Morrissey v. New England Deaconess Ass'n - Abundant Life Communities, Inc.
458 Mass. 580
Mass.2010Background
- Morrissey, as trustee for the JNM 2006 Trust, owns property adjacent to Route 2 in Lincoln, with access via Trust driveway to a state highway.
- Deaconess planned widening Route 2 for a turn-in/out lane; a riprap escarpment and drainage work were proposed; a highway permit was issued to Deaconess on Oct 30, 2007.
- Delphi Construction managed Route 2 work; the Trust complained of encroachment, collapsed escarpment, and unauthorized fencing on Trust land.
- Morrissey filed an amended 7-count complaint (Counts I–V); Counts III (private nuisance) alleged interference with use of the Trust property.
- The Superior Court dismissed Counts I, II; Count III remained; Counts involving discretionary permit issuance and related claims were deemed barred by sovereign immunity exceptions.
- The Commonwealth sought direct appellate review; issues center on whether private nuisance is within the Massachusetts Tort Claims Act and whether exceptions to immunity apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does private nuisance fall within the Act's scope? | Morrissey argues nuisance is within the Act as a tort against a public employer. | Commonwealth contends nuisance is not included, given common-law immunity and statutory exemptions. | Yes; private nuisance falls under the Act. |
| Is Morrissey's nuisance claim barred by § 10(e) permit-based immunity? | Nuisance claim should proceed despite permit issuance. | § 10(e) bars claims based on issuance of a permit. | Barred by § 10(e). |
| Does discretionary-function immunity § 10(b) apply to the permit issuance? | Discretionary decisions should not shield immunity in nuisance claims. | Permit issuance is a discretionary function, thus immune. | Yes; § 10(b) bars the nuisance claim related to the permit. |
| Should the decision be applied retroactively to include nuisance claims within the Act? | Rule should apply retroactively to align with established Morrissey principle. | Retroactivity not implied; limits application. | Retroactive application approved. |
Key Cases Cited
- Morash & Sons v. Commonwealth, 363 Mass. 612 (1973) (pre-Act nuisance liability; aided rationale for Act expansion)
- Whitney v. Worcester, 373 Mass. 208 (1977) (advocated legislature to abolish immunity; framed impetus for Act)
- Asiala v. Fitchburg, 24 Mass. App. Ct. 13 (1987) (retains common-law nuisance treatment against municipalities; Act scope interpreted)
- Vasys v. Metropolitan Dist. Comm’n, 387 Mass. 51 (1982) (purpose and scope of Act; policy justification)
- Morris v. Massachusetts Maritime Academy, 409 Mass. 179 (1991) (recognizes nuisance/liability framework aligning with Act)
- Tarzia v. Hingham, 35 Mass. App. Ct. 506 (1993) (negligence/Act interaction; nuisance not always shielded)
- Fortier v. Essex, 52 Mass. App. Ct. 263 (2001) (post-Asiala guidance on Act and nuisance)
- Murphy v. Chatham, 41 Mass. App. Ct. 821 (1996) (nuisance/Act interplay; pre-Act precedent cited)