Nemet v. Boston Water and Sewer Com'n

• Decision Date: 26 September 2002
• Docket Number: No. 02-P-159.,02-P-159.
• Citation: 775 N.E.2d 750,56 Mass. App. Ct. 104
• Parties: Tracy NEMET & another<SMALL><SUP>1</SUP></SMALL> v. BOSTON WATER AND SEWER COMMISSION & another.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

775 N.E.2d 750

56 Mass. App. Ct. 104

Tracy NEMET & another¹ v. BOSTON WATER AND SEWER COMMISSION & another.²

No. 02-P-159.

Appeals Court of Massachusetts, Suffolk.

Argued May 29, 2002.

Decided September 26, 2002.

Further Appellant Review Denied October 30, 2002.

COPYRIGHT MATERIAL OMITTED

Bonnie M. Gottschalk, Boston, for Boston Water and Sewer Commission.

John J. Davis, Boston, for town of Dedham.

Robert D. Cohan, Boston, for the plaintiffs.

Present: LENK, DREBEN, & McHUGH, JJ.

LENK, J.

The plaintiffs, Tracy and Christine Nemet, moved into their Dedham home on May 16, 1997.³ From that time until the commencement of this action in 1999, the Nemets' residence was beset with serial flooding that caused significant damage to their real and personal property. The Nemets contend that the flooding was caused by the defendants' negligent failure to maintain a drain pipe that ran underneath the Nemets' backyard. That pipe was installed in the late 1950's as a joint project of the Dedham department of public works (DPW) and the Boston water and sewer commission (BWSC). While physically located on Dedham land, the pipe was to serve as a "temporary outlet" for Boston water.

After trial by jury, the defendants were each found liable in negligence and each plaintiff was awarded damages on an individual basis.⁴ The trial judge thereafter reduced Tracy Nemet's award against DPW to $100,000 by virtue of the applicable limitation on damages contained in the Massachusetts Tort Claims Act (Act), G.L. c. 258, § 2. The judge later denied the defendants' motions for judgment notwithstanding the verdict (JNOV), new trial, and remittitur. On appeal from the denial of these posttrial motions the defendants assert error in three respects: (1) the Nemets failed to prove the essential element of causation; (2) the Nemets failed to introduce competent evidence to prove the element of causation; and (3) the trial judge erred in her application of the statutory cap. We affirm.

1. Causation. The defendants contend that there are two ways in which the Nemets failed to prove causation: they did not introduce sufficient evidence that the water causing damage to their home in fact came from the defendants' pipe, and they did not introduce any evidence showing that it was the defendants' negligent conduct that caused the flooding. We consider each contention in turn, mindful that in reviewing the denial of a JNOV motion, we are required to "tak[e] into account all the evidence in its aspect most favorable to the plaintiff[s] to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff[s]." Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass.App.Ct. 252, 254, 444 N.E.2d 1306 (1983).

We first summarize the evidence favorable to the Nemets that was before the jury. On June 13, 1998, the date of the most serious of seven floods, the Nemets' basement filled with six feet of water in less than two hours. In an attempt to determine the source of the water, Tracy Nemet used a boat to paddle out to the backyard where he saw water bubbling from the ground. A week later, after the water receded, he observed two holes in the ground at the location where he had seen bubbling and deduced that the pipe running under his house caused the damage. In addition to Nemet's testimony in this regard, the jury were shown photographs and a videotape of the damaged pipe.

The jury also had before them a 1957 memo from Robert Shea, sewer division engineer for the Boston public works department,⁵ setting forth a proposal to install underground a 24-inch pipe on what is now the Nemets' property. According to the memo, the pipe was designed to serve as a "temporary outlet." Paul Barden, deputy director of engineering services at BWSC, testified that a temporary outlet is not likely to function for more than ten years. The jury heard as well that the pipe was not altered or replaced until the year 2000, approximately forty years after installation, and that, upon replacement of the pipe, the flooding stopped.

There was evidence that the defendants knew that the pipe was damaged in advance of the June, 1998, flood. DPW commissioner Keane testified that, in 1996, he had seen holes in the pipe that were six to eight inches in diameter and that it was reasonable to conclude that water was escaping the pipe. He reported these earlier findings in a memo to his boss after the June, 1998, flooding, stating that the pipe had "open joints" and was in need of cleaning and repair. Barden of the BWSC testified that he also had seen holes in the pipe three months before the June, 1998, flooding and had reason to believe that water was escaping from the pipe.

Further, the Nemets' property was the only property in the surrounding area to have suffered flooding damage. In this regard, the jury heard Keane's testimony that no one in the surrounding area had complained of flooding, and Tracy Nemet's testimony that, after his property flooded, he surveyed neighboring properties and observed that none of them had such water problems.

The defendants, however, claim that causation was not proven because the evidence did not show that water from the broken pipe, as opposed to torrential rainfall, was a substantial factor in causing damage.⁶ In so arguing, the defendants call our attention to Alholm v. Wareham, 371 Mass. 621, 626, 358 N.E.2d 788 (1976), where the plaintiffs, who were injured in a multicar accident, sued the defendant municipality under the theory that the smoke released by its negligently operated dump decreased the other drivers' visibility, thereby causing the accident. Id. at 623, 358 N.E.2d 788. The plaintiffs had not presented any evidence concerning the amount of smoke released from the dump or its specific effects on visibility, and "evidence ... regarding the presence of an extremely heavy fog was overwhelming." Id. at 627, 358 N.E.2d 788. Because the evidence was not sufficient to permit a reasonable jury to infer that the smoke from the dump was more likely to have caused an automobile accident than the dense fog, the jury could not conclude that the smoke was "an operative and potent factor" in causing the accident. Hence, a verdict was correctly directed for the defendant. Id. at 627-628, 358 N.E.2d 788.

The situation here, however, is quite otherwise. Unlike the smoke in Alholm, there was evidence concerning the specific effects of the damaged pipe on the Nemets' property. Such evidence includes Keane's testimony to the effect that there were six to eight inch holes in the pipe and that it was "reasonable to conclude that water was coming out of that pipe from the holes," the Nemets' testimony as to their observations of conditions in the yard, documentary evidence as to the conditions, as well as evidence received without objection that the flooding ceased once the pipe was removed from the Nemets' yard in 2000. This evidence, viewed in the light most favorable to the Nemets, was sufficient to permit a reasonable jury to conclude that the water from the pipe was an "operative and potent factor" in causing the flood damage. See id. at 627, 358 N.E.2d 788. Moreover, unlike Alholm, the defendants' alternative causal explanation for the flooding, i.e., torrential rainfall plus topography, was far from "overwhelming." Ibid. The plaintiffs were not required in any event to exclude all possibility that the damages resulted without the fault of the defendants, and the weakness of the alternative causal explanation only serves further to underscore the reasonableness of the jury's conclusion that the pipe was an "operative and potent factor." Ibid. See McLaughlin v. Bernstein, 356 Mass. 219, 226, 249 N.E.2d 17 (1969).

The second prong of the defendants' attack on the plaintiffs' proof of causation is that, even if it were established that the water causing the damage came from the pipe, the Nemets' evidence did not suffice to show that the defendants' conduct was a substantial legal factor in bringing about the alleged harm. Contrast Tritsch v. Boston Edison Co., 363 Mass. 179, 182, 293 N.E.2d 264 (1973). Otherwise put, the defendants argue that, just because a pipe broke and flooding thereafter occurred, they are not automatically liable for damages. Instead, they claim, the Nemets must prove it more likely than not that the defendants' specific action or inaction caused the damage to the Nemets' property. The Nemets did not meet their burden, say the defendants, because the Nemets neither knew how the pipe broke nor are they qualified to advance such an opinion.

The defendants' argument is wide of the mark, ignoring as it does the well-settled principle that a municipality "is responsible for damages which accrue to individuals through negligence in construction, maintenance or operation of its system of sewers" (emphasis added). Lobster Pot of Lowell, Inc. v. Lowell, 333 Mass. 31, 33, 127 N.E.2d 659 (1955), quoting from Pevear v. Lynn, 249 Mass. 486, 488, 144 N.E. 379 (1924). It is undisputed that the defendants owed the Nemets a duty to maintain the pipe at issue.⁷ It was the Nemets' burden, then, to produce evidence sufficient for a jury reasonably to conclude that the municipalities breached their duty to maintain the pipe and that such breach caused the Nemets damage. The Nemets met this burden by producing evidence that the pipe, many years past its expected life, was leaking and that both defendants, despite having actual knowledge of its defective condition, failed to act before the serious flooding occurred.

2. Competency of evidence to establish causation. The defendants' second claim of error in the denial of their motions for JNOV and new trial concerns the Nemets' failure to introduce expert testimony. They argue that this evidentiary shortcoming precluded the jury from reasonably inferring causation because the...