McLaughlin v. Watts

3 Mass. L. Rptr. 275
CourtMassachusetts Superior Court
DecidedJanuary 18, 1995
DocketNo. 91-6988
StatusPublished

This text of 3 Mass. L. Rptr. 275 (McLaughlin v. Watts) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLaughlin v. Watts, 3 Mass. L. Rptr. 275 (Mass. Ct. App. 1995).

Opinion

Neel, J.

Landowners Robert and Theresa McLaughlin (“the McLaughlins”) claim that development of an adjacent lot has damaged their property and continues to pose a serious danger. The McLaughlins seek damages and injunctive relief against the trus[276]*276tees of Fonzi Realty Trust, defendants William and Robert Fonzi (“the Fonzis”), and defendants William and Marguerite Watts (“the Wattses”), who own the adjacent land. The Fonzis and the Wattses have separately moved for summary judgment.

After hearing, the court grants summary judgment in favor of the Watts on plaintiffs’ strict liability claim. The court also grants summary judgment in favor of the Fonzis on plaintiffs’ strict liability and G.L.c. 148 §20C claims, but denies summary judgment on the trespass claim.

BACKGROUND

The McLaughlins own and reside on real property in Wakefield. In January 1991, the Wattses purchased property which abuts, and is situated on a slope above, the McLaughlins’ land. The Wattses’ land is part of the Orsini Drive Development, a subdivision of land developed by the Fonzi Realty Trust.

The Fonzis began development of the Orsini Drive subdivision in 1985. The development required blasting, moving and removing earth, and filling. In 1986 and 1990, the McLaughlins complained that composting piles gave off odors and attracted flies. As work progressed, these piles were burled, and by the summer of 1990 the odor and flies had disappeared. In December 1990, debris from the development site rolled onto the McLaughlins’ property. In October 1991, the Fonzis entered the McLaughlins’ property and removed the debris in response to a complaint from the McLaughlins. The McLaughlins admit that no debris entered their property as a result of blasting, and have made no other substantial specific claims of past damage.

In developing the Wattses’ property, the Fonzis constructed an embankment above the McLaughlins’ property.3 In 1992, a professional engineer hired by the McLaughlins and an engineering firm hired by the Wattses found in substance that accepted practices with regard to design and construction of a stable embankment were not followed. The McLaughlins’ expert concluded that the embankment was “unsafe and unstable." The Wattses’ expert stated that the problems in the design and construction of the embankment were “not conducive to long term stabilized construction.” Because the McLaughlins’ land is immediately below the embankment, the McLaughlins contend that their property and lives would be directly in harm’s way in the event of a collapse. The Mc-Laughlins have not claimed any personal injury as a result of the alleged defects in the embankment.

DISCUSSION

Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, “and [further] that the moving party is entitled to judgment as a matter of law.” Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). A party moving for summaiyjudgment, who does not have the burden of proof at trial, may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805 (1991), accord, Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat [the] motion.” Pederson, supra at 17. “[T]he opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207, 209 (1989).

The complaint asserts strict liability counts against both the Wattses and the Fonzis; in addition, it asserts counts against the Fonzis alleging violation of G.L.c. 148 §20C, and trespass.

A. Strict liability

Following the rule of Rylands v. Fletcher, [1868] L.R. 3 H.L. 330, the Supreme Judicial Court has held that one who carries on an abnormally dangerous activity is subject to liability for harm resulting from that activity, even if that person has exercised the utmost care to prevent the harm. Ainsworth v. Lakin, 180 Mass. 397, 399 (1902). The question of whether the defendant’s activity is subject to the Rylands rule of strict liability is for the court, not for the jury. Joseph R. Nolan and Laurie J. Sartorio, Tort Law §317 (1989). The nature of the activity should not, in and of itself, determine whether the activity is “abnormally dangerous.” Rather, consideration should focus on whether the risk is so unusual and extraordinary as to justify the imposition of strict liability. The Clark-Aiken Co. v. Cromwell-Wright Co. Inc., 367 Mass. 70, 89 (1975).

In this case, the McLaughlins charge that blasting and earth movement and removal by the Fonzis, and their creation of an allegedly unstable embankment, constituted abnormally dangerous activities.

The movement of earth and the creation of an embankment in the development of a property is not an abnormally dangerous activity, but is rather a common and appropriate use of land. Cf. United Electrical Light Co. v. Deliso Construction Co., 315 Mass. 313, 321-22 (1943). This case differs from Ainsworth v. Lakin, supra, in which the court imposed strict liability on a defendant whose burned-out building toppled onto plaintiffs property. Reviewing the law of strict liability in Clark-Aiken Co. v. Cromwell-Wright [277]*277Co., Inc., supra, the Supreme Judicial Court notes that in Ainsworth the “uselessness” of the structure, and the danger it created, rendered the defendant’s wall “the type of instrumentality covered by the Rylands doctrine,” rather than an “ordinary wall, maintenance of which would be governed by traditional negligence standards.” The Clark-Aiken Co., supra at 81-82. In the present case, there is no indication that the embankment is other than an ordinary structure, useful to the development of the property, and therefore governed by those same negligence standards. Nor is this case similar to dam and dike cases, see, e.g., Bratton v. Rudnick, 283 Mass. 556 (1933), and Golden v. Amory, 329 Mass. 484 (1952), where the escaping instrumentality is water, stored in ponds and lakes, behind barriers — a relatively rare, and substantially more dangerous, use of land compared to the use at issue here. Accordingly, the earth removal and embankment complained of in this case do not form a basis for imposing strict liability.4

While blasting has been recognized as an abnormally dangerous activity under Massachusetts law, strict liability for blasting operations arises only where the plaintiff is directly injured by debris. O’Connor v. E.J. DiCarlo & Sons, Inc., 376 Mass. 927 (1978). In this case, the McLaughlins do not claim that any debris entered their property as a result of blasting.

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Bluebook (online)
3 Mass. L. Rptr. 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclaughlin-v-watts-masssuperct-1995.