McBarron v. Arena
Dr Bursztajn's opinion as the defense retained forensic neuropsychiatric
expert relied upon Environmental Toxicity: A statute of Limitations Reasonable
Person Defense Supported by a Forensic Psychiatric Examination of the
Plaintiffs (Mass. Sup. Ct. CA 94-01515)
The defendants' motion for summary judgment is allowed because the action
is barred by the statute of limitations. The summary judgment materials
establish that there is no genuine dispute on the facts that establish
the statute of limitations defense.
The plaintiffs' tort causes of action are subject to a three-year statute
of limitations under G.L. c 260, sec 2A. Such a cause of action accrues "when
the plaintiff learns, or reasonably should have learned, that he has
been harmed by the defendant's conduct." (Bowen v. Ely Lilly & Co.,
408 Mass. 204, 206 (1990)). Massachusetts courts "test the accrual
of her [the plaintiff's] cause of action by what a reasonable person
in her position would have known or on inquiry would have discovered
at the various relevant times" (Id. At 210; Doucette v. Harmon,
35 Mass App. Ct. 724 (1994)). For the cause of action to accrue, the
plaintiff need only be on notice that she has been harmed by the defendant's
conduct; knowledge of the full extent of the harm is not required (Gore
v. Daniel O'Connell's Sons, Inc., 17 Mass. App. Ct. 645, 649 (1984)).
The plaintiffs' action was entered on September 22, 1994. The unobjected-to
summary judgment materials, including admissions by the plaintiffs, establish
that a reasonable person in the plaintiffs' position would have known
that he had been harmed by the release of gasoline from the defendants'
property by at least September 22, 1991. No reasonable jury could conclude
otherwise.
In October, 1986, Clean Harbors sent a letter to the plaintiffs asking
permission to perform tests on their property regarding a release of
gasoline into the groundwater in the vicinity. Charles McBarron told
the defendants that he would talk to his lawyer and have his lawyer reply
to Clean Harbors. In May, 1987, Clean Harbors tested the plaintiffs'
property, and the defendants sent the plaintiffs a copy of the test results.
In an August 1988, meeting with the Mrs. Arena and Natalie Lucas of Clean
Harbors, the plaintiffs inquired about the impact of contamination on
the value of their property. On August 18, 1988, Clean Harbors sent the
plaintiffs a letter with the results of tests on groundwater from a monitoring
well on the plaintiffs' property. By early 1990, the plaintiffs were
represented by an attorney regarding possible damages from contamination
originating from the defendants' property. (Def. Ex. 4, 5). By April,
1991, the plaintiffs had made an insurance claim regarding gasoline leaking
to their land from the defendants' property. According to the psychologist's
report attached to the plaintiffs' complaint, Mr. McBarron stated on
about September 9, 1993, that they had been living with the problem of
the gasoline leak for two years.
The plaintiffs have submitted no countervailing materials to overcome
these specific facts regarding notice, knowledge and basis for knowledge.
The plaintiffs' affidavits state that they "did not know" until
June, 1992, that the Arena gasoline leak had spread to their property
or caused them harm. The plaintiffs' chronologies avoid identifying when
they received various information. Their conclusory denials of actual
knowledge are insufficient to overcome the undisputed specific facts
which establish that a reasonable person in their position would have
known by at least September 22, 1991, that he had been harmed by a release
from the defendants' property.
The plaintiffs' continuing tort argument is controlled by Carpenter
v. Texaco, Inc., 419, Mass. 581, 583 (1995). A "continuing
trespass or nuisance must be based on recurring tortious or unlawful
conduct and is not established by the continuation of harm caused
by previous but terminated tortious or unlawful conduct." (Id.)
There is an absence of evidence of tortious or unlawful conduct by
the defendants or of a release from their property occurring or continuing
after September 22, 1991.
Order: The defendants' motion for summary judgment is allowed.
The defendants' motions were argued by Thomas a. Mackie, Esq. of the
firm of Wright, Moehrke & Mackie, P.C. The defendants were represented
by Thomas A. Mackie, Esq. and Elin Swanson Katz, Esq. of Wright, Moehrke & Mackie,
P.C. and Michael John Miguel, Esq. of Boston.
The defense retained Harold J. Bursztajn, M.D. a forensic psychiatrist
and senior faculty member at Harvard Medical School. The results of his
forensic psychiatric examination of the plaintiffs were submitted to
the court.