NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1199
THE NORFOLK & DEDHAM GROUP
vs.
TOWN OF FALMOUTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, the Norfolk & Dedham Group, appeals from a
Superior Court summary judgment in favor of the defendant, the
town of Falmouth (town). The plaintiff argues that genuine
disputes of material fact remain as to whether the town was the
original cause of a water leak in the home of the plaintiff's
insured, and therefore the judge erred in ruling that the town
was immune pursuant to the Massachusetts Tort Claims Act (MTCA),
G. L. c. 258, § 10 (j). Specifically, the plaintiff contends
that the town was negligent in installing a compression fitting
on piping leading to a water meter, failing to inspect and
maintain it, and failing to respond promptly to the report of
the leak. We affirm, concluding that, based on the summary judgment record, the plaintiff has no reasonable expectation of
proving that the town was the original cause of the water leak.
Background. We set forth the facts in the light most
favorable to the plaintiff, the nonmoving party. See Klevan v.
Newton, 97 Mass. App. Ct. 87, 88 n.2 (2020).
The plaintiff provides homeowner's insurance to William
Dowling, Jr. (insured), who owns a home in the town. Under the
policy, the plaintiff is subrogated to the rights of the insured
for damage sustained to the home as the result of the water
leak.
The home was built between 2004 and 2005 by its former
owner (builder). In January 2005, the town provided the home
with a water meter, which the town owns. Around that time, the
water meter and the piping leading to it, including the
compression fitting, were installed. As discussed below, the
parties dispute whether the compression fitting was installed by
a town employee or by a plumber working for the builder. Within
months of its installation, the original water meter froze and
cracked, and in May 2005 a replacement water meter was screwed
in place by a town employee.
In 2008, the insured and his wife bought the home. Shortly
afterwards, an employee of the town's assessor's office walked
through the home, but from then until 2018, no town employee
2 accessed the mechanical room in the basement where the water
meter is located.
At about 5 A.M. on July 14, 2018, the compression fitting
on piping leading to the water meter failed. A heavy flow of
water sprayed from the area of the compression fitting. The
basement flooded with water three or four inches deep. The
insured discovered the flood, and a sliding glass door was
opened; the water subsided to about two inches deep. The
insured called 911, and a few minutes later firefighters
arrived. They asked where the water shutoff valve was, and the
insured replied that he did not know. Unable to find the valve,
the firefighters contacted the town's water department.
An employee of the water department, Joseph P. Gomes,
responded to the home. Gomes checked the town's database for
the location of the home's water shutoff valve at the curb but
found no record of it. Gomes telephoned his supervisor, who
informed him that the builder did not provide the town with a
record of the location of the curb shutoff valve. Using a metal
detector, Gomes tried unsuccessfully to find the curb shutoff
valve.1 Gomes decided to shut off the main valve that supplied
water to the entire street. When Gomes accessed the main valve,
1 It was later determined that the curb shutoff valve was located in front of the house next door.
3 it was clogged with debris; he tried unsuccessfully to clear the
clog with a hand tool. Gomes went to the water department,
retrieved an air compressor, and used it to remove the debris.
From the time that Gomes was notified about the break until he
shut off the water, about ninety minutes had elapsed.
The plaintiff commenced this action, alleging in its second
amended complaint claims against the town for breach of
contract, breach of warranties, strict liability, and
negligence.2 The town moved for summary judgment, asserting that
it is immune from suit under G. L. c. 258, § 10 (j), because it
did not install or maintain the equipment that failed and caused
the flood, and its employee timely shut off the water to the
house. After a hearing, a judge initially denied the motion,
ruling that there remained genuine issues of material fact
including whether the town "was operating in a commercial
capacity" and "owed a duty to the plaintiff." The town moved
for reconsideration, and the judge allowed summary judgment,
citing Magliacane v. Gardner, 483 Mass. 842, 844 (2020), and
2 In addition, a prior version of the complaint alleged claims against GP Contracting, Inc., and the second amended complaint alleged claims against Quality Mechanical Systems, LLC. Those parties were dismissed. The complaint also alleged claims against the town's water department, which were dismissed as subsumed in the claims against the town. None of those claims are before us.
4 ruling that the town was immune from liability under the MTCA.
Judgment entered for the town, and this appeal ensued.
Discussion. In reviewing the grant of summary judgment, we
consider the facts in the light most favorable to the plaintiff,
the nonmoving party. See Mass. R. Civ. P. 56 (c), as amended,
436 Mass. 1404 (2002); Klevan, 97 Mass. App. Ct. at 88 n.2.
Because the plaintiff has the burden of proof at trial, the town
"is entitled to summary judgment if [it] demonstrates, by
reference to material described in [rule] 56 (c), unmet by
countervailing materials, that the [plaintiff] has no reasonable
expectation of proving an essential element of [the plaintiff]'s
case." Zielinski v. Connecticut Valley Sanitary Waste Disposal,
Inc., 70 Mass. App. Ct. 326, 334 (2007), quoting Kourouvacilis
v. General Motors Corp., 410 Mass. 706, 716 (1991). Our review
is de novo, without deference to the motion judge's reasoning.
See Zielinski, supra.
Under the MTCA, public employers are liable for negligence
of their employees, G. L. c. 258, § 2, subject to certain
exceptions enumerated in § 10. Apart from those exceptions, the
MTCA "covers all claims brought against a city, even those
arising from the city's sale of water to its residents."
Magliacane, 483 Mass. at 844. The exception at issue here is
set forth in § 10 (j), which provides that a public employer is
not liable for "any claim based on an act or failure to act to
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1199
THE NORFOLK & DEDHAM GROUP
vs.
TOWN OF FALMOUTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, the Norfolk & Dedham Group, appeals from a
Superior Court summary judgment in favor of the defendant, the
town of Falmouth (town). The plaintiff argues that genuine
disputes of material fact remain as to whether the town was the
original cause of a water leak in the home of the plaintiff's
insured, and therefore the judge erred in ruling that the town
was immune pursuant to the Massachusetts Tort Claims Act (MTCA),
G. L. c. 258, § 10 (j). Specifically, the plaintiff contends
that the town was negligent in installing a compression fitting
on piping leading to a water meter, failing to inspect and
maintain it, and failing to respond promptly to the report of
the leak. We affirm, concluding that, based on the summary judgment record, the plaintiff has no reasonable expectation of
proving that the town was the original cause of the water leak.
Background. We set forth the facts in the light most
favorable to the plaintiff, the nonmoving party. See Klevan v.
Newton, 97 Mass. App. Ct. 87, 88 n.2 (2020).
The plaintiff provides homeowner's insurance to William
Dowling, Jr. (insured), who owns a home in the town. Under the
policy, the plaintiff is subrogated to the rights of the insured
for damage sustained to the home as the result of the water
leak.
The home was built between 2004 and 2005 by its former
owner (builder). In January 2005, the town provided the home
with a water meter, which the town owns. Around that time, the
water meter and the piping leading to it, including the
compression fitting, were installed. As discussed below, the
parties dispute whether the compression fitting was installed by
a town employee or by a plumber working for the builder. Within
months of its installation, the original water meter froze and
cracked, and in May 2005 a replacement water meter was screwed
in place by a town employee.
In 2008, the insured and his wife bought the home. Shortly
afterwards, an employee of the town's assessor's office walked
through the home, but from then until 2018, no town employee
2 accessed the mechanical room in the basement where the water
meter is located.
At about 5 A.M. on July 14, 2018, the compression fitting
on piping leading to the water meter failed. A heavy flow of
water sprayed from the area of the compression fitting. The
basement flooded with water three or four inches deep. The
insured discovered the flood, and a sliding glass door was
opened; the water subsided to about two inches deep. The
insured called 911, and a few minutes later firefighters
arrived. They asked where the water shutoff valve was, and the
insured replied that he did not know. Unable to find the valve,
the firefighters contacted the town's water department.
An employee of the water department, Joseph P. Gomes,
responded to the home. Gomes checked the town's database for
the location of the home's water shutoff valve at the curb but
found no record of it. Gomes telephoned his supervisor, who
informed him that the builder did not provide the town with a
record of the location of the curb shutoff valve. Using a metal
detector, Gomes tried unsuccessfully to find the curb shutoff
valve.1 Gomes decided to shut off the main valve that supplied
water to the entire street. When Gomes accessed the main valve,
1 It was later determined that the curb shutoff valve was located in front of the house next door.
3 it was clogged with debris; he tried unsuccessfully to clear the
clog with a hand tool. Gomes went to the water department,
retrieved an air compressor, and used it to remove the debris.
From the time that Gomes was notified about the break until he
shut off the water, about ninety minutes had elapsed.
The plaintiff commenced this action, alleging in its second
amended complaint claims against the town for breach of
contract, breach of warranties, strict liability, and
negligence.2 The town moved for summary judgment, asserting that
it is immune from suit under G. L. c. 258, § 10 (j), because it
did not install or maintain the equipment that failed and caused
the flood, and its employee timely shut off the water to the
house. After a hearing, a judge initially denied the motion,
ruling that there remained genuine issues of material fact
including whether the town "was operating in a commercial
capacity" and "owed a duty to the plaintiff." The town moved
for reconsideration, and the judge allowed summary judgment,
citing Magliacane v. Gardner, 483 Mass. 842, 844 (2020), and
2 In addition, a prior version of the complaint alleged claims against GP Contracting, Inc., and the second amended complaint alleged claims against Quality Mechanical Systems, LLC. Those parties were dismissed. The complaint also alleged claims against the town's water department, which were dismissed as subsumed in the claims against the town. None of those claims are before us.
4 ruling that the town was immune from liability under the MTCA.
Judgment entered for the town, and this appeal ensued.
Discussion. In reviewing the grant of summary judgment, we
consider the facts in the light most favorable to the plaintiff,
the nonmoving party. See Mass. R. Civ. P. 56 (c), as amended,
436 Mass. 1404 (2002); Klevan, 97 Mass. App. Ct. at 88 n.2.
Because the plaintiff has the burden of proof at trial, the town
"is entitled to summary judgment if [it] demonstrates, by
reference to material described in [rule] 56 (c), unmet by
countervailing materials, that the [plaintiff] has no reasonable
expectation of proving an essential element of [the plaintiff]'s
case." Zielinski v. Connecticut Valley Sanitary Waste Disposal,
Inc., 70 Mass. App. Ct. 326, 334 (2007), quoting Kourouvacilis
v. General Motors Corp., 410 Mass. 706, 716 (1991). Our review
is de novo, without deference to the motion judge's reasoning.
See Zielinski, supra.
Under the MTCA, public employers are liable for negligence
of their employees, G. L. c. 258, § 2, subject to certain
exceptions enumerated in § 10. Apart from those exceptions, the
MTCA "covers all claims brought against a city, even those
arising from the city's sale of water to its residents."
Magliacane, 483 Mass. at 844. The exception at issue here is
set forth in § 10 (j), which provides that a public employer is
not liable for "any claim based on an act or failure to act to
5 prevent or diminish the harmful consequences of a condition or
situation . . . which is not originally caused by the public
employer or any other person acting on behalf of the public
employer."3 On this record, the application of § 10 (j) is a
question of law. See Klevan, 97 Mass. App. Ct. at 90 n.8.
The plaintiff argues that there are genuine disputes of
material fact as to whether the town's conduct was the original
cause of the water damage, such that the town is not subject to
the exceptions in § 10 (j). See Magliacane, 483 Mass. at 859
(city not entitled to § 10 [j] immunity for supplying water so
low in alkalinity that it corroded water heaters). For the
plaintiff to establish that the town was the original cause of
the flood requires a "rigorous causation analysis, focused on
the cause of the actual harmful 'condition' that is alleged."
Klevan, 97 Mass. App. Ct. at 94. The plaintiff contends that it
presented sufficient evidence to raise a genuine issue of
material fact on three aspects of the town's alleged conduct:
(1) improper installation of the compression fitting, (2)
3 The plaintiff relies on many cases that predate the 1978 enactment of the MTCA, G. L. c. 258, § 10, added by St. 1978, c. 512, § 15, and its 1993 amendment to add § 10 (j), added by St. 1993, c. 495, § 5. See, e.g., Reil v. Lowell Gas Co., 353 Mass. 120, 130 (1967) (gas company liable for failure of service pipe not owned by it). Because the MTCA reflected a "legislative intent to repeal the common-law patchwork of exceptions," Magliacane, 483 Mass. at 850, cases that predate it are inapposite.
6 failure to maintain it, and (3) delay in shutting off the water.
We address each in turn.
1. Improper installation of compression fitting. The
plaintiff argues that the town is not entitled to immunity under
G. L. c. 258, § 10 (j), because its employee improperly
installed the compression fitting, and thus the town was the
"original cause" of the condition that led to the flood and is
liable to the insured for breach of contract and negligence.
See Magliacane, 483 Mass. at 858-859; Klevan, 97 Mass. App. Ct.
at 90-91. In its complaint, the plaintiff alleged that the town
provided and maintained water service and "the equipment
necessary thereto," and its negligence caused water damage "due
to a piping malfunction."
With its motion for summary judgment, the town presented
the deposition testimony of Cathal O'Brien, superintendent of
the town's water department. O'Brien testified that in January
2005, the town issued a permit to install the water meter, which
was signed by the builder and approved by the town. O'Brien
explained that the notation "10/29/04 will send plumber so mtr
can be installed" on the permit meant that the water meter would
be delivered to the builder's plumbing contractor who would
install it.4 Also in the summary judgment record are two
4 O'Brien also testified that the town's plumbing inspector would inspect the installation. The plaintiff does not argue
7 specification diagrams from the town's utilities division, one
captioned "METER INSTALLATION DETAIL" and the other "2 [inch]
METER PIT INSTALLATION." Both diagrams contained a notation
that certain items depicted are "FURNISHED BY WATER DEPT.
INSTALLED BY CONTRACTOR." O'Brien testified that the town water
department did not install the water meter, the piping leading
to it, or the compression fitting on the piping because its
employees are not licensed plumbers. O'Brien also testified
that the expected life span of the compression fitting would be
twenty years, and its failure after thirteen years was most
likely the result of work on the plumbing system or a change in
water pressure.
In opposition to summary judgment, the plaintiff submitted
an affidavit of its expert mechanical engineer, Curt M.
Freedman, averring that "there was no permit taken out" to
install the water meter, and therefore it must have been
installed by the town rather than a private plumbing contractor.
Freedman's affidavit related that the plumber who replaced the
pipe fitting, Michael Golden, stated that "it was his finding
that the subject piping fitting installed near the water meter
that the town's plumbing inspector was negligent in inspecting the installation of the water meter in 2005, and so we do not consider that issue.
8 failed as a result of improper installation."5 Freedman also
opined that the flood was caused by the town's improper
installation of the compression fitting.
From the summary judgment record before us, we conclude
that the plaintiff did not establish that it had a reasonable
expectation of proving at trial that the town installed the
compression fitting in 2005, or that it did so improperly. See
Zielinski, 70 Mass. App. Ct. at 334. Freedman's affidavit
averring that the town "likely installed" the compression
fitting, did not overcome the town's assertions that it did not
do so, based on evidence including O'Brien's deposition
testimony, the water meter permit, and the notations on the
utilities division diagrams that certain items were supplied by
the town but installed by the contractor. Indeed, the premise
of Freedman's opinion -- that "there was no permit taken out" to
install the water meter -- is refuted by the summary judgment
record. As O'Brien testified, the town's approval of the
builder's application for new water and sewer service "is the
permit," i.e., "[t]he permit is the signed application." The
plaintiff presented no affidavit of anyone with personal
5 At his deposition, the insured testified that at about 7:30 A.M. on the day of the flood, he telephoned the builder, who had been his friend since high school and who sent the plumber to the home who repaired the leak.
9 knowledge of the installation of the compression fitting -- such
as the builder who signed the water meter permit -- to
countervail the town's assertions that it did not install the
compression fitting and that its employees were not licensed or
qualified to do so. Freedman's affidavit opining that the town
"likely" installed the compression fitting is insufficient to
defeat summary judgment. "Conclusory statements, general
denials, and factual allegations not based on personal knowledge
[are] insufficient to avoid summary judgment" (citation
omitted). Madsen v. Erwin, 395 Mass. 715, 721 (1985). See
Cottrell v. Laidley, 103 Mass. App. Ct. 483, 494 (2023)
(doctor's affidavit stating nonmedical opinion that plaintiff's
snoring "should have been apparent" to employer did not defeat
summary judgment).
As for the averments in Freedman's affidavit that the
compression fitting failed as a result of improper installation,
those were not based on Freedman's personal knowledge as
required by Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974), but
instead on hearsay statements of Golden which "must be
disregarded in passing on the motion for summary judgment."
Ortiz v. Morris, 97 Mass. App. Ct. 358, 362 (2020).6
6 Without deciding the issue, we note that the town argues that the installation of the compression fitting in 2005 was too remote in time to be the cause of the leak thirteen years later in 2018. See Kent v. Commonwealth, 437 Mass. 312, 319-320
10 2. Failure to periodically inspect compression fitting.
The plaintiff argues that the town failed to perform inspections
of water lines and components as mandated by a town ordinance,
and that violation was presumptive evidence of negligence. See
Klevan, 97 Mass. App. Ct. at 92 n.9 (immunity under § 10 [j]
does not apply to negligent maintenance by town).
The summary judgment record establishes that, after its
installation in 2005, no town employee entered the home to
service the water meter. O'Brien testified that town employees
do not enter customers' homes to read water meters; instead,
meters are read by radio signals.7
In opposition to summary judgment, the plaintiff relied on
Freedman's affidavit averring that "emergency ordinance section
223 . . . mandates semiannual inspections at the very area that
failed." That section of the town's water bylaw, chapter 223 of
the town's code, contains § 233-18, which requires semiannual
(2002) (release of parolee too remote to be original cause of murder eight years later). See also Klevan, 97 Mass. App. Ct. at 92 (city's design of sewer system not "affirmative act" that caused sewage backup, where "the sewer system had operated as designed for decades, without incident").
7 The record before us contains no information about any ordinance authorizing town employees to access water meters, as was common before technological advances permitted meters to be read remotely. See, e.g., Cohen v. Board of Water Comm'rs, Fire Dist. No. 1, S. Hadley, 411 Mass. 744, 749 (1992) (construing town ordinance that required property owner to keep water meter accessible for reading and servicing).
11 inspections of "backflow prevention devices" that prevent
contaminated water from infiltrating potable water. The record
before us contains no information that the compression fitting
was a backflow prevention device, or that any contaminated water
infiltrated potable water. The plaintiff did not defeat summary
judgment merely by presenting Freedman's unsupported assertion
that "the very area that failed" was the same equipment as to
which the ordinance pertained. See Ortiz, 97 Mass. App. Ct. at
362. And in any event, even assuming that the ordinance applied
in these circumstances, the town is immune under § 10 (j) for
failure to inspect the water meter where the plaintiff has no
reasonable expectation of proving that the town was the original
cause of any improper installation, as discussed above. See
Klevan, 97 Mass. App. Ct. at 92 n.9.
3. Delay in turning off water. Finally, the plaintiff
contends that the town negligently delayed turning off the
water, causing additional damage.
In support of its motion for summary judgment, the town
presented O'Brien's deposition testimony opining that Gomes's
ninety-minute response time was reasonable based on a Department
of Transportation standard. The plaintiff argues that a delay
of ninety minutes was negligent. We conclude that the plaintiff
has no reasonable expectation of proving that the ninety-minute
interval that elapsed from the time that Gomes was notified
12 until the water was turned off materially contributed to the
water damage condition. See Cormier v. Lynn, 479 Mass. 35, 40
(2018) (public employer's failure to act to prevent harm caused
by third party not original cause of injury). It is undisputed
that, once the insured discovered the water leak and opened the
sliding glass door, the water level dropped to two inches and
never increased. Furthermore, the difficulties that Gomes
experienced while responding to the flood -- including looking
for the curb shutoff valve and clearing debris from the main
shutoff valve -- were not the original cause of the flood.
"[T]he principal purpose of § 10 (j) is to preclude liability
for failures to prevent or diminish harm." Brum v. Dartmouth,
428 Mass. 684, 696 (1999). See also Klevan, 97 Mass. App. Ct.
at 91.8
Judgment affirmed.
By the Court (Shin, Grant & Smyth, JJ.9),
Clerk
Entered: October 4, 2024.
8 The town is entitled to the costs of the appeal in the ordinary course. See Mass. R. A. P. 26 (a), as appearing in 481 Mass. 1655 (2019).
9 The panelists are listed in order of seniority.