Gillis v. Town of Uxbridge

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22-P-641 Appeals Court

RICHARD GILLIS & another1 vs. TOWN OF UXBRIDGE; T.T.K. REAL
ESTATE, LLC, third-party defendant.

No. 22-P-641.

Worcester. May 1, 2023. - August 10, 2023.

Present: Green, C.J., Wolohojian, & Sullivan, JJ.

Real Property, Drain, Flowage of water, Nuisance, Water.
Nuisance. Evidence, Expert opinion. Witness, Expert.
Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on
September 4, 2019.

The case was heard by Valerie A. Yarashus, J., on a motion
for summary judgment.

Michael R. Byrne for the defendant.
Henry J. Lane for the plaintiffs.

GREEN, C.J. To plaintiffs Richard and Gayle Gillis, the

problem (and its cause) seemed straightforward: before the town

of Uxbridge (town) made improvements to the road abutting their

1 Gayle Gillis.
2

property, they experienced no flooding on their property, and

after those roadway improvements they experienced significant

flooding on regular occasions, accompanied by resulting erosion.

Claiming nuisance, they brought an action against the town. The

town moved for summary judgment, and a judge of the Superior

Court allowed the motion, on the ground that the plaintiffs'

evidence did not include an expert opinion that the town's

failure to control the flow of surface water onto the

plaintiffs' property was unreasonable. We conclude that the

evidence in the summary judgment record was adequate to present

a genuine issue of fact; therefore, we reverse the judgment and

remand for further proceedings.2

Background. We summarize the undisputed facts appearing in

the summary judgment record. The plaintiffs purchased their

home, on Richardson Street in the town, in 2016. At that time,

a storm drain was in place in Richardson Street directly across

from the plaintiffs' property. The plaintiffs' property is

below the grade of Richardson Street. During the summer of

2018, the town made several improvements to Richardson Street,

including raising the elevation of the street and removing a

2 The judgment entered March 21, 2022, dismissed both the
plaintiffs' complaint and the town's third-party complaint
against T.T.K. Real Estate, LLC. Because we conclude that entry
of summary judgment in favor of the town was not proper, we
reverse the entirety of the judgment including the dismissal of
the third-party complaint.
3

berm located at the top of the plaintiffs' driveway. After the

town made those improvements to Richardson Street, the

plaintiffs' property began to flood during significant rain

events (or in conditions of heavy snow melt). On such

occasions, water pooled around and over the storm drain, until

it crested the camber at the center of Richardson Street and

flowed down onto their driveway and into their property. The

record also includes video recordings of water pooling in their

driveway and front yard following rain events. The plaintiffs

testified at their depositions that no such flooding or pooling

occurred before the improvements the town made to Richardson

Street in 2018.3

The plaintiffs filed their complaint against the town,

claiming private nuisance, in 2019. Following discovery, the

town moved for summary judgment, and a judge of the Superior

Court allowed the motion; this appeal followed.

Discussion. We apply the familiar standards of summary

judgment review:

"[A] party moving for summary judgment in a case in which
the opposing party will have the burden of proof at trial
is entitled to summary judgment if he demonstrates, by
reference to material described in [Mass. R. Civ.
P. 56 (c), as amended, 436 Mass. 1404 (2002)], unmet by
countervailing materials, that the party opposing the

3 In answers to interrogatories, the plaintiffs identified a
neighbor who could corroborate their assertion that such
flooding did not occur prior to the 2018 improvements to
Richardson Street.
4

motion has no reasonable expectation of proving an
essential element of that party's case. To be successful,
a moving party need not submit affirmative evidence to
negate one or more elements of the other party's claim."

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991). As in any motion for summary judgment, we consider the

evidence in the summary judgment record in the light most

favorable to the nonmoving party, drawing all reasonable

inferences in their favor. See Premier Capital, LLC v. KMZ,

Inc., 464 Mass. 467, 474-475 (2013). In the present case, the

town argues that without testimony of an expert the plaintiffs

had no reasonable expectation of proving that the town had

caused the flooding on which the plaintiffs' claim is based. An

independent basis, according to the town and adopted by the

motion judge, is that expert testimony is required to establish

that any actions by the town that cause such flooding are

unreasonable. See Triangle Ctr., Inc. v. Department of Pub.

Works, 386 Mass. 858, 863-865 (1982) (Triangle Center). We

disagree that expert testimony was required in the circumstances

of this case.

To sustain a claim of nuisance, the plaintiffs must show

that the defendant caused "a substantial and unreasonable

interference with the use and enjoyment of the [plaintiffs']

property." Rattigan v. Wile, 445 Mass. 850, 856 (2006), quoting

Doe v. New Bedford Hous. Auth., 417 Mass. 273, 288 (1994). The
5

plaintiffs may meet this burden either by direct evidence or by

rational inference from established facts. See Alholm v.

Wareham, 371 Mass. 621, 626 (1976).

Massachusetts law concerning the rights and obligation of

riparian landowners to regulate surface water drainage changed

significantly with the announcement, in Tucker v. Badoian, 376

Mass. 907, 916-917 (1978) (Kaplan, J., concurring), of the

Supreme Judicial Court's intention to apply the "reasonable use"

doctrine in future cases, rather than the "common enemy" rule

previously in effect. Thereafter, in Triangle Center, 386 Mass.

at 863, the court made clear that it would apply the same rule

to questions concerning the government's right to divert water

onto private property. "The question whether the [town's]

drainage of water onto [the plaintiffs'] land is actionable is

in substance no different from the question whether the [town's]

use constitutes a private nuisance." Id. "Under the reasonable

use doctrine, 'each possessor is legally privileged to make a

reasonable use of his land, even though the flow of surface

waters is altered thereby and causes some harm to others, but

incurs liability when his harmful interference with the flow of

surface waters is unreasonable.'" DeSanctis v. Lynn Water &

Sewer Comm'n, 423 Mass. 112, 116 (1996), quoting Armstrong v.

Francis Corp., 20 N.J. 320, 327 (1956).
6

As we have observed, viewed in the light most favorable to

the plaintiffs, the evidence in the summary judgment record

showed that the plaintiffs' property experienced no flooding

before the town's work elevating the grade of Richardson Street

and removing a berm between the street and the plaintiffs'

adjacent downgradient property, and that the plaintiffs'

property experienced regular and significant flooding after the

town performed that work, particularly at times when a storm

drain installed by the town overflowed. On the basis of that

evidence, and in the absence of evidence pointing to any other

cause,4 no expert testimony is required for a lay jury to infer,

without resort to speculation, that the town's work caused the

flooding to occur. See, e.g., Gliottone v. Ford Motor Co., 95

Mass. App. Ct. 704, 709 (2019) (expert not required to establish

malfunctioning brakes as cause of vehicle's failure to stop);

Petchel v. Collins, 59 Mass. App. Ct. 517, 522-523 (2003), and

cases cited (expert not required to establish causal connection

4 It is, of course, possible that there are other
explanations for the flooding, including unusually heavy rain
events during the period in question, and absent during the
prior period. But the town presented no such evidence. In the
absence of any such evidence in the record, and viewing the
evidence in the record in the light most favorable to the
plaintiffs and drawing all reasonable inferences in their favor,
the evidence is sufficient for the plaintiffs' claim to survive
a motion for summary judgment.
7

between propane tanks in moving truck and damages to plaintiff's

property from explosion).5

The question whether the flooding experienced by the

plaintiffs constitutes a nuisance is somewhat more nuanced. As

we observed earlier, in order for a condition to constitute a

nuisance, the impact on the plaintiffs' property must be

"substantial and unreasonable" (citation omitted). Rattigan,

445 Mass. at 856. Moreover, under the reasonable use doctrine,

"[i]f a landowner fails to control the flow of surface waters

but on a consideration of all relevant factors his actions are

reasonable, an action for nuisance will not lie." DeSanctis,

423 Mass. at 117.

"Reasonableness is a question of fact for the jurors whose
decision is based on consideration of all the relevant
circumstances including the amount of harm caused, the
foreseeability of the harm which results, the purpose or
motive with which the possessor acted, and all other
relevant matter. . . . The jurors also must consider
whether the utility of the possessor's use of his land
outweighs the gravity of the harm which results from his
alteration of the flow of surface waters."

5 Even in the context of medical malpractice actions, where
an expert on causation generally is required, one is not needed
"where a determination of causation lies within 'general human
knowledge and experience'" (citation omitted). Pitts v. Wingate
at Brighton, Inc., 82 Mass. App. Ct. 285, 289 (2012) (expert not
needed for jury to conclude that allowing nursing home patient
to fall on floor caused bone fractures).
8

Id. at 116. The town contends, and the motion judge agreed,

that expert testimony would be necessary to guide determination

of the reasonableness of the town's actions.

"The purpose of expert testimony is to assist the trier of

fact in understanding evidence or determining facts in areas

where scientific, technical, or other specialized knowledge

would be helpful." Commonwealth v. Pytou Heang, 458 Mass. 827,

844 (2011). Though often helpful even when not required,

however, expert testimony "is not necessary in cases in which

lay knowledge enables the jury to find the relevant facts."

Gliottone, 95 Mass. App. Ct. at 708. See Smith v. Ariens Co.,

375 Mass. 620, 625 (1978) (expert testimony of negligent design

not required if "jury can find of their own lay knowledge that

there exists a design defect which exposes users of a product to

unreasonable risks of injury").

The evidence in the summary judgment record, unaided by

explanation or enhancement through expert testimony, would allow

a rational jury to find that the impacts on the plaintiffs'

property are substantial and not de minimis. The regular

pooling and erosion described in the plaintiffs' deposition

testimony, and depicted in the video recordings, are consistent

with impacts supporting a nuisance claim in such cases as, for

example, von Henneberg v. Generazio, 403 Mass. 519, 521 (1988).

See id. (evidence presented that one-third of plaintiff's
9

property flooded during heavy rainfall, endangering plaintiff's

septic system). Whether the reasonableness of the town's

actions causing such impacts may be evaluated without expert

guidance is a closer question.

As a threshold matter, we note that there is no indication

in, for example, Triangle Center, 386 Mass. at 859-860, or von

Henneberg, 403 Mass. at 521, that the evidence before the fact

finders (a Land Court judge in Triangle Center and a jury in von

Henneberg) included expert testimony on the reasonableness of

the offending landowner's actions. We are unaware of any

published appellate opinion in this jurisdiction (and the town

has cited none) holding that expert testimony concerning the

reasonableness of a landowner's actions causing flooding is

categorically required to support a claim of nuisance due to

flooding.6 More importantly, we conclude that, in much the same

way as the evidence in the summary judgment record sufficiently

establishes causation by the town, the same evidence, considered

in the light most favorable to the plaintiffs, drawing all

reasonable inferences in their favor, and in the absence of

countervailing evidence from the town, could support a rational

6 We note that all of the authorities cited by the motion
judge in her memorandum of decision, and by the town in its
brief on appeal, for the proposition that expert testimony was
required in the present case are unpublished, with all but one
being decisions in other Superior Court cases. We are not bound
by those decisions.
10

fact finder in finding that the town's actions were

unreasonable. The storm drain installed by the town plainly was

not performing its intended purpose on those occasions when it

overflowed to a degree that caused water not only to pool but to

overtop the center camber of Richardson Street and continue onto

the plaintiffs' property. The removal of the berm eliminated an

element which, a lay juror could readily infer, could previously

have diverted water flows away from the plaintiffs' property.

Cf. Trenz v. Norwell, 68 Mass. App. Ct. 271, 275-277 (2007)

(reasonableness inquiry required judge to make explicit findings

on plaintiff's largely uncontradicted evidence, supported by

testimony from former landowner and photographs, that flow of

storm water onto property from town's culverts significantly

increased and caused damage after neighbor installed drainage

pipes and allowed berms to fail). While we recognize that

roadway drainage engineering raises potentially complex

questions, and it is possible that an alternative design would

have been either impossible or impracticable for the town to

install, the town has submitted no evidence on the present

summary judgment record to suggest that that is the case here,

and at this stage it is not the plaintiffs' burden to negate

that possibility. Instead the burden is on the town to

establish, by undisputed facts, that the plaintiffs have no
11

reasonable prospect of establishing an essential element of

their case. See Kourouvacilis, 410 Mass. at 716.

We conclude that the summary judgment record was sufficient

to present a triable claim of nuisance. We reverse the judgment

entered March 21, 2022, and remand the case for further

proceedings consistent with this opinion.

So ordered.