Shapiro, et al. v. City of Worcester (Lawyers Weekly No. 10-014-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11118 SJC-11119 WILLIAM SHAPIRO & another[1] vs. CITY OF WORCESTER. HENRY GREENBERG vs. CITY OF WORCESTER. Worcester. October 4, 2012. ‑ January 30, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Massachusetts Tort Claims Act. Governmental Immunity. Municipal Corporations, Governmental immunity, Sewers, Nuisance. Waiver. Nuisance. Practice, Civil, Interlocutory appeal, Execution, Presentment of claim under Massachusetts Tort Claims Act, Retroactivity of judicial holding. Trespass. Negligence, Municipality, Governmental immunity. Civil action commenced in the Superior Court Department on April 3, 2008. Motions to dismiss and for summary judgment were heard by Dennis J. Curran, J. Civil action commenced in the Superior Court Department on April 3, 2008. A motion for summary judgment was heard by John S. McCann, J., and a motion for reconsideration was also heard by him. The Supreme Judicial Court on its own initiative transferred the cases from the Appeals Court. Wendy L. Quinn, Assistant City Solicitor, for city of Worcester. John R. Maciolek for William Shapiro & others. CORDY, J. In this consolidated appeal, we review two cases, one brought by William and Sherry Shapiro and the other by Henry Greenberg (collectively, plaintiffs), against the defendant, the city of Worcester (city). In their respective actions, which each commenced in the Superior Court in 2008, the plaintiffs allege that the city is liable to them for nuisance, continuing nuisance, and continuing trespass, arising from the discharge of effluent from the city’s sewer system onto their properties. In response, the city contends that the plaintiffs’ nuisance claims are barred because they failed to satisfy the presentment requirement of the Massachusetts Torts Claims Act (Act), G. L. c. 258, § 4, which, the city contends, applies retroactively in light of our decision in Morrissey v. New England Deaconess Ass’n — Abundant Life Communities, Inc., 458 Mass. 580 (2010) (Morrissey). Additionally, the city argues that the Shapiros’ nuisance claims are independently barred by provisions of the Act that provide sovereign immunity to municipalities in instances involving either discretionary decision-making, G. L. c. 258, § 10 (b); or the exercise of a public duty, id. at § 10 (j). Finally, the city argues that the Shapiros’ trespass claim fails as a matter of law because the city did not commit an affirmative voluntary act to cause the sewage discharge. The Shapiros’ […]