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Aldrich v. Add Inc.6/21/2002
e construction industry." Klein v. Catalano, supra. See Snow v. Harnischfeger Corp., 12 F.3d 1154, 1159 (1st Cir. 1993), cert. denied, 513 U.S. 808 (1994) (statute shields providers of individual expertise, including architects, engineers, and contractors from any liability after six years where they were involved in enumerated activity pertaining to improvement to real property); James Ferrera & Sons v. Samuels, 21 Mass. App. Ct. 170, 173 (1985). "In establishing the six-year limit, the Legislature struck what it considered to be a reasonable balance between the public's right to a remedy and the need to place an outer limit on the tort liability of those involved in construction." Klein v. Catalano, supra at 710.
Here, a certificate of acceptance and occupancy pursuant to which the town of Winthrop granted Dolphin permission to occupy the condominium was issued on August 3, 1987. The designated date of substantial completion of the condominium was August 11, 1987. By September, 1987, the individual units had begun to be occupied. Because the plaintiffs' complaint was filed on July 29, 1993, we conclude that the statute of repose did not expire on their cause of action against the architect for negligent design.
3. Economic loss rule. The plaintiffs contend that the first judge below correctly denied the architect's motion for summary judgment on the ground that the plaintiffs' negligence claim was not barred by the economic loss rule. We agree.
It has been a long-standing rule in this Commonwealth, in accordance with the majority of jurisdictions that have considered this issue, that "purely economic losses are unrecoverable in tort and strict liability actions in the absence of personal injury or property damage." FMR Corp. v. Boston Edison Co., 415 Mass. 393, 395 (1993). See Garweth Corp. v. Boston Edison Co., 415 Mass. 303, 305 (1993); Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 107 (1989). However, where the pecuniary losses sustained by a plaintiff result from physical harm to property proximately caused by a defendant's alleged negligence, such plaintiff has a right to recovery. See Priority Finishing Corp. v. LAL Constr. Co., 40 Mass. App. Ct. 719, 721 (1996) (bailee of damaged goods entitled to maintain cause of action for physical harm to property). Cf. Newlin v. New England Tel. & Tel. Co., 316 Mass. 234, 237 (1944) (plaintiff had right to sue defendant in negligence where alleged poor maintenance of telephone pole caused it to fall, disrupting electrical service to mushroom plant and resulting in destruction of plaintiff's mushroom crop).
The plaintiffs' pleadings and affidavits allege physical property damage sufficient to state a cause of action for negligence against the architect. Cf. McDonough v. Whalen, 365 Mass. 506, 512-513 (1974) (imposing liability on septic system designer where negligence caused physical damage to property in the form of sewage flowing over land). The negligence alleged by the plaintiffs caused physical harm to the common areas of the condominium necessitating the expenditure of substantial sums of money to repair the damage. Accordingly, summary judgment could not enter in the architect's favor on the ground that the plaintiffs' claim was barred by the economic loss rule.
4. Conclusion. The November 19, 1997, order granting summary judgment to the architect on the theory of successorship is vacated. The May 1, 1997, order denying summary judgment to the architect on the basis of the economic loss rule is affirmed. The case is remanded for further proceedings consistent with this opinion.
So ordered.
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