Salm v. Bailin & Assiociates, Inc.
| Decision Date | 18 March 2014 |
| Docket Number | CIVIL ACTION NO. 11-40180-TSH |
| Court | U.S. District Court — District of Massachusetts |
| Parties | JAMES P. VANDER SALM and JESSICA T. VANDER SALM, as Trustees of the Judith P. Vander Salm Irrevocable Trust, and JUDITH P. VANDER SALM Plaintiffs, v. BAILIN & ASSIOCIATES, INC., the SALISBURY HILL CONDOMINIUM TRUST, PETER T. KARASSIK, individually, JOHN L. MACKOUL, individually, THOMPSON-LISTON ASSOCIATES, INC., PATRICK J. HEALY, individually, ROTTI CONSTRUCTION COMPANY, INC., WALTER J. ROTTI, individually, ECOTEC INC., and PAUL J. MCMANUS, individually, Defendants. |
HILLMAN, D.J.
James P. Vander Salm and Jessica T. Vander Salm, as Trustees of the Judith P. Vander Salm Irrevocable Trust, and Judith P. Vander Salm (collectively "Plaintiffs") filed a Complaint against Ecotec, Inc. ("Ecotec") and Paul J. McManus ("McManus") (collectively "Defendants") for negligence (Count III), continuing trespass (Count V), and continuing nuisance (Count VI).Defendants have moved for summary judgment on all counts in Defendants Ecotec, Inc.'s and Paul J. McManus' Motion for Summary Judgment (Docket No. 180). Defendants have also filed a Partial Concurrence and Joinder in the Motion for Summary Judgment of Defendants Bailin and Associates, Inc., Peter T. Karassik, John L. MacKoul, Thompson-Liston Associates, Inc., Patrick J. Healy, Rotti Construction Company, Inc., and Walter R. Rotti (hereinafter "Co-Defendants") (Docket No. 179). In their Motion for Joinder, Defendants adopt and incorporate by reference the arguments made in the Memorandum of Law in Support of Defendants' Motion for Summary Judgment (Docket No. 162) in Sections I, II, III, IV, VI, VII, XI, XII, and XIII, adopt and incorporate the Concise Statement of Undisputed Material Facts in Support of Defendants' Motion for Summary Judgment (Docket No. 163), and ask this Court to enter summary judgment in favor of Defendants to the extent it enters summary judgment in favor of the Co-Defendants. For the reasons set forth below Defendants' motion for summary judgment is granted in part and denied in part, and Defendants' partial concurrence and joinder is granted.
This case involves a pond (the "Pond") located south of Whisper Drive, behind and partially on property owned by the Vander Salm Trust at 655 Salisbury Street Worcester, Massachusetts (the "Vander Salm Property"). Plaintiffs claim that Defendants are, in part, responsible for releases of silt/sediment into stormwater runoff that migrates to the Pond, and that this silt or sediment has caused the growth of choking algae and weeds in the Pond.
Judith P. Vander Salm is the sole resident of the Vander Salm Property. She acquired it in 1981 and conveyed it to the Vander Salm Trust in 2011. A portion of the Pond is on that land and Plaintiffs also hold an easement for recreational use of the entire Pond. They also have an easement to maintain the dam that controls the Pond's water level, and an easement to garden oncertain parts of the Pond's perimeter. The Pond is fed by a stream that first leads to a pond north of Whisper Drive (the "North Pond") and connects to the Pond by a culvert under Whisper Drive. Plaintiffs claim that the discharge of sediment and other pollutants into the Pond has greatly diminished Plaintiffs' recreational uses of the Pond.
In 2000, Bailin & Associates ("Bailin") purchased approximately 86 acres of land to the west of Salisbury Street located at 757 Salisbury Street (the "Salisbury Hill Property"), where it planned to construct of a Continuing Care Retirement Community. In 2001, Bailin hired Thompson-Liston Associates, Inc. ("TLA") to perform design engineer services for the development of the Salisbury Hill Property, including designing an erosion control program and storm water management system. TLA designed the stormwater treatment and collection system and prepared an Erosion and Sedimentation Control Program and a Drainage Structure Operation & Maintenance Program.
In 2003, Bailin retained EcoTec to provide wetlands consulting services to Bailin with respect to the Salisbury Hill Property, including inspection and monitoring services. McManus is the owner and President of EcoTec, and beginning in March 2003 conducted monitoring, inspections, and other tasks necessary to enable EcoTec to provide certain information and recommendations to Bailin regarding the prevention, minimization or mitigation of possible impacts to jurisdictional wetland resources at the Salisbury Hill construction site resulting from possible erosion or sedimentation migration.
Defendant Water R. Rotti of Rotti Construction Company, Inc. ("RCC") installed and maintained erosion control components at the Salisbury Hill Development including silt fences and hay bales. This installation and maintenance was done by RCC under the direction of Bailin, and were not the responsibility of EcoTec or MacManus.
Plaintiffs do not object to Defendants' Partial Concurrence and Joinder to the extent the arguments Defendants seek to adopt are relevant and not specific to the Co-Defendants. The Partial Concurrence and Joinder is granted to this extent.
Summary judgment is appropriate when "there is no genuine issue as to any material fact" and thus "the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" when the evidence is such that a reasonable fact-finder could resolve the point in favor of the non-moving party, and a fact is "material" when it might affect the outcome of the suit under the applicable law. Morris v. Gov't Dev. Bank, 27 F.3d 746, 748 (1st Cir.1994). The moving party is responsible for "identifying those portions [of the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1968). It can meet its burden either by "offering evidence to disprove an element of the plaintiff's case or by demonstrating an 'absence of evidence to support the non-moving party's case.'" Rakes v. U.S., 352 F. Supp. 2d 47, 52 (D. Mass. 2005) (quoting Celotex, 477 U.S. at 4). The non-moving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material fact. Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994) (discussing Celotex, 477 U.S. at 325). When ruling on a motion for summary judgment, the court must construe the facts in the light most favorable to the non-moving party. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003).
As this Court explained in its Memorandum of Decision on Defendant's Motion forSummary Judgment and Plaintiff's Motion for Partial Summary Judgment (Docket No. 228), Plaintiffs' negligence claim is time barred, as it was not brought within three years after the cause of action accrued. M.G.L. c. 260 § 2A. ("Except as otherwise provided, actions of tort...shall be commenced only within three years next after the cause of action accrues.). This applies to Defendants just as it did to the Co-Defendants that were the subject of that Memorandum of Decision. Summary judgment is therefore granted in favor of Defendants on Count III. Continuing Trespass
Count V of Plaintiffs' Amended Complaint alleges continuing trespass and claims each Defendant is liable for its part in causing repeated discharges of sediment into the Pond. Defendants have adopted the relevant arguments regarding trespass made by the Co-Defendants in their Memorandum of Law in Support of Defendants' Motion for Summary Judgment (Docket ...
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