Newsletter
Expert Testimony Nice-to-Have, Not Must-Have in Insurance Claims
December 20, 2023
Authors
Joel E. Antwi
Associate, Washington, D.C.
jantwi@goulstonstorrs.com+1 617 574 0585
Mariana Korsunsky
Director, Boston
mkorsunsky@goulstonstorrs.com+1 617 574 3584
Kevin P. O'Flaherty
Of Counsel, Boston
koflaherty@goulstonstorrs.com+1 617 574 6413
Gary M. Ronan
Director, Boston
gronan@goulstonstorrs.com+1 617 574 3593Related Expertise
Richard Gillis & Gayle Gillis vs. Town of Uxbridge, No. 22-P-641 (Mass. App. Ct. August 10, 2023).
The Massachusetts Appeals Court recently decided a case further elucidating a plaintiff’s burden to establish a claim for private nuisance – specifically, what a plaintiff must show to demonstrate that the defendant’s interference with the use and enjoyment of the plaintiff’s property is unreasonable.
In 2016, plaintiffs Richard Gillis and Gayle Gillis (the “Gillis”) purchased a home in the town of Uxbridge, Massachusetts (the “Town”). The Gillis’ property was below the grade level of the street abutting it. Approximately two years later, in the summer of 2018, the Town undertook several improvements which included raising the elevation of the street and removing a berm which redirected water on the street away from the Gillis’ driveway. After these changes, the Gillis’ property began to flood.
The next year, the Gillis’ sued the Town, claiming private nuisance. Discovery included (i) depositions of the Gillis’ during which they testified that they did not experience flooding prior to the summer of 2018, but began to experience regular and significant flooding after the Town’s improvements, and (ii) the introduction of video recordings depicting flooding on the Gillis’ property. The Town moved for summary judgment arguing that the Gillis’ failed to present critical expert testimony as to whether or not the Town’s failure to control the flow of surface water onto their property was unreasonable. The trial court granted summary judgment for the Town and the Gillis’ appealed.
The Appeals Court held that to prevail on their claim for private nuisance, the Gillis’ needed to demonstrate that the Town caused “a substantial and unreasonable interference with the use and enjoyment of [their] property.” Examining the record in a light most favorable to the Gillis’, the Appeals Court concluded that, contrary to the Town’s position, expert testimony was not needed to establish a causal connection between the Town’s 2018 improvements, and the flooding experienced by the Gillis.’ The Court reasoned that evidence that the Gillis’ property began to flood only after the Town’s completion of the improvements, coupled with the lack of evidence establishing another cause, “could support rational fact finder in finding that the town’s actions were unreasonable.”
Gillis should serve as a reminder to municipalities, property owners, and developers, that a private nuisance claim can lie, even without expert testimony, if lay persons can draw a reasonable inference of causation and unreasonableness.
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