Grand Manor Condominium Association, et al. v. City of Lowell (Lawyers Weekly No. 10-015-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12294   GRAND MANOR CONDOMINIUM ASSOCIATION & others[1]  vs.  CITY OF LOWELL.       Middlesex.     October 5, 2017. – January 19, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Hazardous Materials.  Massachusetts Oil and Hazardous Material Release Prevention Act.  Real Property, Environmental damage.  Limitations, Statute of.  Practice, Civil, Statute of limitations.  Damages, Hazardous waste contamination.       Civil action commenced in the Superior Court Department on October 10, 2012.   The case was tried before Kathe M. Tuttman, J.   The Supreme Judicial Court granted an application for direct appellate review.     Alan B. Rubenstein (Stacie A. Kosinski also present) for the plaintiff. C. Michael Carlson, Assistant City Solicitor (Rachel M. Brown, Assistant City Solicitor, also present) for city of Lowell.     KAFKER, J.  The owners of condominium units at Grand Manor and the Grand Manor Condominium Association (collectively, plaintiffs) filed suit against the city of Lowell (city) on October 10, 2012, for the release of hazardous materials at the Grand Manor condominium site.  The plaintiffs brought claims for response costs under G. L. c. 21E, § 4A, and for damage to the plaintiffs’ property under G. L. c. 21E, § 5 (a) (iii).[2]  A jury found that the plaintiffs’ claim under § 5 (a) (iii) was barred by the applicable statute of limitations, G. L. c. 21E, § 11A (4).  The plaintiffs appealed, and we granted their application for direct appellate review.  On appeal, the plaintiffs argue that (1) the statute of limitations did not begin to run until the plaintiffs knew that the property damage was permanent; and (2) the trial judge erred in instructing the jury that the plaintiffs had the burden of persuasion to show that they filed suit within the statute of limitations.  The city contends that the plaintiffs needed to know only that there was environmental damage and that the defendant was the source of the damage, not that the damage was permanent, for the limitations period to begin to run.  The city also contends that the jury were properly instructed. We conclude that a plaintiff must be on notice that he or she has a claim under § 5 (a) (iii) before that claim may be time barred, and that such notice is separate from a plaintiff’s notice that environmental contamination has occurred.  A plaintiff has notice of a claim under § 5 (a) (iii) once the plaintiff learns whether or not […]

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