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CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10237
Experience:  Civil litigation attorney for individuals and businesses.
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How do i sue a town, inspecting my property correctly,

Customer Question

how do i sue a town
JA: Because laws vary from place to place, can you tell me what state this is in?
Customer: for not inspecting my property correctly
JA: Have you talked to a lawyer yet?
Customer: massachusetts
JA: Anything else you think the lawyer should know?
Customer: no
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Lawyer about your situation and then connect you two.
Submitted: 4 months ago.
Category: Legal
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Please explain what is going on, because in general a municipality is exempt from suit by state law under their statutory immunity.
Customer: replied 4 months ago.
I live in Rowley, MA and had a retaining wall built in 2010 with a septic system and intricate design. Now we are trying to sell the house and it looks as if a water pipe was not put where it was supposed to be and still it was stamped as built byinspector and the as built done by engineer was different than proposed plans.
Also we previously sued contractor for the retaining wall crumbling but it was thrown out on a technicality, we missed a discovery deadline. However, we never sued the engineer and the town for stamping as-built, as well as issuing certificate of compliance prior to seeing plans for retaining wall and what it was made out of/ designed. So my question is, where are their statutes and case law that could point me to A. How do I sue a town B. What is statute of limitations C. What is the threshiold for suing a town, Gross Negligence? Recklessness/
Also does Res Judicata apply when the actors were not named in original dismissed suit? Caselaw on that as well
Also, statute of limitations, we could not have known about as built regarding water pipe and not complying with plan until our RE Agent pulled them for purposes of selling our house, so is it tolled as we could not have discovered problem. IN fact we wrote to town in 2010 about issues with drainige and wall and they stated that they saw no issue and it was normal settling. They stated nothing about non compliance, either they did not discover or they were coveirng up, leading to my underlying issue which is can i sue town for conspiracy and how could i do that, what would underlying tort be?
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
Unfortunately, just because the town inspected it, MA has statutory immunity for the inspectors and the fact that it was stamped by the inspector does not make them grossly negligent to overcome that statutory immunity.
Furthermore, the statute of limitations is the same as suing the contractor, just because you are including the city in the claim does not give you a different statute of limitations and if the statute of limitations of 3 years for property damage in MA (since you had no contract with the city for them to breach) has expired then I am afraid you cannot sue even if you could prove somehow the inspector was grossly negligent.
MA Rule 19 on compulsory joinder also applies here, since you did not join the inspector's office at the time of the suit and it is based on the same set of facts and circumstances, even if the SOL had not expired, you could not sue them again now. MA Rule 19 says, "(a) Persons to Be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant."
Proving a conspiracy means you need witnesses to prove the negligent contractor acted together with the city/town and its inspector, without such witnesses, you would not be able to make a case based only on the circumstantial evidence you mentioned above I am afraid.
Customer: replied 4 months ago.
Can you point me to a case where an inspector was sued for gross negligence? If the defendant was not known at time of suit or the issue was different is there a way we can survive summary judgment? Can you point me to some cases where the plaintiff did overcome summary judgment in a case like that, where a defendant or a cause of action was not known or could not have been known?
Also, I do have the contractor and building inspector conspiring to build on the property to remedy the situation early in settlement talks and the inspector allowing contractor to build on town land.Also, the engineer, they drew up plans stating that the system was built according to plan when it wasn't. We didn't know about this water pipe issue and also we had no cause to sue them at the time as the issue was a negligent construction of a retaining wall, not a water pipe that was not built according to plans .
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
I am sorry, but I have had another obligation arise and must leave, so I will open this up to other experts and this way someone can step in to try to assist you and not cause you to wait longer as I will not be able to devote the time necessary for the extensive research you are requiring. Thank you for your patience and another expert will be with you if they can fulfill your request.
Expert:  CalAttorney2 replied 4 months ago.

Dear Customer,

Thank you for using our forum. My name is***** am another expert and hope to assist you today.

The prior expert's information is correct, and in an effort to build on that - and what you posted subsequently:

  • Case law research is a little beyond what we can offer here - this is a "general information forum" and performing case law search requires us (as individual experts - we are not employees) paying for subscriptions to fairly expensive research sites, there are a couple of attorneys that do this as part of our forum's "Premium Services" for an additional cost - you can learn more about those services here: http://ww2.justanswer.com/help, but if you want a free research site that you can use to do this yourself, I would recommend this one: https://scholar.google.com/scholar_courts (it isn't as sophisticated as the ones you will find in a law firm or at your local law library, but it can help give you a good idea).
  • Regarding the specifics of your case. The original expert's position is still going to be correct - the state (including the city inspector's office) is not going to be liable to you for this action (there may be some exception in there that a local attorney can find, but based only on what you are posting - I don't see it).
  • Also regarding your matter - if you have identified new defendants (additional contractors or design professionals) through the course of discovery and litigation, you may want to amend your complaint to name these additional defendants. You will need to do so by motion (so make a motion to the court asking to add another defendant(s) based on new information - be prepared to show how adding defendants at a late date in litigation is going to be in the best interests of the party and the court (adding them now may delay trial slightly but overall it will prevent future litigation and ensure that there is a continuity in outcome).
  • Your primary cause of action is against the contractors and design professionals. Your expert witnesses/litigation consultants should be advising you as to the specifics of their liability and be prepared to testify as to the same. (This is the critical element of these claims - failure to have good experts is what is going to most compromise your claim).
Customer: replied 4 months ago.
The case against the contractor was dismissed because we missed a discovery deadline, that was about faulty construction of the retaining wall. We never listed the engineer/ architect on the complaint because the town insisted that nothing was wrong with the structure of the wall when we brought it to them. (In writing nonetheless they stated that they had come to the house in 2010 and inspected again and that there was no problem)We never looked into whether or not the plans were faulty because we had no reason to think they were until recently when our RE agent grabbed the plans, as we're trying to sell house, and said that a totally separate issue from the retaining wall, a water pipe that wasn't placed in a correct spot and an as built that was submitted by the engineer, was false.
Expert:  CalAttorney2 replied 4 months ago.

Just so I better understand your matter:

  • Your construction occurred back in 2010
  • You had a claim against your builder, but that was dismissed on procedural grounds.
  • Are you filing an entirely new lawsuit now?
Customer: replied 4 months ago.
Unless I don't have to.
Yes. I would be filing a lawsuit that the architects plans were faulty based on a water pipe that wasn't placed correctly and an as built that was drawn up that did not correspond with the actual spec plans
Expert:  CalAttorney2 replied 4 months ago.

Have you consulted an attorney about this new lawsuit (the statute of limitations in Mass. is 3 years for these claims - but there may be something specific about your case that would allow you to avoid this deadline). The fact that you already filed one lawsuit makes your case very tricky in this regard (a savvy defense attorney is very easily going to argue you already had notice of the claim - so this is going to start the time line - remember, notice of the claim is all that is required, not notice as to the exact issues, defendant, etc.).

There is also a related 6 year "statute of repose" that gives the final cutoff date for filing any claim against the building trades a 2010 construction end date is going to be very close to or past this.

The City is not going to be liable at this point (although you can certainly bring their inspectors and their records into the case for testimony and evidence respectively).

Customer: replied 4 months ago.
my question would be you keep saying "Claim", what factors make up what is and is not a similar "claim".Say for example I hire a contractor to do work on my house in July of 2010. I want him to reshingle the house, paint it and install a new septic. He subs out painters and he subs out people to build my septic, I sue the GC on the septic, saying that the design is sending water back into my house. We lose on some technicality.Then four years later, the paint that his sub put on begins to peel and turn my house a strange color, I didn't discover it and couldn't have for years but are they still part of the same claim because they were part of the same job? What decides if a claim is the same claim.
Expert:  CalAttorney2 replied 4 months ago.

Dear Customer,

Here is why this is important with regard to the statute of repose - the 6 year limit (http://www.melicklaw.com/?t=40&an=8527)

A "claim" very well may be made later for different work or different parts of a single contract, but I can tell you from experience that your claims should be brought in the same suit - when you sue a contractor, you need to retain a good expert witness/consultant to review all of the work and identify problems with it. Your bar to prove that you didn't have notice of defects is going to be much higher. (This also is going to rely on you getting a settlement that doesn't exempt any future claims).

Customer: replied 4 months ago.
my "bar"? What do you mean?
Expert:  CalAttorney2 replied 4 months ago.

It is hard to prove that you were unaware of a defect when you had prior litigation in which the quality of construction/engineering/etc. was the primary or only issue.

Customer: replied 4 months ago.
even if it didn't move forward through discovery because it was dismissed early on?
Expert:  CalAttorney2 replied 4 months ago.

I am not able to provide you a formal opinion of your specific case - this is why I asked if you had spoken to a local attorney about your case (and why I would have concerns about the matter).

Just because there are concerns does not mean that there is no possibility of a claim or a case, but it should be addressed (and if you review the issue early on and make plans to deal with it in that way - it can help prevent or minimize the amount of money lost in litigation unnecessarily).