Home HERBERT I. KAVET & another, [Note 1] trustees, vs. BOARD OF ASSESSORS OF WATERTOWN.

376 Mass. 927

July 24, 1978

The taxpayer, seeking an abatement of tax on a certain industrial property in Watertown, presented evidence to show that the assessment of that property was out of line with the assessments of residential properties in the town. See Assessors of Weymouth v. Curtis, 375 Mass. 493 , 501 (1978), citing Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366 , 377-378 n.10 (1965). The evidence was in the form of a study of sales transactions of residential properties during a relevant period, and showed a relationship of assessments to fair value averaging about 17.98%. Although the assessors made little if any headway against this evidence, the Appellate Tax Board decided to apply a figure of 26% in respect to the taxpayer's property. On appeal, we remanded the case to the Board for further findings. 374 Mass. 829 (1978). On the remand, the Board, without any enlargement of the record, made additional findings purporting to justify the 26% figure. The case is here on renewed appeal. The Board's result is not shown to be a reasonable inference from the record; indeed the Board concedes that its result is "on the very high side" and was reached rather arbitrarily to prevent a possibility of a windfall to the taxpayer. Acknowledging that the Board's expert knowledge and experience are entitled to respect, we are nevertheless obliged to hold in this particular case that the Board has not guided itself by the record and that the evidence is insufficient as matter of law to support the Board's conclusion. See G. L. c. 58A, Section 13; Beardsley v. Assessors of Foxborough, 369 Mass. 855 , 856 n.3 (1976). In accordance with the evidence of record, we remand the case to the Board with directions to abate the tax by applying the 17.98% figure.

So ordered.


FOOTNOTES

[Note 1] Paul A. DeBoer.

Home LAWRENCE S. O'CONNOR, trustee, vs. E. J. DICARLO & SONS, INC. & another [Note 1] (and a companion case [Note 2]).

376 Mass. 927

July 24, 1978

The plaintiffs in these companion cases, owners of residential properties located, respectively, fifty and five hundred feet from the site of blasting by the corporate defendant, sued for the damages caused to their properties by tremors occasioned by the blasting. They failed in the Superior Court through

Page 928

application of the rule in this Commonwealth, recognized most recently in Clark-Aiken Co. v. Cromwell-Wright Co., 367 Mass. 70 , 83 n.14, 84 (1975), that consequential damages caused by blasting are actionable only on proof of negligence, although there is strict liability for direct damages so caused. Appeal having been lodged in the Appeals Court, we transferred it here. The plaintiffs point out that only a minority of the jurisdictions today deny strict liability for consequential damages caused by blasting, see W. Prosser, Torts Section 78, at 514 (4th ed. 1971), and they urge us on grounds of reason and policy to adopt a rule of strict liability as well for consequential as for direct damages. Any such argument for a change of the law must be addressed to the Legislature, not to this court. General Laws c. 148, Section 20C, inserted by St. 1972, c. 333, provides: "Any person engaged in a blasting operation shall be liable for direct damages to the person or property of another without proof of negligence." The legislative history of the enactment indicates that, in reducing to statutory form the rule of strict liability for direct damages, the Legislature rejected a proposal to extend strict liability to consequential damages caused by blasting.

Judgments affirmed.


FOOTNOTES

[Note 1] E. J. DiCarlo.

[Note 2] Tad A. Ensign & another vs. E. J. DiCarlo & Sons, Inc., & another.