Pasquale v. Reading Municipal Light Department

18 Mass. L. Rptr. 370
CourtMassachusetts Superior Court
DecidedSeptember 27, 2004
DocketNo. 20031309
StatusPublished
Cited by2 cases

This text of 18 Mass. L. Rptr. 370 (Pasquale v. Reading Municipal Light Department) 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
Pasquale v. Reading Municipal Light Department, 18 Mass. L. Rptr. 370 (Mass. Ct. App. 2004).

Opinion

Murphy, J.

On March 20, 2003, plaintiffs John and Rosemary Pasquale (“Pasquales”) filed a three-count complaint against defendants Towns of Reading and North Reading (“Towns”), and the Reading Municipal Light Department (“RMLD”) for an electrical fire at their home, alleging negligence (Count i), negligent infliction of emotional distress (Count II), and breach of contract (Count III). The Pasquales seek compensatory damages for real and personal property and personal injuries relating to the fire. The defendants now move for summary judgment against the Pasquales, denying liability on each of the three counts. In addition, defendant RMLD moves for summary judgment on the ground of improper presentment under §4 of G.L.c. 258 (Massachusetts Tort Claims Act) before commencing suit. For the reasons stated below, this motion is ALLOWED for the Towns, and ALLOWED in part and DENIED in part for RMLD.

BACKGROUND

On March 22, 2001 at approximately 2:00 a.m., an electrical fire occurred at the Pasquales’ home in North Reading, Massachusetts. Mr. Pasquale saw sparks and fire in the immediate vicinity of the service entrance cable near the electrical meter in the basement. Harold Lander, a neighbor, recalled a flickering coming down the side of the Pasquales’ house and a “fire like falling down” and that the meter “box” was on fire. Mr. Lander also remembered that that night, there was a “horrible rain ... pouring rain and some lightning and we lost the lights for . . . half an hour or twenty minutes.”

At least two investigations at the Pasquales’ home followed to determine the cause of the fire. The first, by Captain Richard Nash of the North Reading Fire Department, revealed that the fire originated at the electrical panel in the boiler room and resulted from water infiltration. Captain Nash also found that the fire path began at the service panel and ended just below the meter socket outside of the house. The second, by Paul Carson, Chief Engineer for RMLD, found that the “main breaker in the panel was completely destroyed to the point where only a plastic base plate and a few small metal parts remained,” but that the meter was still operational. Mr. Carson also found that the damage originated at the main breaker in the panel and traveled along the service entrance cable into the ceiling in the basement. Mr. Carson discovered “evidence to suggest that water may have been entering the meter socket through the top or back of the socket and pooling in the bottom of the box.”

In the three to four weeks preceding the fire, there were a number of power outages in the neighborhood. While RMLD received no formal reports of outages in the area on March 21, 2001, Mr. Landers stated that the power did in fact go out for “half an hour or twenty minutes.”

The summaiy judgment record reveals the following additional undisputed facts. RMLD provided electricity to the Pasquales on March 22, 2001. RMLD is a separate juridical entity, owned, but not controlled, by the Town of Reading. When the Pasquales initiated their service in 1975, they filed a “Customer Application” for electrical service with RMLD and agreed “to be bound by the RULES and REGULATIONS FOR THE TOWN OF READING MUNICIPAL LIGHT DEPARTMENT governing the use of electricity.” RMLD owned the meter and service wire from the pole to the service loop connected to the Pasquales’ home. It is not the practice of RMLD to maintain or repair any of the service cable located on the side of a customer’s house leading to the meter socket, the meter socket itself or any of the electrical equipment on a customer’s property. Under its General Terms and Conditions of Service (“Terms and Conditions”) filed with the Department of Telecommunications and Energy, §18, RMLD is not liable for any “interruption, abnormal voltage, discontinuance or reversal of its service, due to causes beyond its immediate control. . .”

Following the electrical fire and subsequent investigations, the Pasquales sent letters of presentment to each of the three defendants: Town of Reading, Town of North Reading, and RMLD. They sent three letters of presentment to the Town of North Reading on December 31, 2001: one to the Board of Selectmen, one to the Executive Secretary, and one to the Town Counsel. In addition, the Pasquales sent a letter of presentment on December 31, 2001 to RMLD. This letter, however, was not addressed to any specific person or group of persons, but only to “Sir or Madam.” On March 27, 2002, the Pasquales sent three letters of presentment to the Town of North Reading as well, addressed to the Board of Selectmen, the Executive Secretary, and the Town Counsel. In all, the Pasquales sent seven letters of presentment, each of which was identical in content. In each letter, the Pasquales stated the date of the fire, that “it has been determined that the fire was caused by an abnormal and irregular supply of electrical power,” a claim for damages to real and personal property approximating $100,000, and that the fire resulted from the Town of North Reading’s and/or RMLD’s negligence.

There were at least three letters of correspondence between RMLD’s insurance carrier and the Pasquales regarding an investigation into the cause and circumstances of the fire to determine negligence and damages. In a letter dated November 22, 2002, RMLD’s insurance carrier denied the Pasquales’ claim unless and until the Pasquales supplied evidence that would indicate RMLD’s negligence. In response, on February 3, 2003, the Pasquales stated they would not provide an expert report, but they had an expert who would [460]*460testify as to RMLD’s negligence. In closing, the Pasquales stated that “because you have not made any offer of settlement in this case, we are preparing a Complaint and expect that it will be filed in the near future. Please let us know if you decide that you would like to discuss settlement or, even, mediation.”

The Pasquales incurred real and personal property damages, but suffered no physical injuries as a result of the fire. While Mrs. Pasquale suffers from high blood pressure, this condition existed prior to the fire. Neither Mr. nor Mrs. Pasquale offered medical testimony on the Summary Judgment record of physical injuries or mental distress, but they assert that each suffers from feelings of “anger and upset” and “anxiety/fear of fire/alarms” because of the fire.

DISCUSSION

Summary judgment is properly granted where there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Nashua Corp. v. First State Ins. Co., 420 Mass. 196, 202 (1995); Cassesso v. Comm’r of Corr., 390 Mass. 419, 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue and entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). This burden maybe met by demonstrating that the opposing party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); 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 facts which would establish the existence of a genuine issue of material fact in order to defeat [the motion].” Pederson, 404 Mass. at 17.

I. Towns of Reading and North Reading

A.

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18 Mass. L. Rptr. 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pasquale-v-reading-municipal-light-department-masssuperct-2004.