the building to be used for illegal purposes, in violation of G. L. c. 139, § 20, and that the building "has also been secured by the Building Department."³

In reviewing the disposition of a motion to dismiss under rule 12(b)(6), we take the allegations in the complaint and inferences drawn therefrom in a plaintiff's favor as true, and consider the complaint sufficient "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 47 (1998), quoting from Conley v. Gibson, 355 U.S. 41, 45-46 (1957). We, therefore, examine whether the plaintiffs' allegation that the entry into their building was wrongful and negligent, constitutes a claim under G. L. c. 258.

General Laws c. 258, § 2, as amended by St. 1984, c. 279, § 1, 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 . . . ." In interpreting this statute, the Supreme Judicial Court has stated that "actions brought under the [Massachusetts Tort Claims] Act are governed by the same principles that apply to actions involving private parties. In order to recover against the [city] 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." Dinsky v. Framingham, 386 Mass. 801, 804 (1982) (citations omitted). In that case the court held that, "in the absence of a special duty owed to the plaintiffs, different from that owed to the public at large, no cause of action for negligent inspection can be maintained." Id. at 810.

The issue, therefore, is whether the plaintiffs' complaint may be read as alleging violation of a special duty owed to them....