Shapiro v. City of Worcester, SJC–11118

Citation464 Mass. 261,982 N.E.2d 516
Decision Date30 January 2013
Docket NumberSJC–11118,SJC–11119.
PartiesWilliam SHAPIRO & another v. CITY OF WORCESTER. Henry Greenberg v. City of Worcester.
CourtUnited States State Supreme Judicial Court of Massachusetts

464 Mass. 261
982 N.E.2d 516

William SHAPIRO & another 1

Henry Greenberg
City of Worcester.

SJC–11118, SJC–11119.

Supreme Judicial Court of Massachusetts,

Argued Oct. 4, 2012.
Decided Jan. 30, 2013.

[982 N.E.2d 519]

Wendy L. Quinn, Assistant City Solicitor, for city of Worcester.

John R. Maciolek for William Shapiro & others.



[464 Mass. 262]In this consolidated appeal, we review two cases, one brought by William and Sherry Shapiro and the other by Henry Greenberg (collectively, plaintiffs), against the defendant, the city of Worcester (city). In their respective actions, which each commenced in the Superior Court in 2008, the plaintiffs allege that the city is liable to them for nuisance, continuing nuisance, and continuing trespass, arising from the discharge of effluent from the city's sewer system onto their properties. In response, the city contends that the plaintiffs' nuisance claims are barred because they failed to satisfy the presentment requirement of the Massachusetts Torts Claims Act (Act), G.L. c. 258, § 4, which, the city contends, applies retroactively in light of our decision in Morrissey v. New England Deaconess Ass'n—Abundant Life Communities, Inc., 458 Mass. 580, 940 N.E.2d 391 (2010)( Morrissey ).

Additionally, the city argues that the Shapiros' nuisance claims are independently barred by provisions of the Act that provide sovereign immunity to municipalities in instances involving either discretionary decision-making, G.L. c. 258, § 10 ( b ); or the exercise of a public duty, id. at § 10 ( j ). Finally, the city argues that the Shapiros' trespass claim fails as a matter of law because the city did not commit an affirmative voluntary act to cause the sewage discharge. The Shapiros' case is before the court on the city's appeal from an order denying its motions to dismiss and for summary judgment. Greenberg's case is before [464 Mass. 263]the court on the city's appeal from an order denying its motion for reconsideration of a previous denial, in part, of its motion for summary judgment. We transferred both appeals to this court on our own motion.

We conclude that application of the presentment requirement in these cases would be egregiously unfair to the plaintiffs given that the law did not require presentment of nuisance claims at the time they filed their lawsuits. As such, we limit the retroactive application of our decision in Morrissey to the Act's substantive provisions but decline to extend that principle to the procedural requirement of presentment as it relates to claims whose presentment period would have already expired on the date the decision issued. Further, we hold that neither of the statutory exceptions to sovereign immunity cited by the city is applicable in this case and that the city remains subject to suit. We do not reach the issue whether the city acted with the requisite level of intent with respect to the trespass claim as that issue is not properly before the court.

Background. The complaints and the summary judgment records set forth the following facts, which we accept as true for the purposes of our review. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), quoting

[982 N.E.2d 520]

Bell Atl. Corp.v. Twombly, 550 U.S. 544, 555–556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). On May 11, 2000, the city and the Metropolitan District Commission (MDC) executed an agreement (agreement) allowing the MDC to use the city's sewer system. In lieu of a sewer connection fee, the MDC agreed to design, construct, and inspect sewer improvements to the city's sewer system worth approximately $2.875 million. These improvements were to be made in the area of the city that provides sewer service to the plaintiffs' homes on Kinnicutt Road South and Creswell Road. According to the terms of the agreement, the improvement project was to be completed no later than July 1, 2005.

Prior to entering the agreement, the city and MDC conducted studies to determine if the increased flow within the sewer system that would arise from the MDC's use could be accommodated without improvements. In 1996, a report authored by the MDC forecasted that, without the necessary improvements, sanitary sewer backups could occur in residential properties, [464 Mass. 264]such as the plaintiffs', during severe weather conditions. As predicted, on April 3, 2005, October 15, 2006, and April 16, 2007, three backups in the city's sewer line resulted in the discharge of raw sewage onto the area of Kinnicutt Road South and Creswell Road, allegedly causing damage to the plaintiffs' personal and real property, and injury to their persons. At the time of the backups, none of the improvements required under the agreement had been undertaken, and as of June, 2006, the MDC had not even begun designing the sewer improvements. A subsequent report, issued in 2007, concluded that the overflows were due to heavy rain that had infiltrated the system. The report indicated that the discharge was consistent with the predictions made in the MDC's 1996 report and that the system would continue to be subject to overflows in severe weather conditions without the proposed improvements.

Discussion. 1. Doctrine of present execution. We consider at the outset whether the issues presented by the judges' interlocutory orders are properly before the court. “As a general rule, an aggrieved litigant cannot as a matter of right pursue an immediate appeal from an interlocutory order unless a statute or rule authorizes it.” Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 673–674, 881 N.E.2d 129 (2008). According to the doctrine of present execution, however, an interlocutory order is immediately appealable if “it concerns an issue that is ‘collateral to the basic controversy,’ ” Brum v. Dartmouth, 428 Mass. 684, 687, 704 N.E.2d 1147 (1999), quoting Maddocks v. Ricker, 403 Mass. 592, 600, 531 N.E.2d 583 (1988), and the ruling “ ‘will interfere with rights in a way that cannot be remedied on appeal’ from the final judgment.” 2Elles v. Zoning Bd. of Appeals of Quincy, supra at 674, 881 N.E.2d 129, quoting Maddocks v. Ricker, supra at 597–600, 531 N.E.2d 583. Orders denying motions to dismiss based on immunity from suit fall into this limited class of cases because (1) such orders are always collateral to the rights asserted in the underlying action, Kent v. Commonwealth, 437 Mass. 312, 317, 771 N.E.2d 770 (2002); and (2) the right to immunity from suit would be lost forever if such orders were not appealable until the close of litigation. [464 Mass. 265]Breault v. Chairman of the Bd. of FireComm'rs of Springfield, 401 Mass. 26, 31, 513 N.E.2d 1277 (1987), cert. denied sub nom. Forastiere v. Breault, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988).

[982 N.E.2d 521]

Here, the city is entitled as a matter of right to seek interlocutory review of the orders denying its motions for summary judgment with respect to the applicability of the exceptions to waiver of sovereign immunity under the Act.3 See Kent v. Commonwealth, supra at 317–320, 771 N.E.2d 770 (concluding that doctrine of present execution applies to claims of immunity under G.L. c. 258, § 10 [ j ] ). The city is similarly authorized to seek interlocutory review of the denial of its motions to dismiss and for reconsideration as they relate to the retroactivity of the presentment requirement. As with the exceptions to the waiver of sovereign immunity, the presentment requirement is collateral to the substantive aspects of the Act, and the city's right to avoid harassing litigation would be lost forever if it were unable to appeal immediately the judges' orders that the presentment requirement does not apply retroactively to the plaintiffs' nuisance claims.

However, the same is not true for the city's appeal of the denial of its motion for summary judgment on the issue of whether the Shapiro's negligent trespass claim can survive as a matter of law. The judge's conclusion that the trespass claim survives, because “this is only an action for negligent trespass, [and] there is no requirement that the plaintiffs show an intentional act by the City,” is substantive, not collateral, and does not affect the efficacy of the city's appeal at the conclusion of litigation. Thus, the doctrine of present execution is inapplicable, and this issue is not properly before the court.4

[464 Mass. 266]2. Retroactive application of presentment requirement. We next consider the applicability of the presentment requirement. Orders on motions to dismiss and for reconsideration of motions for summary judgment are legal conclusions that this court reviews de novo. See Curtis v. Herb Chambers I–95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011); Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215, 786 N.E.2d 817 (2003). The thrust of the city's argument is that our decision in Morrissey explicitly requires retroactive application of the Act to nuisance claims and, therefore, the plaintiffs' claims are barred because they failed to present their claims to the city in a timely manner as required by G.L. c. 258, § 4. The plaintiffs respond that our decision in Morrissey does not expressly require retroactive application of the presentment requirement and that such application would be patently unjust given that the law did not require any such presentment at the time of filing. We agree with the plaintiffs.

We begin by providing some historical context regarding the Act and nuisance

[982 N.E.2d 522]

claims. The Act was enacted in 1978, and provides:

“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 ... except that public employers shall not be liable ... for any amount in excess of $100,000.......

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