State’s highest court reinstates lawsuit over corrosive water in Gardner
GARDNER — The state’s highest court has reinstated a class
action lawsuit that alleges the city of Gardner failed to fix a water
quality problem that left homes and businesses with damaged copper
heating coils, water heaters and boilers.
The decision sends the case back to Superior Court, which is a win for resident Janice Magliacane, who filed the suit against the city and the companies hired to manage its water supply, namely Suez Water Environmental Services and AECOM Technical Services.
Magliacane has said documents from 2012 indicate 400 coil failures, and the average replacement cost for each coil is $500 to $600.
The suit filed in Worcester Superior Court alleges the water supply was “unreasonably corrosive” and “unreasonably damaged” the hot water heating systems of Gardner residents. Alleging negligence, the suit contends the city “failed to implement its own corrosion control plan and failed to take other actions which the City knew would mitigate coil corrosion.”
Magliacane alleges that the coil corrosion problem could have been avoided if the city added orthophosphate to its water treatment system to inhibit corrosion of the distribution system piping and plumbing, as required by state law.
The city won dismissal of the lawsuit in Superior Court, and Magliacane appealed. The city argued that Maglicane had filed the suit too long after the problem, and that the city was allowed discretion on whether to add orthophosphate to the water.
On its own initiative, the Supreme Judicial Court took the case from the Appeals Court. Sitting in Barnstable, Circuit Judge Ralph D. Gants and Justices Barbara A. Lenk, Frank M. Gaziano, David Lowy, Kimberly S. Budd, Elspeth B. Cypher and Scott L. Kafker began deliberating on the appeal on Oct. 2, and the court issued its ruling Wednesday, Jan. 22.
The Supreme Judicial Court said Superior Court Judge Susan E. Sullivan had erred in ruling that Magliacane hadn’t filed her suit on time. Also, the high court said the question of whether the city made a discretionary policy decision not to add orthophosphate to the water or simply failed to implement its policy to do so is “too fact-intensive” to be decided as part of a motion for dismissal.
The decision sends the case back to Superior Court, which is a win for resident Janice Magliacane, who filed the suit against the city and the companies hired to manage its water supply, namely Suez Water Environmental Services and AECOM Technical Services.
Magliacane has said documents from 2012 indicate 400 coil failures, and the average replacement cost for each coil is $500 to $600.
The suit filed in Worcester Superior Court alleges the water supply was “unreasonably corrosive” and “unreasonably damaged” the hot water heating systems of Gardner residents. Alleging negligence, the suit contends the city “failed to implement its own corrosion control plan and failed to take other actions which the City knew would mitigate coil corrosion.”
Magliacane alleges that the coil corrosion problem could have been avoided if the city added orthophosphate to its water treatment system to inhibit corrosion of the distribution system piping and plumbing, as required by state law.
The city won dismissal of the lawsuit in Superior Court, and Magliacane appealed. The city argued that Maglicane had filed the suit too long after the problem, and that the city was allowed discretion on whether to add orthophosphate to the water.
On its own initiative, the Supreme Judicial Court took the case from the Appeals Court. Sitting in Barnstable, Circuit Judge Ralph D. Gants and Justices Barbara A. Lenk, Frank M. Gaziano, David Lowy, Kimberly S. Budd, Elspeth B. Cypher and Scott L. Kafker began deliberating on the appeal on Oct. 2, and the court issued its ruling Wednesday, Jan. 22.
The Supreme Judicial Court said Superior Court Judge Susan E. Sullivan had erred in ruling that Magliacane hadn’t filed her suit on time. Also, the high court said the question of whether the city made a discretionary policy decision not to add orthophosphate to the water or simply failed to implement its policy to do so is “too fact-intensive” to be decided as part of a motion for dismissal.
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