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Nemet v. Boston Water and Sewer Commission9/26/2002
Suffolk.
May 29, 2002.
Negligence, Water pipe, Causation, Expert opinion. Sewer. Municipal Corporations, Sewers, Liability for tort. Evidence, Expert opinion. Massachusetts Tort Claims Act.
Civil action commenced in the Superior Court Department on February 17, 1999.
The case was tried before Linda E. Giles, J., and a motion for judgment notwithstanding the verdict, a new trial, or remittitur was heard by her.
The plaintiffs, Tracy and Christine Nemet, moved into their Dedham home on May 16, 1997. From that time until the commencement of this action in 1999, the Nemets' residence was beset with serial flooding that caused significant damage to their real and personal property. The Nemets contend that the flooding was caused by the defendants' negligent failure to maintain a drain pipe that ran underneath the Nemets' backyard. That pipe was installed in the late 1950's as a joint project of the Dedham department of public works (DPW) and the Boston water and sewer commission (BWSC). While physically located on Dedham land, the pipe was to serve as a "temporary outlet" for Boston water.
After trial by jury, the defendants were each found liable in negligence and each plaintiff was awarded damages on an individual basis. The trial judge thereafter reduced Tracy Nemet's award against DPW to $100,000 by virtue of the applicable limitation on damages contained in the Massachusetts Tort Claims Act (Act), G. L. c. 258, รก2. The judge later denied the defendants' motions for judgment notwithstanding the verdict (JNOV), new trial, and remittitur. On appeal from the denial of these posttrial motions the defendants assert error in three respects: (1) the Nemets failed to prove the essential element of causation; (2) the Nemets failed to introduce competent evidence to prove the element of causation; and (3) the trial judge erred in her application of the statutory cap. We affirm.
1. Causation.
The defendants contend that there are two ways in which the Nemets failed to prove causation: they did not introduce sufficient evidence that the water causing damage to their home in fact came from the defendants' pipe, and they did not introduce any evidence showing that it was the defendants' negligent conduct that caused the flooding. We consider each contention in turn, mindful that, in reviewing the denial of a JNOV motion, we are required to "tak into account all the evidence in its aspect most favorable to the plaintiff to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff ." Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass. App. Ct. 252, 254 (1983).
We first summarize the evidence favorable to the Nemets that was before the jury. On June 13, 1998, the date of the most serious of seven floods, the Nemets' basement filled with six feet of water in less than two hours. In an attempt to determine the source of the water, Tracy Nemet used a boat to paddle out to the backyard where he saw water bubbling from the ground. A week later, after the water receded, he observed two holes in the ground at the location where he had seen bubbling and deduced that the pipe running under his house caused the damage. In addition to Nemet's testimony in this regard, the jury were shown photographs and a videotape of the damaged pipe.
The jury also had before them a 1957 memo from Robert Shea, sewer division engineer for the Boston public works department, setting forth a proposal to install underground a 24-inch pipe on what is now the Nemets' property. According to the memo, t
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