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The Tort Claims Act Applies to Municipal “Commercial” Services but Permits Class Actions

Our January newsletter promised an analysis of Magliacane v. City of Gardner, an important decision from the Supreme Judicial Court concerning the Tort Claims Act, M.G.L. c.258, §§1-14. In that case, a homeowner sued after her hot water heating system failed because of corrosive City water. She claimed that the City and its private water supply contractor both knew of the water’s corrosiveness and failed to treat it properly, making both the City and the contractor negligent and responsible for creating a nuisance. Although a lower court judge dismissed those claims, the SJC reinstated them. While this would seem to be simply bad news for municipalities, there is some positive guidance.

The plaintiff claimed that the Tort Claims Act should not apply at all to the claim against the City because, in providing City water, it was acting as the proprietor of a commercial service, not in any governmental capacity. The Court instead reaffirmed that the Act applies to all tort claims against municipalities, including where a City or Town acts in a “proprietary” or “commercial” fashion. The Court noted that past judicial efforts to distinguish between the different types of activities that a municipal government may engage in had resulted in “a crazy quilt of complex and confusing distinctions,” prompting the SJC to reaffirm that the Tort Claims Act did away with all of those distinctions.

This decision confirms that Cities and Towns may continue to provide important services, such as water, without abandoning the important protections provided by the Act—including the requirement of a presentment letter and a statutory cap on damages of $100,000. However, the Court held that the statutory time period to present a tort claim (two years) might be lengthened in cases of fraudulent concealment. In addition, the SJC recognized for the first time that a plaintiff can bring a class action under the Tort Claims Act, so long as such a claim is included in the plaintiff’s presentment to the City or Town. Both rulings open municipalities to potentially greater liability under the Act, particularly where municipal services affect large numbers of users.

Magliacane is already being distinguished at the appellate level to reassert the narrow scope of liability under subsection 10(j). M.G.L. c.258, § 10(j)exempts from liability municipalities alleged to have failed to use due care to prevent or mitigate harm if the municipality did not originally cause the harmful situation. The plaintiff in Klevan v. City of Newton alleged that the City was liable for significant property damage caused when the City’s water main pipe broke and flooded the sewer system, causing flooding and sewage backup in the plaintiff’s home. The Appeals Court reversed the trial court and held that summary judgment for the City was proper. In doing so, it distinguished the potential liability of the City of Gardner to the Magliacane plaintiff because that case alleged that the original act was the delivery of water known to be corrosive. In contrast, the city of Newton was not alleged to have caused the water main pipe to burst and the mere design and placement of the water pipe near the sewer pipes was not the type of original act that caused the flooding.


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