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.