Preview
Date Filed 3/27/2024 10:25 AM
Superior Court - Franklin
Docket Number 2078CV00019
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
FRANKLIN, ss. CIVIL ACTION NO. 2078CV00019
RICHARD SHERIDAN, PERSONAL
REPRESENTATIVE FOR THE ESTATE
OF JOHN B. AVILA AND AS TRUSTEE,
475 EAST MAIN STREET AVILA
REALTY TRUST,
Plaintiffs
Vv.
TOWN OF ORANGE, BOARD OF
HEALTH AND BUILDING INSPECTOR,
ROBERT LAGARE,
Defendants
DEFENDANTS' SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
NOW COME the defendants and, pursuant to the Court's authorization on March 13, 2024,
respectfully supplement their Motion for Summary Judgment as follows:
In support of their argument as to count 12 of the Complaint, which alleges ultra hazardous
activity, the defendants submit Exhibit 44!, which consists of three photographs taken by plaintiff
Richard Sheridan during the cleanup that began on April 2, 2019. Specifically, the photographs
show the 3-5 inch pieces of stone that were deposited on the west side of the plaintiff's property
by Mallet, a private contractor hired by the Town of Orange, due to the wet conditions on the
ground and they show the equipment used by the private contractor. Because of the wet ground,
' As stated during the hearing, the photographs were inadvertently omitted from defendants’ original summary
judgment motion submissions.
103481459
Date Filed 3/27/2024 10:25 AM
Superior Court - Franklin
Docket Number 2078CV00019
a wrecker from private contractor CO&S and a loader from Mallet got stuck in the mud when they
attempted to remove the four tractor trailers that Mr. Avila had stored on his property which are
also shown in Exhibit 44. The Town of Orange was authorized by the Housing Court to remove
the trailers. SOF 56 and Exhibit 4 at 92:6-101:2; Exhibit 45 at 54:2-55:1. Defendants submit that
the deposit of stone and the use of the equipment do not satisfy the factors necessary to meet the
definition of ultra hazardous activity as set forth in Silva v. Associated Bldg. Wreckers, Inc., 2012
WL 2726940, *1-2 (Mass. App. Ct. July 10, 2012). Moreover, the defendants cannot be liable for
the actions of Mallet and CO&S as they were private contractors. The defendants can only be
liable for the acts of public employees under MGL Chapter 258, Section 1. Rowe v. Town of
Arlington, 28 Mass. App. Ct. 389 (1990). Indeed, there is no evidence that any employee of the
Town of Orange deposited the stone on the ground and there is no evidence that any employee of
the Town of Orange operated any heavy equipment on the plaintiffs’ property. Therefore, to the
extent there was any damage caused to plaintiffs’ property by heavy equipment, which the
defendants deny, it was caused by private contractors for whom the Town of Orange is not liable.
The defendants also incorporate by reference the arguments contained in their opposition
to plaintiff's Motion for Partial Summary Judgment [Docket number 19].
CONCLUSION
For the reasons stated herein, and in defendants! Memorandum of Law in support of their
summary judgment motion and in opposition to plaintiff's partial summary judgment motion,
defendants request that the Court enter summary judgment in their favor on all claims.
103481459
Date Filed 3/27/2024 10:25 AM
Superior Court - Franklin
Docket Number 2078CV00019
The Defendants
By Their Attorneys,
Cp9 abam
Carole Sakowski Lynch, BBO #547718
clynch@morrisonmahoney.com
MORRISON MAHONEY LLP
1500 Main Street, Suite 2400
Post Office Box 15387
Springfield, MA 01115-5387
Phone: 413-737-4373
Fax: 413-739-3125
CERTIFICATE OF SERVICE
I, Carole Sakowski Lynch, attorney for the Defendants, hereby certify that I have this day
served the foregoing document to all parties in this action by serving same via e-mail to:
Elliott M. Loew, BBO# 303200
343 Washington Street, Suite 200
Crete
8. Lyme
Newton, MA 02458
emlpe@comeast.net
Date: March 27, 2024
Carole Sakowski Lynch
103481459
Date Filed 3/27/2024 10:25 AM
Superior Court - Franklin
Docket Number 2078CV00019
EXHIBIT 44
80400607
Date Filed 3/27/2024 10:25 AM
Superior Court - Franklin
Docket Number 2078CV00019
A
os
i
+
at
dee
rs
Ee
=
%-
ane] “ya
2 ad
>? }
4 ‘ a
2 me
ry %
Le
fr ge
*
a eae
eS
Fy
Lat % x
ne
Se ee »y
a
aot
Date Filed 3/27/2024 10:25 AM
Superior Court - Franklin
Docket Number 2078CV000 19
pa
Ace eo
ae 5%,
ee
oy
a ¢ Me,
er ”
ie
pias rs
ys
a
a
we.
‘ vs
oS
igh a ve
gh
Gg
es
hey
fo
Qa
a&
7%, ee
AY
af
ea aah 44
i
BA
a + aS
Peace
ne »
Ae
cad ei
hotte.
a
2 tw A my Ks
*
Phe
we fe
“ak
S
= & ak
~~
Pe
ah ag.
a ee
ie
ni
gs ‘iD
Sy:
A x
\e te
we 2
Gi
:.*
%,
a ~ es
>
to
Date Filed 3/27/2024 10:25 AM
Superior Court - Franklin
Docket Number 2078CV00019 _
x
Pres se
os iM
. a
7 LO
a
i
4
of
<
oe
be ae7 5 a Ne
a
Be
,
as
tay
ag a
Hk . ay -
oe oe
oy
ata
a
oe a
a
ee
Ss aA Ya
5h
ee
©
Le
i
=
he
F, sy ag =
is
mt « 88x
ce Be
me ~~ :* on
&
oe a
ie =
ce
=
ri * a e
he
s
*
Vou
ma
a
a
a ie
we ;
is al der ~
— os
cee
=
a
he ot
x
oats a
Pe gt ea
4
Date Filed 3/27/2024 10:25 AM
Superior Court - Franklin
Docket Number 2078CV00019
EXHIBIT 45
80400607
Date Filed 3/27/2024 10:25 AM
Superior Court - Franklin
Docket Number 2078CV00019
John B. Avila, et al. v. Town of Orange, et al.
Jane Peirce 12/9/2021
COMMONWEALTH OF MASSACHUSETTS
Franklin, ss. Superior Court
C.A. No. 2078 CV 00019
a a ee a en en
JOHN B. AVILA, Individually and as
TRUSTEE, 475 East Main Street Avila
Realty Trust,
Plaintiffs
v.
TOWN OF ORANGE, BOARD OF HEALTH and
BUILDING INSPECTOR, ROBERT LEGARE,
Defendants
ote Sa eee ete fet te So
30 (b) (6) DEPOSITION OF THE TOWN OF ORANGE
THROUGH ITS DESIGNEE JANE PEIRCE
December 9, 2021
Elliott M. Loew, P.C.
343 Washington Street, Suite 200
Newton, Massachusetts
HOR KA Re
Court Reporter: Amie D. Rumbo
EYAL COURT REPORTING, INC - 1800-322-3925
www.deposerve.com
Date Filed 3/27/2024 10:25 AM
Superior Court - Franklin
Docket Number 2078CV00019
John B. Avila, et al. v. Town of Grange, et al.
Jane Peirce 12/9/2021
54
A Not to my knowledge.
Q On the days that you were there, do
you recall a company putting down stone so that
their trucks would be able to access the back of
Mr. Avila's property because it was wet?
A Yes.
Q What did you observe in connection
with that question? And it may just be that. I
don't know. What did you observe?
10 A Mr. Avila had four tractor-trailers
11 stored at the back of his property that were
12 subject to the order and we needed to remove
13 them. Between East Main Street running along the
14 western side of his house would be the access to
15 pull those things out. It was very wet ground
16 there for a couple of reasons. There's kind of a
17 brook. It's kind of a wetland. And Mr. Avila has
18 a sump pump that's discharging from his cellar
19 onto the ground right on that road, So it wasn't
20 possible to get the equipment into the area to
pull the tractor-trailers out without putting down
22 some gravel. So gravel was ordered and brought in
23 by the Joseph Mallet company and put down in order
24 to create an access road to the trailers, the
EYAL COURT REPORTING, INC - 1800-322-3925
www.deposerve.com
Date Filed 3/27/2024 10:25 AM
Superior Court - Franklin
Docket Number 2078CV00019
John B. Avila, et al. v. Town of Orange, et al.
Jane Peirce 12/9/2021
55
tractor-trailers.
Q Did Mr. Avila object to having
stone put down on his property?
A Not to my knowledge.
Q Do you know if the stone was ever
removed?
A. It was not removed.
Q You said that pretty confidently.
How do you know it was not removed?
10 A Because the access road is there
11 now with several vehicles parked on it.
12 Q. Besides having already told me more
13 than once that if Mr. Avila had stored the items
14 that were removed somewhere on his property, can
15 you be more specific by what you mean that if he
16 had stored them? You did mention the overhang,
17 you mentioned the garage, and you mentioned there
18 was space available in these areas. Can you tell
19 me if you think that all of the items that were
20 removed could have been stored, to use the word
21 you used, in one of those places or somewhere else
22 on his property so that the town wouldn't have to
23 remove them?
24 A I can't speculate about that.
EYAL COURT REPORTING, INC - 1800-322-3925
www.deposerve.com
Preview
Date Filed 3/27/2024 10:25 AM Superior Court - Franklin Docket Number 2078CV00019 COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT FRANKLIN, ss. CIVIL ACTION NO. 2078CV00019 RICHARD SHERIDAN, PERSONAL REPRESENTATIVE FOR THE ESTATE OF JOHN B. AVILA AND AS TRUSTEE, 475 EAST MAIN STREET AVILA REALTY TRUST, Plaintiffs Vv. TOWN OF ORANGE, BOARD OF HEALTH AND BUILDING INSPECTOR, ROBERT LAGARE, Defendants DEFENDANTS' SUPPLEMENTAL MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT NOW COME the defendants and, pursuant to the Court's authorization on March 13, 2024, respectfully supplement their Motion for Summary Judgment as follows: In support of their argument as to count 12 of the Complaint, which alleges ultra hazardous activity, the defendants submit Exhibit 44!, which consists of three photographs taken by plaintiff Richard Sheridan during the cleanup that began on April 2, 2019. Specifically, the photographs show the 3-5 inch pieces of stone that were deposited on the west side of the plaintiff's property by Mallet, a private contractor hired by the Town of Orange, due to the wet conditions on the ground and they show the equipment used by the private contractor. Because of the wet ground, ' As stated during the hearing, the photographs were inadvertently omitted from defendants’ original summary judgment motion submissions. 103481459 Date Filed 3/27/2024 10:25 AM Superior Court - Franklin Docket Number 2078CV00019 a wrecker from private contractor CO&S and a loader from Mallet got stuck in the mud when they attempted to remove the four tractor trailers that Mr. Avila had stored on his property which are also shown in Exhibit 44. The Town of Orange was authorized by the Housing Court to remove the trailers. SOF 56 and Exhibit 4 at 92:6-101:2; Exhibit 45 at 54:2-55:1. Defendants submit that the deposit of stone and the use of the equipment do not satisfy the factors necessary to meet the definition of ultra hazardous activity as set forth in Silva v. Associated Bldg. Wreckers, Inc., 2012 WL 2726940, *1-2 (Mass. App. Ct. July 10, 2012). Moreover, the defendants cannot be liable for the actions of Mallet and CO&S as they were private contractors. The defendants can only be liable for the acts of public employees under MGL Chapter 258, Section 1. Rowe v. Town of Arlington, 28 Mass. App. Ct. 389 (1990). Indeed, there is no evidence that any employee of the Town of Orange deposited the stone on the ground and there is no evidence that any employee of the Town of Orange operated any heavy equipment on the plaintiffs’ property. Therefore, to the extent there was any damage caused to plaintiffs’ property by heavy equipment, which the defendants deny, it was caused by private contractors for whom the Town of Orange is not liable. The defendants also incorporate by reference the arguments contained in their opposition to plaintiff's Motion for Partial Summary Judgment [Docket number 19]. CONCLUSION For the reasons stated herein, and in defendants! Memorandum of Law in support of their summary judgment motion and in opposition to plaintiff's partial summary judgment motion, defendants request that the Court enter summary judgment in their favor on all claims. 103481459 Date Filed 3/27/2024 10:25 AM Superior Court - Franklin Docket Number 2078CV00019 The Defendants By Their Attorneys, Cp9 abam Carole Sakowski Lynch, BBO #547718 clynch@morrisonmahoney.com MORRISON MAHONEY LLP 1500 Main Street, Suite 2400 Post Office Box 15387 Springfield, MA 01115-5387 Phone: 413-737-4373 Fax: 413-739-3125 CERTIFICATE OF SERVICE I, Carole Sakowski Lynch, attorney for the Defendants, hereby certify that I have this day served the foregoing document to all parties in this action by serving same via e-mail to: Elliott M. Loew, BBO# 303200 343 Washington Street, Suite 200 Crete 8. Lyme Newton, MA 02458 emlpe@comeast.net Date: March 27, 2024 Carole Sakowski Lynch 103481459 Date Filed 3/27/2024 10:25 AM Superior Court - Franklin Docket Number 2078CV00019 EXHIBIT 44 80400607 Date Filed 3/27/2024 10:25 AM Superior Court - Franklin Docket Number 2078CV00019 A os i + at dee rs Ee = %- ane] “ya 2 ad >? } 4 ‘ a 2 me ry % Le fr ge * a eae eS Fy Lat % x ne Se ee »y a aot Date Filed 3/27/2024 10:25 AM Superior Court - Franklin Docket Number 2078CV000 19 pa Ace eo ae 5%, ee oy a ¢ Me, er ” ie pias rs ys a a we. ‘ vs oS igh a ve gh Gg es hey fo Qa a& 7%, ee AY af ea aah 44 i BA a + aS Peace ne » Ae cad ei hotte. a 2 tw A my Ks * Phe we fe “ak S = & ak ~~ Pe ah ag. a ee ie ni gs ‘iD Sy: A x \e te we 2 Gi :.* %, a ~ es > to Date Filed 3/27/2024 10:25 AM Superior Court - Franklin Docket Number 2078CV00019 _ x Pres se os iM . a 7 LO a i 4 of < oe be ae7 5 a Ne a Be , as tay ag a Hk . ay - oe oe oy ata a oe a a ee Ss aA Ya 5h ee © Le i = he F, sy ag = is mt « 88x ce Be me ~~ :* on & oe a ie = ce = ri * a e he s * Vou ma a a a ie we ; is al der ~ — os cee = a he ot x oats a Pe gt ea 4 Date Filed 3/27/2024 10:25 AM Superior Court - Franklin Docket Number 2078CV00019 EXHIBIT 45 80400607 Date Filed 3/27/2024 10:25 AM Superior Court - Franklin Docket Number 2078CV00019 John B. Avila, et al. v. Town of Orange, et al. Jane Peirce 12/9/2021 COMMONWEALTH OF MASSACHUSETTS Franklin, ss. Superior Court C.A. No. 2078 CV 00019 a a ee a en en JOHN B. AVILA, Individually and as TRUSTEE, 475 East Main Street Avila Realty Trust, Plaintiffs v. TOWN OF ORANGE, BOARD OF HEALTH and BUILDING INSPECTOR, ROBERT LEGARE, Defendants ote Sa eee ete fet te So 30 (b) (6) DEPOSITION OF THE TOWN OF ORANGE THROUGH ITS DESIGNEE JANE PEIRCE December 9, 2021 Elliott M. Loew, P.C. 343 Washington Street, Suite 200 Newton, Massachusetts HOR KA Re Court Reporter: Amie D. Rumbo EYAL COURT REPORTING, INC - 1800-322-3925 www.deposerve.com Date Filed 3/27/2024 10:25 AM Superior Court - Franklin Docket Number 2078CV00019 John B. Avila, et al. v. Town of Grange, et al. Jane Peirce 12/9/2021 54 A Not to my knowledge. Q On the days that you were there, do you recall a company putting down stone so that their trucks would be able to access the back of Mr. Avila's property because it was wet? A Yes. Q What did you observe in connection with that question? And it may just be that. I don't know. What did you observe? 10 A Mr. Avila had four tractor-trailers 11 stored at the back of his property that were 12 subject to the order and we needed to remove 13 them. Between East Main Street running along the 14 western side of his house would be the access to 15 pull those things out. It was very wet ground 16 there for a couple of reasons. There's kind of a 17 brook. It's kind of a wetland. And Mr. Avila has 18 a sump pump that's discharging from his cellar 19 onto the ground right on that road, So it wasn't 20 possible to get the equipment into the area to pull the tractor-trailers out without putting down 22 some gravel. So gravel was ordered and brought in 23 by the Joseph Mallet company and put down in order 24 to create an access road to the trailers, the EYAL COURT REPORTING, INC - 1800-322-3925 www.deposerve.com Date Filed 3/27/2024 10:25 AM Superior Court - Franklin Docket Number 2078CV00019 John B. Avila, et al. v. Town of Orange, et al. Jane Peirce 12/9/2021 55 tractor-trailers. Q Did Mr. Avila object to having stone put down on his property? A Not to my knowledge. Q Do you know if the stone was ever removed? A. It was not removed. Q You said that pretty confidently. How do you know it was not removed? 10 A Because the access road is there 11 now with several vehicles parked on it. 12 Q. Besides having already told me more 13 than once that if Mr. Avila had stored the items 14 that were removed somewhere on his property, can 15 you be more specific by what you mean that if he 16 had stored them? You did mention the overhang, 17 you mentioned the garage, and you mentioned there 18 was space available in these areas. Can you tell 19 me if you think that all of the items that were 20 removed could have been stored, to use the word 21 you used, in one of those places or somewhere else 22 on his property so that the town wouldn't have to 23 remove them? 24 A I can't speculate about that. EYAL COURT REPORTING, INC - 1800-322-3925 www.deposerve.com