Morrissey v. New England Deaconess Ass'n—abundant Life Communities Inc.

• Decision Date: 22 December 2010
• Docket Number: SJC–10672.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John N. MORRISSEY, trustee,1v.NEW ENGLAND DEACONESS ASSOCIATION—ABUNDANT LIFE COMMUNITIES, INC., & others 2; Marois Bros., Inc., third-party defendant.

458 Mass. 580

940 N.E.2d 391

John N. MORRISSEY, trustee,1

v.NEW ENGLAND DEACONESS ASSOCIATION—ABUNDANT LIFE COMMUNITIES, INC., & others 2; Marois Bros., Inc., third-party defendant.

SJC–10672.

Supreme Judicial Court of Massachusetts, Middlesex.

Submitted Nov. 2, 2010.Decided Dec. 22, 2010.

Howard R. Meshnick, Assistant Attorney General, for Executive Office of Transportation and Public Works.

John N. Morrissey, pro se.David M. Moore, City Solicitor, & Andrew J. Abdella, Assistant City Solicitor, for city of Worcester, amicus curiae, submitted a brief.Thomas J. Urbelis & Juliana deHaan Rice, for City Solicitors and Town Counsel Association, amicus curiae, submitted a brief.Present: IRELAND, SPINA, CORDY, BOTSFORD, & GANTS, JJ.SPINA, J.

In the present case, here on direct appellate review, we consider whether the tort of private nuisance falls within the purview of the Massachusetts Tort Claims Act (Act), G.L. c. 258, and, if so, whether such a claim brought by John N. Morrissey, on behalf of the JNM 2006 Trust, against, among others, the Executive Office of Transportation and Public Works (Commonwealth) ³ is barred by the exceptions to the waiver of sovereign immunity set forth in G.L. c. 258, § 10 ( b ) and ( e ). For the reasons that follow, we conclude that an action for private nuisance against the Commonwealth is subject to the provisions of the Act, and that Morrissey's claim, arising from certain construction activities on a State highway, is barred by statutory exceptions to the waiver of sovereign immunity.

1. Background. For the purposes of our review, we accept as true the allegations in Morrissey's amended complaint. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Morrissey, as the attorney for and sole trustee of the JNM 2006 Trust, holds legal title to a six-acre property at 23 Cambridge Turnpike in Lincoln (Trust property), where Morrissey's father lives. The Trust property's only access to a public way is a driveway onto the Cambridge Turnpike, also known as Route 2, a State highway. New England Deaconess Association—Abundant Life Communities, Inc. (Deaconess), owns the land that abuts the Trust property. The primary means of vehicular access to the Deaconess property is a paved road along the side of its property that exits onto Route 2. Prior to the commencement of road work, Route 2 in the vicinity of the Trust and Deaconess properties was a four-lane undivided highway. It had a narrow breakdown or acceleration lane beginning at the exit of the Deaconess property and continuing for approximately 700 feet in front of the Trust property and the next two neighboring properties before converging with the right-hand travel lane of Route 2. The portion of the Trust property adjacent to Route 2 is relatively level and is approximately eight feet above the road grade.

At some indeterminate time, Deaconess commenced construction of a senior living community on its property (The Groves). In late summer and early fall of 2007, Deaconess met with the Morrisseys about its plans to widen Route 2 to accommodate an acceleration and deceleration lane for vehicular traffic entering and exiting the Deaconess property. It presented several options for the provision of lateral support to the Trust property during the road construction. At a subsequent meeting, the Morrisseys provided Deaconess with a list of conditions as to the performance of the work and requested compensation of $50,000 to mitigate the costs of the anticipated nuisance. Deaconess ultimately decided that it would perform the road work by cutting back the existing grass escarpment and finishing the sloped surface with “riprap.” ⁴ Because this method of construction did not require an easement onto the Trust property, Deaconess informed Morrissey that he had no right to input over any aspect of the project, and that he would not be compensated for anticipated harm to the Trust property, other than possibly the transplanting of certain trees that might be affected by the road work.

On October 30, 2007, the Massachusetts Highway Department (highway department) issued a permit to Deaconess to enter on and make certain improvements to Route 2 in Lincoln.⁵ The permit allowed Deaconess, among other things, to widen the acceleration and deceleration lane, perform associated drainage work, install a guardrail, and construct a riprap escarpment. It also imposed limitations on construction activities and required that Deaconess indemnify the Commonwealth and the highway department against all suits, claims, or liability arising from the work covered by the permit. Delphi Construction, Inc. (Delphi), hired by Deaconess to manage construction of The Groves, commenced work on Route 2 in late November, 2007.

The Morrisseys soon complained to Delphi that a portion of the completed riprap escarpment encroached onto the Trust property, that approximately six feet of the Trust property had collapsed into the excavated but unfinished portion of the escarpment, and that a construction fence had been installed on the Trust property without permission. Their demands that the work on Route 2 stop and that they be provided with monetary compensation were ignored. On April 7, 2008, Morrissey filed an amended verified seven-count complaint for monetary damages and injunctive relief against Deaconess, the Commonwealth, and Delphi (collectively, the defendants).⁶ As pertinent to the present appeal, four counts were brought against the Commonwealth: interference with rights to lateral support (Count I); trespass to land (Count II); private nuisance (Count III) ⁷; and inverse condemnation in violation of art. 10 of the Massachusetts Declaration of Rights (Count V).

On July 29, 2009, the Commonwealth filed a motion to dismiss “all claims against it” for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1), 365 Mass. 754 (1974). The Commonwealth asserted that the sole basis for Morrissey's claims was the Commonwealth's discretionary decision to issue a permit for construction on Route 2. As such, his claims were barred by the exceptions to the waiver of sovereign immunity set forth in G.L. c. 258, § 10 ( b ) and ( e ), pertaining to the performance of a discretionary function and the issuance of a permit. In his opposition to the Commonwealth's motion, Morrissey stated that subject matter jurisdiction was conferred on the Superior Court pursuant to G.L. c. 79 (eminent domain) and G.L. c. 81, § 7 (compensation for injury to real estate caused by alteration of State highway), as well as under the common law of private nuisance and constitutional principles relating to the “taking” of private property.

On October 14, 2009, a judge in the Superior Court allowed the Commonwealth's motion to dismiss as to Counts I and II, and denied the motion as to Count III. ⁸ The judge concluded that Morrissey's private nuisance claim was not barred by the Act because G.L. c. 258 provided an unnecessary, and therefore inapplicable, remedy for a private nuisance action against a governmental entity given that decades before the enactment of the Act, “it was well established that a municipality was not immune from liability if it created or maintained a private nuisance on its land which caused injury to the real property of another.” Murphy v. Chatham, 41 Mass.App.Ct. 821, 824–825, 676 N.E.2d 473 (1996), quoting Asiala v. Fitchburg, 24 Mass.App.Ct. 13, 17, 505 N.E.2d 575 (1987).

In contrast, the judge further concluded that Morrissey's claims that the Commonwealth interfered with his rights to lateral support and trespassed onto the Trust property could not survive the motion to dismiss because the Commonwealth has not waived immunity with respect to claims based on a discretionary decision, the issuance of a permit, or an alleged failure to prevent or diminish harmful consequences that it did not originally cause. See G.L. c. 258, § 10 ( b ), ( e ), and ( j ).⁹ In addition, the judge stated that, contrary to Morrissey's contention, the court did not have jurisdiction over these claims pursuant to G.L. c. 81, § 7, because the Commonwealth “did not involve itself in the alteration of Route 2 by either controlling the work allegedly performed by Deaconess or Delphi Construction, Inc. or taking any portion of the Trust Property.” Instead, the judge continued, the Commonwealth's only role in the alteration of Route 2 was its decision to issue a permit to Deaconess and, because Morrissey's claims against the Commonwealth for interference with his rights to lateral support and for trespass were based on this discretionary decision, these claims were barred by the exceptions to the waiver of sovereign immunity set forth in § 10. The Commonwealth appealed,¹⁰ and we granted its application for direct appellate review.¹¹

2. Inclusion of private nuisance in the Act. The thrust of the Commonwealth's argument is that, when consideration is given to the genesis of the Act, as well as to its purposes and provisions, it becomes evident that the tort of private nuisance is encompassed within its purview. As such, the Commonwealth continues, in the circumstances of this case, Morrissey's claim is barred by the specific exclusions to the waiver of sovereign immunity set forth in G.L. c. 258, § 10 ( b ) and ( e ). We agree.

Prior to the enactment of the Act in 1978, the Commonwealth and its municipalities were not immune from liability with respect to claims for private nuisance. See Morash & Sons v. Commonwealth, 363 Mass. 612, 616–619, 296 N.E.2d 461 (1973) ( Morash ) (holding that where municipalities already were liable for private nuisances, there was no logical reason why Commonwealth should not also be liable where “it creates or maintains a private nuisance which causes injury to the real property of another”). However,...