Updated Jan. 23
In a ruling that could reverberate beyond the specific case at issue, Massachusetts’ top court on Wednesday vacated a lower court’s decision to dismiss a class action lawsuit brought against the city of Gardner by a local homeowner who alleges the city’s corrosive water ruined hundreds of hot water heating systems, including hers.
“I can tell you one thing that I think is important for everyone in the Commonwealth about this decision, and that is that the Supreme Judicial Court held for the first time that here in this case, residents of a city can sue a municipality in a class action,” said Attorney Michelle Blauner, who represented the plaintiff, Gardner resident Janice Magliacane, in the case. "[This is] groundbreaking — and in fact, if you look at Chief Justice Ralph Gants' decision, he said, 'It's much to our surprise this has never been decided by us before.'”
Magliacane's suit filed against the City of Gardner, along with its private water supply contractors, alleged it acted negligently as it supplied corrosive water to city residents and that it knew of issues with the water for over two decades.
Magliacane’s lawsuit said damage from city water has led to her and hundreds of other residents, property owners and businesses having to replace heating coils, hot water heaters, furnaces or boilers.
Blauner said Magliacane spent “a few thousand dollars” replacing heating coils in her home because they were corroded by city water.
The lawsuit further stated that the city and one of its private contractors incorporated in their design of two water treatment plants that were constructed in the late 1990s the addition of a corrosion inhibitor called orthophosphate.
It also claimed the city and the contractor asked for approval from the Massachusetts Department of Environmental Protection to add orthophosphate to the water “but out of neglect sold and supplied the water without doing so.”
Magliacane alleged the city hired multiple outside consultants in later years who all advised it reduce the corrosive quality of its water and that the city engineer and mayor denied any responsibility for damage caused by the water, going so far as to contradict the findings from outside consultants.
“It is our understanding that the city about six months ago started adding orthophosphate to the water. And we believe our lawsuit was what eventually prompted them to actually take the action that they should have taken 20 years ago,” Blauer said.
The city argued that Magliacane did not comply with the Massachusetts Tort Claim Act when she missed a statutory deadline by a month for sending a preliminary letter laying out her allegations against the city.
In its ruling, the SJC denied the city’s timeline argument because Magliacane’s lawsuit says a press release issued by Gardner "fraudulently concealed the cause of her action."
The city also argued to the SJC that it had legal immunity because the corrosive quality of its water was caused by “thousands of years of evolution,” an argument the court rejected.
“Under this rationale, the city would also be immune from liability under the [Massachusetts Tort Claims] act if it had delivered water to its residents that contained unsafe amounts of lead or other contaminants dangerous to human health, provided that those contaminants were present in the water before it was treated and delivered," the decision read. "The flaw in this rationale, of course, is that where a city takes responsibility for the sale and distribution of water to its residents … The city ultimately is responsible for the quality of water that it delivers.”
“This is potentially a significant case that pokes a hole in the shield of immunity doctrines and procedural barriers that all too often protect municipalities from litigation, and represents a victory for plaintiffs seeking relief through class actions in the Commonwealth,” said WGBH News legal analyst and Northeastern University Professor of Law Daniel Medwed.
Blauner said Magliacane’s class action lawsuit is asking for financial compensation for costs residents and others incurred over years repairing their hot water heating systems from the damage caused by the city water.
John J. Davis, attorney for the City of Gardner in the case, did not immediately respond to requests for comment.
The case now goes back to Worcester Superior Court.
