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Private Nuisance Suits Against Municipalities: Limits on Damages and Open Issues in the Wake of Morrissey v. New England Deaconess Ass'n

It has been just over one year since the Massachusetts SJC rendered its decision in Morrissey v. New England Deaconess Ass'n-Abundant Life Communities, Inc., 458 Mass. 580 (2010). Although still relatively an unknown case, it has significant ramifications for private landowners seeking damages against municipalities for acts that constitute a nuisance.

In Morrissey, the issue before the court was, inter alia, whether private nuisance claims against the Commonwealth (and, implicitly, other public employers like municipalities) falls within the scope of the Massachusetts Tort Claims Act (MTCA), or whether these claims could continue to be litigated under common law. The issue was important since the MTCA has limitations on causes of action and monetary recoveries as discussed below.

The MTCA provides, in relevant part, as follows:

Public employers shall be liable for injury or loss of property ... caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances, except that public employers shall not be liable ... for any amount in excess of one hundred thousand dollars. The remedies provided by this chapter shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the public employer.

M.G.L. c. 258, § 2. The Legislature enacted the MTCA in 1978 in order to abolish the doctrine of sovereign immunity as well as the "crazy quilt" of exceptions to sovereign immunity that had developed in the courts until that point. By enacting the MTCA, "plaintiffs with valid tort claims [were allowed] to recover damages against the Commonwealth and other public employers, subject to certain specified limitations." Morrissey, 458 Mass. at 587.

Notably, the statute does not expressly provide for claims of private nuisance. Consequently, beginning with the 1987 case of Asiala v. Fitchburg, 24 Mass. App. Ct. 13 (1987), the Appeals Court (and trial courts) had decided private nuisance cases against public employers as though they were outside the scope of MTCA.

Generally, a private nuisance is

. . . actionable when a property owner creates, permits, or maintains a condition or activity on [its] property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another.

Taygeta Corp. v. Varian Assocs., 436 Mass. 217, 231 (2002), quoting Doe v. New Bedford Hous. Auth., 417 Mass. 273, 288 (1994). Private nuisance claims often include acts such as unauthorized discharge of water onto property, failure to construct or maintain retaining walls along a property boundary line, creating noise, vibrations or dust, or causing erosion.

In December 2010, the Morrissey court held that private nuisance claims against public employers do fall within the purview of the MTCA. Remarkably, this holding overruled (or abrogated) more than two decades of common law jurisprudence that had allowed private nuisance suits against municipalities and the Commonwealth to take place outside the context of the MTCA.

Moreover, the SJC went on to note that, at least in Morrissey, the private nuisance claim brought by plaintiff fell within two important exceptions to the waiver of sovereign immunity contemplated by the MTCA (in § 10): 1) claims based upon the issuance, denial, suspension or revocation of a permit; and 2) claims based upon the exercise/performance or the failure to exercise/perform a discretionary function or duty.

To the extent that it relied heavily on the overall legislative purpose of the MTCA, the SJC's decision in Morrissey is well-reasoned, and, in some aspects, not overly surprising. However, the consequences to private landowners are significant.

First, and perhaps most importantly, the maximum damages that any plaintiff can recover against a municipality or the Commonwealth for a private nuisance claim is $100,000. This amount may be far less than the actual damages suffered by a plaintiff with a valid private nuisance claim. Second, the holding in Morrissey is being applied retroactively, and thus any pending private nuisance claims against a municipality-or those that have yet to be filed for past acts-will be subject to the parameters of the MTCA. Finally, considering the contexts under which municipalities typically act-via issuance/denial of permits or under their discretionary function and duty-then it is hard to imagine circumstances where the exceptions to the waiver of sovereign immunity would not bar a plaintiff from filing suit. One issue that seems to be open, however, is whether there is a set of facts that might invoke a private nuisance claim but that could also rise to the level of a taking by eminent domain in the form of a taking in pais and so provide a remedy notwithstanding the MTCA.

Written by Kristen M. Ploetz, Blog Editor

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

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