Shapiro v. City of Worcester
982 N.E.2d 516
Mass.2013Background
- Consolidated action by William and Sherry Shapiro and Henry Greenberg against the city of Worcester for nuisance, continuing nuisance, and continuing trespass due to raw sewage discharges from the city's sewer system onto their properties.
- City moved to dismiss or limit claims on the ground that nuisance claims were barred by the presentment requirement of G. L. c. 258, § 4, and that certain immunity exemptions apply.
- Morrissey v. New England Deaconess Ass’n — Abundant Life Communities, Inc. held nuisance claims fall within the Act and established retroactive application of its substantive provisions.
- Prior to the agreement, MDC and the city studied sewer capacity; in 1996 MDC forecasted backups without improvements; backups occurred on 4/3/2005, 10/15/2006, and 4/16/2007.
- In May 2000, the city and MDC entered an agreement allowing MDC to use the city sewer in exchange for MDC-funded improvements worth about $2.875 billion to be completed by July 1, 2005.
- As of June 2006, MDC had not begun designing the improvements; the 2007 report attributed overflows to heavy rainfall infiltrating an inadequately upgraded system.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactive application of presentment requirement | Morrissey requires retroactive application of presentment. | Presentment should apply retroactively to all § 4 claims. | Presentment not retroactively applied; applied prospectively to claims accruing before Morrissey. |
| Immunity under § 10(b) applicability | City immunity applies; § 10(b) bars claims. | Discretionary planning/policy functions immune under § 10(b). | § 10(b) does not apply; city not immune for planning/implementation failures. |
| Public duty rule under § 10(f) applicability | Public duty rule may shield city from liability. | Not raised below; argued as potential basis for immunity. | Court discusses § 10(f); declines to rely on it for immunity; not dispositive here. |
Key Cases Cited
- Morrissey v. New England Deaconess Ass’n — Abundant Life Communities, Inc., 458 Mass. 580 (Mass. (2010)) (establishes nuisance within Act and retroactivity for substantive provisions)
- Kent v. Commonwealth, 437 Mass. 312 (Mass. 2002) (present execution doctrine; immunity requires genuine tailoring of acts and conditions)
- Brum v. Dartmouth, 428 Mass. 684 (Mass. 1999) (original cause requires affirmative act creating the condition)
- Asiala v. Fitchburg, 24 Mass. App. Ct. 13 (Mass. App. Ct. 1987) (historical view excluding nuisance from Act (overruled by Morrissey))
- Vasys v. Metropolitan Dist. Comm’n, 387 Mass. 51 (Mass. 1982) (purpose of Act and presentment mechanism)
- Morash & Sons v. Commonwealth, 363 Mass. 612 (Mass. 1973) (common-law nuisance liability for government projects)
- Richardson v. Dai-ley, 424 Mass. 258 (Mass. 1997) (presentment as prerequisite; notice to executive officers)