Whether claims of private nuisance against public employers are subject to the limitations of the Mass. Tort Claims Act.

The defendant Mass. Department of Transportation (“MassDOT”) granted permits for certain private parties to modify a state highway next to the plaintiff’s property, as part of a construction project. The plaintiff filed a civil complaint alleging that noise, dust, and vibration from the construction constituted a private nuisance on his property. MassDOT filed a motion to dismiss on the grounds that the claim was barred by the Tort Claims Act.

The judge denied the motion, MassDOT appealed, and the SJC granted direct appellate review.

The Tort Claims Act is a partial waiver of sovereign immunity for tort claims. It 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 same manner and to the same extent as a private individual under like circumstances,” and that “The remedies provided by this chapter shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the public employer.” G.L. c. 258, § 2. The waiver of immunity is subject to certain exceptions, including performance of discretionary functions and issuance of permits. G.L. c. 258, § 10.

The question is whether the Tort Claims Act’s limitations on immunity apply to claims for which immunity was already waived under the common law, prior to its passage. Several Appeals Court decisions indicate that the limitations do not apply, and specifically that the discretionary function exception does not apply to the tort of private nuisance. Those decisions reason that the Tort Claims Act was only intended to waive immunity for claims where immunity still applied, and does not abrogate the common law without an explicit statement of intent. See Murphy v. Chatham, 41 Mass. App. Ct. 821 (1996); Asiala v. Fitchburg, 24 Mass. App. Ct. 13 (1987).

MassDOT argues that Murphy and Asiala are not consistent with the intent of the Tort Claims Act, to unify the varied common law of torts by public employers, and that exclusion of nuisance from the Act elevates form over substance, where proof of private nuisance and negligence is so similar.

MassDOT is likely to succeed. It is difficult to see how any tort claims against public employers can escape the reach of the exclusivity clause of § 2, or any policy rationale for treating claims of private nuisance differently from claims of negligence. MassDOT notes that Justice Gants himself questioned the holding of Asiala while on the Superior Court—perhaps that view was an impetus for accepting review of this case now.