KeywordsMassachusetts Tort Claims Act. Water. Municipal Corporations, Liability for tort, Water supply, Governmental immunity. Governmental Immunity. Negligence, Governmental immunity. Practice, Civil, Presentment of claim under Massachusetts Tort Claims Act, Class action

In this decision interpreting the Massachusetts Tort Claims Act, Justice Gantz vacated order allowing the city’s motion to dismiss and remanded the case to Superior Court.  An amicus brief was filed in the case by MMLA member Cynthia L. Amara, on behalf of MMLA.  Justice Gantz summarized the case as follows:

     Plaintiff Janice Magliacane is a homeowner in the city of Gardner (city) whose hot water heating system failed prematurely three times due to corrosion of its copper heating coils.  She replaced the coils on the first two occasions but, after the third malfunction, switched out her tankless hot water system for a water heater to avoid additional replacement costs.  She was not alone; as alleged, the hot water heating systems of hundreds of other homeowners in the city also failed because of corroded copper heating coils.

      Magliacane commenced this putative class action suit in the Superior Court alleging that the city and its private water supply contractors, AECOM Technical Services, Inc. (AECOM), and Suez Water Environmental Services, Inc. (Suez) (collectively, defendants), were negligent and grossly negligent and created a nuisance in knowingly supplying corrosive water to the city’s residents.  The city moved to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and for entry of separate and final judgment pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974).  After a hearing, the judge allowed the city’s motion to dismiss, concluding that Magliacane failed to make timely presentment as required by the Tort Claims Act (act), G. L. c. 258, § 4.[3]  Magliacane filed a notice of appeal, and we transferred the appeal to this court on our own motion.

      Magliacane contends that her class action claims fall outside the scope of the act because a city historically has been exempt from sovereign immunity when it acts in a “proprietary” or “commercial” capacity by selling water to its residents.  She also argues that, even if her claims are covered by the act, she made timely presentment because the city fraudulently concealed her cause of action, thereby tolling the act’s presentment requirement until she had actual knowledge of her claims.

      We conclude that, apart from the exceptions set forth in the act, the act covers all claims brought against a city, even those arising from the city’s sale of water to its residents.  We also conclude that the judge erred in dismissing Magliacane’s complaint for lack of timely presentment, where her complaint made specific allegations that, if true, would support factual findings (1) that the city fraudulently concealed her cause of action and (2) that she did not have actual knowledge of the city’s responsibility for the corrosion of her heating coils until less than two years before the date of presentment.  Because we look to the same record as the motion judge and because allowance of a motion to dismiss is a question of law, we also reach the arguments that the judge did not address and conclude (1) that Magliacane adequately gave notice of her nuisance claim in her presentment; (2) that she made proper presentment on behalf of the putative class; and (3) that the allegations in her complaint suffice to show that the city is not entitled to dismissal of the complaint under the statutory exceptions to liability under the act that it invoked.[4]  We therefore vacate the judge’s allowance of the city’s motion to dismiss and remand this case for further proceedings consistent with this opinion.[5]

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