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Brower v. Burns

Superior Court of Massachusetts, Middlesex

December 28, 2017

Cathryn BROWER
Kelly BURNS[1] et al.[2]


          William C. Barrett, Justice


         This case arises out of a series of water infiltration events that occurred at the Highland Condominium (the " Condominium") at 393 Broadway, in Cambridge, Massachusetts, over a span of several years starting in 1998. In the Verified Complaint, the plaintiff, Cathryn Brower (" Brower"), asserted claims for negligence, trespass/continuing trespass, and nuisance/continuing nuisance against the defendants, Kelly Burns (" Burns") and the Board of Trustees for the 393 Broadway Condominium Trust (the " Board"). She alleged an additional claim for breach of contract solely against the Board. This matter is now before the court on the Board’s requests for entry of summary judgment. For the reasons explained herein, the court ALLOWS summary judgment in favor of the Board.


         I. Procedural History

         The Board’s path toward summary judgment has not been without incident. Brower filed the Verified Complaint on October 22, 2015. On June 15, 2016, the Board filed the Motion for Summary Judgment (the " First Motion for Summary Judgment"). Brower and Burns each opposed this motion, seeking to continue the summary judgment proceedings, pursuant to Mass.R.Civ.P. 56(f). The court (Curran, J.) extended the discovery deadline and, delayed a hearing on the First Motion for Summary Judgment until the close of discovery.

         Discovery closed in April 2017 and, on April 18, 2017, almost a year after it had been filed, the court (Barrett, J.) held a hearing on the First Motion for Summary Judgment. At this hearing, the court expressed concern that the record did not reflect the evidence and information learned during discovery. Ultimately, the court took no action on the First Motion for Summary Judgment; instead, the court granted the Board leave to file a second motion (the " Second Motion for Summary Judgment"), which was to include a record of the evidence developed during discovery.

         On June 12, 2017, the Board filed the Second Motion for Summary Judgment, which Brower opposed. Therein, the Board argued neither the master deed nor the Condominium’s bylaws created a duty upon the Board to maintain or repair Burns’ private unit. And that, even if such a duty existed, the Board discharged that duty by repairing the source of every alleged leak. In addition, the Board argued more generally that there was no evidence to support Brower’s claims against it for nuisance, trespass, or breach of contract.

         On June 20, 2017, the court (Barrett, J.) held a hearing on the Second Motion for Summary Judgment. At that hearing, the court ordered the Board to supplement the Second Motion for Summary Judgment, in order to address two issues: (1) the impact of the statute of limitations on Brower’s claims; and (2) the report produced by Brower’s expert, Richard Zannini (" Zannini"). In September 2017, the Board filed the Supplemental Motion for Summary Judgment, addressing the issues raised by the court.[3]

         II. Factual Background

         A. The Parties and the Condominium

         The Condominium is a four-story building originally built in 1931 with thirty-two units, plus one additional unit located in the basement, which is reserved for the resident superintendent. Brower resides in Unit 1, which she has owned since September 29, 1989. In 2008, Brower renovated Unit 1, installing: new plumbing; new electrical wiring; new ceilings; new walls, where necessary; new windows, including new wood frames, storm windows, and screens; new custom-built cabinets in the kitchen; a new bathroom; new closets; and a new Murphy-type bed and wall unit in the main living area.

         Burns owns Unit 9, which is located on the Condominium’s second floor directly above Unit 1. She has lived there since May 1997. In addition to being a unit owner, since May 18, 2012, Burns has served as a member of the Board. The kitchen of Unit 9 is directly above the bathroom and back hallway of Unit 1 and, the bathroom of Unit 9 is directly above the walk-in closet and main living area of Unit 1.

         B. Water Infiltration Events

         According to Brower, between 1998 and the filing of the Verified Complaint in this action, there were ten instances of water infiltrating Unit 1 from Unit 9: May 7, 1998, July 16, 2002, August 16, 2004, January 6, 2012, November 1, 2012, February 28, 2013, April 11, 2015, April 25, 2015, May 7, 2015, and June 5, 2015.[4] Seven of these episodes occurred on or after January 6, 2012:

January 6, 2012: Brower discovered water dripping down from the ceiling in her walk-in closet. The Condominium’s then-property manager, Messias Dias (" Dias"), inspected Unit 9 and discovered the bathtub overflow drain was loose, which permitted water to escape the bathtub enclosure, pour down around the drain (instead of through the pipe), infiltrate the ceiling of Unit 1, and flow into Brower’s walk-in closet and door frame.
November 1, 2012: Brower discovered water damage in the walls and ceilings of her hallway, bathroom, kitchen, and main living area, including finding rusty water half-filling the light fixture in her hallway ceiling. Dias inspected Unit 9 to determine the source. Burns told Dias that she forgot to shut the water off in her kitchen sink when she left her unit, which caused her kitchen sink to overflow. Dias concluded the water, which overflowed Burns’ kitchen sink, built-up on her kitchen floor, seeped through cracks in her floor to the subflooring, and, from there, travelled down into the ceiling and walls of Unit 1.
February 28, 2013: Brower discovered water pouring down from the ceiling in her walk-in closet. Dias, Sam Davis (" Davis"), the Condominium’s superintendent, and Thomas DiBartolomeo (" DiBartolomeo"), a plumber the Board hired, investigated. Upon inspecting Unit 9, they determined water was leaking from the u-shaped tail pipe connected to Burns’ bathroom sink, which had corroded and separated from the sink. Instead of draining out of Unit 9 and into the sewer, water from Burns’ bathroom sink flooded the sink cabinet, flowed down through cracks in the bathroom floor and into the subflooring, eventually penetrating the ceiling and walls of the walk-in closet and the Murphy bed unit located in Unit 1.
April 11, 2015: Brower found water in the Condominium’s basement, in and outside the storage area set aside for Unit 20. Davis and Robert Senus (" Senus"), a consultant who worked for the Board, could not determine where the water had come from, although they inspected the heating pipes, the water pipes, and other possible sources.
April 25, 2015: Senus observed a significant amount of water pouring down from the ceiling of the Condominium’s basement into the storage area for Unit 28, running over to the storage area for Unit 20. Davis inspected Unit 1; he found indications that water had infiltrated the ceiling, floor, and baseboards of Brower’s walk-in closet. Water had also penetrated the wall behind the Murphy bed. The water stains on the ceiling in Unit 1 corresponded with the perimeter of Burns’ bathroom, running along the cracks in her floor. Davis attempted to inspect Unit 9, but Burns refused to permit him access to her unit. Subsequent tests conducted by various members of the Board, Davis, and Senus confirmed that Burns’ bathroom floor was the origin of the pathway of the water that caused the damage to Unit 1 and the Condominium’s basement.
May 7, 2015: Senus discovered water dripping in the Condominium’s basement. Davis inspected Unit 1 and found recent water damage to the ceilings, walls, baseboards, and floors. Davis and Senus also inspected Unit 9. They found Burns bailing water out of her bathtub into her toilet; there was water on the floor surrounding the toilet. DiBartolomeo inspected Burns’ bathtub and found that the drain was almost completely clogged.
June 5, 2015: Brower and Davis observed a pool of water on the floor of the walk-in closet in Unit 1. At the same time, they could hear Burns upstairs, bailing water out her bathtub and dumping it into her toilet or bathroom sink. That same afternoon, a Roto-Rooter technician from ASAP Drain inspected the bathtub and plumbing fixtures in Unit 9. The technician confirmed that the main drain valve in the bathtub was completely clogged. Testing also indicated that the overflow drain valve was leaking. The technician ...

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