Morais v. City of Lowell
Morais v. City of Lowell
Opinion of the Court
The plaintiffs, owners of a six-unit apartment building in Lowell (city), filed a complaint in the Superior Court seeking damages from the city under the Massachusetts Tort Claims Act, G. L. c. 258. We agree with the plaintiffs’ contention on appeal that the city’s motion to dismiss their complaint, for failure to state a claim upon which relief can be granted, filed pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), was wrongly allowed.
In their complaint, the plaintiffs allege that on the morning of
In reviewing the disposition of a motion to dismiss under rule 12(b)(6), we take the allegations in the complaint and inferences drawn therefrom in a plaintiff’s favor as true, and consider the complaint sufficient “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 47 (1998), quoting from Conley v. Gibson, 355 U.S. 41, 45-46 (1957). We, therefore, examine whether the plaintiffs’ allegation that the entry into their building was wrongful and negligent, constitutes a claim under G. L. c. 258.
General Laws c. 258, § 2, as amended by St. 1984, c. 279, § 1, provides that: “Public employers shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in
The issue, therefore, is whether the plaintiffs’ complaint may be read as alleging violation of a special duty owed to them. The essence of their complaint is that they were entitled to prior notice by the city before it ordered their building vacated. We first determine whether the city had a duty to provide such notice. The authority of a building inspector to determine whether a building is unsafe is subject to “statutory safeguards against its unreasonable exercise, designed to satisfy the requirements of due process.” DiMaggio v. Mystic Bldg. Wrecking Co., 340 Mass. 686, 692 (1960) (examining whether owner was afforded due notice of an order by Boston building commissioner to demolish his building pursuant to a municipal building code then in effect, similar to G. L. c. 143). General Laws c. 143, § 6, prescribes the duties of a local inspector upon being informed that a building is dangerous, and G. L. c. 139, §§ 1 & 3, provide for actions by a city to abate building-related nuisances.
On the pleadings, this case is not one in which a plaintiff
Accepting, as we must, the plaintiffs’ allegation that they had no prior notice of the city’s impending action, and because none of the statutory procedural requirements appears to have been followed, we conclude that the plaintiffs have stated a
It was error to allow the city’s motion to dismiss the plaintiffs’ complaint for failure to state a claim. The order allowing the motion is vacated, and the complaint is to be reinstated for further proceedings in the Superior Court.
So ordered.
After this appeal was filed, the parties stipulated to the dismissal of the action against the building inspector, leaving only the plaintiffs’ claims against the city.
No issue of presentment, G. L. c. 258, § 4, was raised below or has been argued in this appeal. The plaintiffs’ complaint contains a general averment that it was “filed in accordance with the provisions of Chapter 258.” Accordingly, that issue is not before us. See Vasys v. Metropolitan Dist. Commn., 387 Mass. 51, 55-56 & n.5 (1982).
The April 19, 1994, letter of the building inspector cites two grounds in apparent justification of the entry. The first, by declaring the building “open and abandoned and dangerous and unsafe,” appears to be based on G. L. c. 143, § 6, and the second is stated as G. L. c. 139, § 20.
General Laws, c. 143, § 6, as amended through St. 1957, c. 214, § 1, states that the local inspector, “immediately upon being informed by report or otherwise that a building ... is dangerous to life or limb or that any building ... is unused, uninhabited or abandoned, and open to the weather, shall inspect the same; and he shall forthwith in writing notify the owner ... to
General Laws, c. 139, § 20, as amended through St. 1985, c. 421, § 4, provides that one who knowingly permits premises owned by him to be used for certain illegal purposes, “or after due notice of any such use omits to take all reasonable measures to eject therefrom the persons occupying the same as soon as it can lawfully be done, shall be punished . . . .”
Both statutes provide, after additional notice and process, for removal of such buildings by a city or town where the building is adjudged a nuisance, see G. L. c. 139, §§ 1 & 3, or where the owner fails to remove a structure or to make it safe, see G. L. c. 143, §§ 7, 8, & 9.
To the extent the plaintiffs’ complaint sounds in negligence for failure to provide notice, the city’s observation that G. L. c. 258, § 10(c), excludes intentional torts as the basis for governmental liability is inapposite. Also, the city’s conclusory references to the exceptions to liability set forth in §§ 10(a), (b), (/), & (/'), do not constitute adequate appellate argument. In any event, the city’s duty to give notice was prescribed by statute, and does not implicate the discretionary function exception described in § 10(b). Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.