GARY SAWAYER v. TOWN OF BARNSTABLE & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-861

GARY SAWAYER

vs.

TOWN OF BARNSTABLE & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this negligence action, the plaintiff, Gary Sawayer,

claims that a public works project designed and constructed by

Comprehensive Environmental Inc. (CEI), and operated and

maintained by the Town of Barnstable (town), caused flooding

damage to his property. The defendants each moved for summary

judgment on the ground that Sawayer could not prove his claims

without expert testimony. A Superior Court judge allowed the

motions, and Sawayer appeals. We affirm.

Background. The following facts are undisputed. At all

relevant times, Sawayer owned a six-unit rental property located

1 Comprehensive Environmental Inc.
on South Street in Barnstable. In or around 2007, the town

acquired abutting property on Pleasant Street as part of a

downtown improvement project intended "to provide connectivity

between the Hyannis Inner Harbor and the existing recreational,

commercial, and open space located directly on Hyannis Harbor by

way of a harbor walk extension." To create the extension, the

town demolished a residence on the Pleasant Street property and

regraded the area to level the site. Between 2008, when this

project was completed, and July 2017, Sawayer did not experience

any pattern of flooding on his property.

In 2014 the United States Environmental Protection Agency

(EPA) selected the Pleasant Street property as one of two Cape

Cod locations for construction of a stormwater best management

practice (BMP) project. The goal of the BMP project was to

"demonstrate the efficacy of an innovative subsurface gravel

wetland stormwater best management practice (BMP) retrofit for

the control of nitrogen and improve the water quality of the

Hyannis Inner Harbor." The system was designed to "store and

treat stormwater from up to a 0.3-inch rainfall event." During

a rainfall event, stormwater is collected in catch basins,

carried by a twenty-four-inch diameter clay pipe to a

bioretention area, and "eventually discharge[d] to Hyannis Inner

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Harbor." The system is also equipped with a catch basin grate,

"which serves as an emergency overflow."

The EPA hired CEI, along with a second company that is not

a party to this case, to design and construct the BMP project.

Construction began in April 2015 and concluded in May 2015.

Landscaping and installation of monitoring equipment took place

in late 2015 through early 2016. The system was then "allowed

to settle for several months as the plants and vegetation took

root," after which it became operational.

On July 7, 2017, a large storm struck the town and "dropped

3.10 inches of rain" in eight hours, with "[t]he bulk of the

rain, i.e., 2.92 inches," falling between 1 P.M. and 4 P.M.

This "one-day storm . . . accounted for [seventy-nine percent]

of all rainfall in Hyannis for the month of July 2017." During

the storm, excess stormwater from South Street flooded Sawayer's

property, causing damage.

In May 2019 Sawayer filed this suit, asserting separate

negligence claims against the town and CEI. In count I against

the town, Sawayer claimed that the town knew or should have

known that the design of the BMP system would result in flooding

to his property, that the town negligently operated and

maintained the system, and that the town failed to take

appropriate action during the storm. In count II against CEI,

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Sawayer claimed that CEI negligently engineered, designed,

constructed, and maintained the BMP system.

After the close of discovery, the town and CEI each moved

for summary judgment, arguing in part that Sawayer's failure to

designate an expert meant that he would be unable to meet his

burden of proof at trial. The judge allowed the motions on this

basis, and this appeal followed.

Discussion. Our review of a grant of summary judgment is

de novo. See Carroll v. Select Bd. of Norwell, 493 Mass. 178,

182 (2024). "Summary judgment is appropriate where there is no

material issue of fact in dispute and the moving party is

entitled to judgment as a matter of law" (citation omitted).

Id. Where, as here, the nonmoving party will have the burden of

proof at trial, the moving party can prevail on summary judgment

by showing that the nonmoving party "has no reasonable

expectation of proving an essential element of that party's

case" (citations omitted). Dulgarian v. Stone, 420 Mass. 843,

846 (1995). See Flesner v. Technical Communications Corp.,

410 Mass. 805, 809 (1991) (moving party's "burden need not be

met by affirmative evidence negating an essential element of the

plaintiff's case, but may be satisfied by demonstrating that

proof of that element is unlikely to be forthcoming at trial").

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To prove a claim for negligence, a plaintiff must

establish, among other elements, that the defendant breached a

duty owed to the plaintiff and that "there is a greater

probability than not" that the breach caused the plaintiff's

injury. Enrich v. Windmere Corp., 416 Mass. 83, 87 (1993). See

Helfman v. Northeastern Univ., 485 Mass. 308, 315 (2020). If

the plaintiff's claim requires resolution of issues "beyond the

scope of an average person's knowledge," expert testimony is

required for the case to go to a jury. Esturban v.

Massachusetts Bay Transp. Auth., 68 Mass. App. Ct. 911, 911

(2007). See Goffredo v. Mercedes-Benz Truck Co., 402 Mass. 97,

103-104 (1988).

We agree with the judge that Sawayer has no reasonable

expectation of proving his claims at trial without expert

testimony. With respect to his claim against CEI, Sawayer would

have to show that CEI breached a standard of care in designing

and constructing the BMP system, an issue that is beyond the

understanding of ordinary jurors. See LeBlanc v. Logan Hilton

Joint Venture, 463 Mass. 316, 329 (2012) ("Expert testimony is

generally needed to establish [a] professional standard of

care"). In his amended complaint, Sawayer alleged that CEI did

not properly calculate the amount of stormwater that would run

through the BMP system and that the system had a number of

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design defects, such as "an undersized bio-retention field," the

lack of "an automatic mechanism to redivert storm water not

adequately collected in the bio-retention area," and "stop logs"

that "required manual opening to release excess storm water from

the bio-retention field." These allegations raise highly

technical issues that ordinary jurors would not "be expected to

understand . . . without guidance from an expert." Providence &

Worcester R.R. v. Chevron U.S.A. Inc., 416 Mass. 319, 323

(1993). See Esturban, 68 Mass. App. Ct. at 911 ("dimensions

essential to [an escalator's] safe operation is generally beyond

the scope of an average person's knowledge" because "an

escalator is a complex, technical piece of machinery, whose

design and operational requirements are not straightforward");

Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 226-227

(1999) (expert testimony required to prove breach of

professional engineering standards).

Furthermore, expert testimony is needed on the question of

causation. The amended complaint alleges that the cause of the

flooding was the negligent design of the BMP system, the town's

failure to remove grass clippings from the emergency catch basin

grate and "to monitor and check for sediment backup," and the

defendants' failure to "remov[e] the diversion wall stop logs

prior to the storm." Again, jurors would require the assistance

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of an expert to understand these technical issues and determine

whether it is more probable than not that the defendants' acts

or failures to act, alone or in combination, caused the

flooding. See Enrich, 416 Mass. at 87. This is especially so

in light of the undisputed fact that the July 7, 2017 storm was

an extraordinary rain event in both its volume and speed. Given

the sheer amount of rain that fell, "without adequately founded

. . . essential, expert guidance," a jury would have to resort

"to conjecture and surmise" to find that the flooding would not

have occurred but for the defendants' negligence (citation

omitted). Triangle Dress, Inc. v. Bay State Serv., Inc.,

356 Mass. 440, 441-442 (1969). See Doull v. Foster, 487 Mass.

1, 7 (2021) ("An act or an omission is not regarded as a cause

of an event if the particular event would have occurred without

it" [citation omitted]).

Sawayer's reliance on Gillis v. Uxbridge, 103 Mass. App.

Ct. 100 (2023), is misplaced. In Gillis we reversed a grant of

summary judgment for the defendant, holding that the plaintiffs

did not need to present expert testimony to prove that road work

performed by the defendant caused flooding to the plaintiffs'

property. See id. at 103-106. Gillis is distinguishable from

this case for two reasons, however.

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First, Gillis was an action in nuisance, which does not

require proof that the defendant breached a duty owed to the

plaintiff. See id. at 102. As discussed above, breach of a

duty is an element of a negligence claim, and Sawayer cannot

prove it without an expert, at least with respect to his claim

against CEI.

Second, although we concluded in Gillis that an expert was

not needed on the issue of causation, we based that conclusion

on evidence that "the plaintiffs' property experienced no

flooding before" the road work and "regular and significant

flooding" afterward, and on "the absence of evidence pointing to

any other cause." Gillis, 103 Mass. App. Ct. at 103. Here, in

contrast, Sawayer presented no evidence of a pattern of

flooding: it is undisputed that his property experienced no

pattern of flooding from 2016 (when the BMP system became

operational) until the July 7, 2017 storm, and there is no

evidence in the record of any flooding after the storm.

Moreover, the record points to another cause for the flooding --

namely, the extraordinary nature of the storm itself. See id.

at 103 n.4 (noting that had there been "other explanations for

the flooding, including unusually heavy rain events during the

period in question, and absent during the prior period,"

plaintiffs might not have survived summary judgment). Unlike in

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Gillis, therefore, a lay jury could not find, "without resort to

speculation, that the [BMP project] caused the flooding to

occur." Id. at 103.

For these reasons, without testimony from an expert,

Sawayer has no reasonable expectation of proving his claims at

trial. Summary judgment for the defendants was thus properly

granted.2

Judgment affirmed.

By the Court (Meade, Shin &
Tan, JJ.3),

Clerk

Entered: June 24, 2025.

2 Given our conclusion, we need not address the town's
alternative argument that it is immune from suit under
exceptions set out in the Massachusetts Tort Claims Act.

3 The panelists are listed in order of seniority.

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