Stop & Shop Companies, Inc. v. Fisher

• Decision Date: 11 January 1983
• Citation: 444 N.E.2d 368,387 Mass. 889
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: , 1986 A.M.C. 2920 The STOP & SHOP COMPANIES, INC. v. Bruce B. FISHER, et al. 1

Page 368

444 N.E.2d 368

387 Mass. 889, 1986 A.M.C. 2920

The STOP & SHOP COMPANIES, INC. v. Bruce B. FISHER, et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 13, 1982.

Decided Jan. 11, 1983.

George C. Deptula, Boston, for plaintiff.

Paul G. Boylan, Dorchester, for J.D. Irving, Ltd., et al.

Richard Dempsey, Boston, for Bruce B. Fisher.

John Silvia, Jr. and Jeffrey S. Entin, Fall River, amici curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Judge.

The Stop & Shop Companies, Inc. (Stop & Shop), filed a complaint in Superior Court seeking damages for the loss of business revenues allegedly caused by the defendants' negligent collision with a drawbridge resulting in the obstruction of the bridge. After hearings before a special master, a judge of the Superior Court granted summary judgment for the defendants and dismissed the complaint. Stop & Shop appealed, and we took the case on our own motion. We reverse the decision of the Superior Court, in part, upon our conclusion that the plaintiff's complaint adequately states a claim for relief sounding in public nuisance.

The relevant facts as alleged in the complaint are as follows. Stop & Shop owns and operates a supermarket and a Bradlees retail store in Somerset, Massachusetts. Substantial numbers of customers from Fall River travel across the Brightman Street bridge (bridge) to shop at these stores. On or about September 2, 1979, the seagoing barge Irving Sea Lion, owned and operated by the defendant J.D. Irving, Limited, negligently struck the bridge. At the time of the accident, the barge was being pushed by the tugboat Irving Maple, owned and operated by the defendant Universal Sales, Limited and both the tug and the barge were under the control of the defendant Bruce B. Fisher. As a result of the collision, the bridge was closed to traffic for approximately two months, causing a substantial decline in the number of customers who patronized Stop & Shop's stores, which were located at one end of the bridge. Based on these facts, Stop & Shop sought damages for the injury to its business on two theories: the defendants' negligence was the direct cause of Stop & Shop's economic harm, and the defendants' actions contributed to the creation of a nuisance which caused it substantial injury in the use and enjoyment of its property.

The defendants moved "pursuant to Rule 12(b)(6) and Rule 56 of the Massachusetts Rules of Civil Procedure," to dismiss the complaint for "failure to state a cause of action." The parties submitted briefs and memoranda on several legal issues, and hearings on the motions were held before a special master. Neither party submitted any factual materials beyond the pleadings. The special master concluded that "there are no issues of material fact in dispute and the defendants are entitled to prevail as a matter of law." Stop & Shop's position is that the matter before the lower court was a rule 12(b)(6) motion to dismiss (only), and that the complaint was a sufficient statement under the rule. Nevertheless, the judge granted the motions, which he termed "motion[s] to dismiss (treated as ... motion[s] for summary judgment)," and dismissed Stop & Shop's complaint.

We conclude that the motions before the judge should have been treated as rule 12(b)(6) motions, and no more. Our principal consideration of the allegations of the complaint concerns the policy issue whether, in the circumstances alleged here, a plaintiff business establishment states a sufficient claim for relief on either negligence or nuisance grounds, or both. We conclude that the complaint adequately states grounds for relief under its claim sounding in public nuisance. ²

1. We turn first to Stop & Shop's argument that the defendants' motions should have been treated as motions to dismiss for failure to state a claim upon which relief can be granted under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), rather than motions for summary judgment under Mass.R.Civ.P. 56, 365 Mass. 824 (1974). We agree that the defendants' motions are more appropriately characterized as being under rule 12(b)(6). Despite the motions' references to rule 56, it appears that the motions were intended to be motions to dismiss the complaint under rule 12 (b)(6), and were so treated by the parties. More significantly, in granting the motions, the judge characterized them as "motion[s] to dismiss (treated as ... motion[s] for summary judgment)."

We next consider whether these rule 12(b)(6) motions were properly converted to rule 56 motions. Rule 12(b) provides that if on a rule 12(b)(6) motion "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." The category of "matters outside the pleading" is broad, but even when construed broadly, such matters must provide some relevant, factual information to the court. 5 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 1366 at 677-678, 681-682 (1969 & Supp. 1982). Cf. White v. Peabody Constr. Co., 386 Mass. 121, 126, 434 N.E.2d 1015 (1982) (admission of relevant fact by counsel at oral argument sufficient to trigger conversion provision of rule 12(b)). Here, no factual information beyond the pleadings was submitted to or considered by the judge. Memoranda and arguments on legal issues are not sufficient to convert a rule 12(b)(6) motion to one under rule 56. 5 C.A. Wright & A.R. Miller, supra at 682.

The conversion was also improper because Stop & Shop was not notified that it was defending against anything other than rule 12(b)(6) motions, and so it had no practical opportunity to present materials relevant under rule 56. 5 C.A. Wright & A.R. Miller, supra at 683. See Dale v. Hahn, 440 F.2d 633, 638 (2d Cir.1971). A party may be held to have constructive notice that the court is treating a rule 12(b)(6) motion as a motion for summary judgment when it has, itself, submitted extra-pleading material. See White v. Peabody Constr. Co., supra at 127-128, 434 N.E.2d 1015; Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389 (6th Cir.1975). However, that is not the case here.

Since the defendants' rule 12(b)(6) motions were improperly converted to motions under rule 56, without notice to Stop & Shop, we would affirm the decision below only if "it appear[ed] to a certainty that [plaintiff was] entitled to no relief under any state of facts which could be proved in support of the claim." Reporter's Notes to Mass.R.Civ.P. 12, Mass.Ann.Laws, Rules of Civil and Appellate Procedure at 211 (Law. Co-op. 1982), quoting 2A Moore's Federal Practice par. 12.08, at 2274 (2d ed. 1982). Our holding that Stop & Shop's complaint states grounds for relief in nuisance precludes dismissal under this standard. We therefore proceed to discuss its substantive claims.

2. Stop & Shop relies on Newlin v. New England Tel. & Tel. Co., 316 Mass. 234, 235, 54 N.E.2d 929 (1944), to support its claim in negligence. The plaintiff in Newlin alleged that the defendant maintained a pole in a defective condition, by reason of which it fell, cutting off a power line to the plaintiff's mushroom plant. As a result, the mushrooms overheated, the crop was destroyed, and the plaintiff sought to recover for his economic loss. The court held that the plaintiff stated a cause of action. Id. at 237-238, 54 N.E.2d 929.

Stop & Shop's reliance on Newlin is misplaced. The economic loss in Newlin arose from physical harm to the plaintiff's crop. Stop & Shop's losses, by contrast, were not associated with any physical damage to its property.

Those cases relying on Newlin have involved physical harm to the plaintiff or his property. See Kilduff v. Plymouth County Elec. Co., 348 Mass. 328, 330-331, 203 N.E.2d 679 (1965) (court relied on Newlin to allow recovery by plaintiff whose house burned down in an electrical fire caused when defendant's employee dropped an electrical line); Morani v. Agatha Fisheries, Inc., 213 F.Supp. 257, 259-260 (D.Mass.1963) (Newlin supported recovery by worker who was overcome by carbon monoxide gas and fell several feet, causing injuries). Moreover, the Restatement (Second) of Torts, § 766C (1977) denies recovery for "pecuniary harm not deriving from physical harm ... [which] results from the [defendant's] negligently ... interfering with the [plaintiff's] acquiring a contractual relation with a third person." Although some commentators have criticized this position, it remains the general view. See W. Prosser, Torts, § 130, at 952 (4th ed. 1971); H. Perlman, Interference with Contract and other Economic Expectancies: A Clash of Tort and Contract Doctrine, 49 U.Chi.L.Rev. 61, 70 (1982); Note, Negligent Interference with Economic Expectancy: The Case for Recovery, 16 Stan.L.Rev. 664 (1964) (criticizing the general view). Under these circumstances, we see no reason to apply the negligence analysis of Newlin to Stop & Shop's purely economic harm.

3. Stop & Shop's primary claim is that it is entitled to recover because the defendants' conduct created a nuisance which caused Stop & Shop economic loss. Accepting Stop & Shop's allegations as true, the defendants' negligence closed the bridge for approximately two months. This was an obstruction of a public way, and as such constituted a public nuisance. See Robinson v. Brown, 182 Mass. 266, 267-268, 65 N.E. 377 (1902); Wesson v. Washburn Iron Co., 13 Allen 95, 101, 102 (1866); Harvard College v. Stearns, 15 Gray 1, 6-7 (1860); Blood v. Nashua & Lowell R.R., 2 Gray 137, 140 (1854) (river); Prosser, Private Action for Public Nuisance, 52 Va.L.Rev. 997, 1001-1002 (1966). It is firmly established that an individual cannot recover for damages caused by a public nuisance "unless ... he has sustained some...