Sheehan v. Weaver
Sheehan v. Weaver
WILLIAM SHEEHAN
Plaintiff
- v.-
No.08-CV-0135
Defendant
DAVID B. WEAVER
The plaintiff tenant in this case fell through a porch guardrail onto the asphalt pavement below and was seriously injured. He brought suit against the owner landlord, alleging
Gen. L. c. 186 14, strict liability for violation of the State Building Code under Gen.L. c.143 51, and unfair or deceptive acts
or practices under Gen. L. c. 93A 2 (a) and 9.
Code claim. The jury found no liability on the habi tabili ty, quiet
enj oyment, and Chapter 93A claims. Damages were assessed in the amount of $145,364 on the negligence claim, taking into account the plaintiff's own negligence, and in the amount of $242,273 on the State Building Code claim. The jury specially found that the two damage assessments were duplicative, such that there would be only one recovery on the higher award.
'7
747 fn.9, 847 N.E.2d 315, 322 fn.9 (2006) ("A defendant in a
products liability case in this Commonwealth may be found to have
breached its warranty of merchantability without having been negligent, but the reverse is not true. A defendant cannot be
of merchantability. ")
Although there is yet no definitive appellate court ruling on the issue, see, Scott v. Garfield, 454 Mass. 790, 796 fn.8, 912
N.E.2d 1000, 1006 fn.8 (2009), I am of the opinion that, apart from the rent abatement context where a finding of fault on the part of
2009) i Mateo v. Durbin, N.E. Hsg.Ct. No. 08-CV-0133 (June 3, 2010) i Cole v. Day, N.E.Hsg.Ct. No. 09-SP-1987 (July 6, 2011) i Snitkovsky v. Anderson, N. E. Hsg. Ct. No. 11-CV-3649 (December 27, 2011), all
McGurn v. Russell, N.E.Hsg.Ct. No. 08-CV-0242 (November 22, 2010) i
following my ruling in the Griffith case. But see, Ruiz v. Pelson Realty Trust, Essex Superior Ct. No. CIV-A-99-1969, 2001 WL 810347 (Agnes, J., April 9, 2001) i Gifford v. Sears, Middlesex Superior Ct. No. 04-165A, 2005 WL 2373847 (Connolly, J., August 12, 2005).
Sarqent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973), the
373 Mass. 658, 661 fn.5, 370 N.E.2d 413, 415 fn.5 (1977) i Crowell
'" ,
,
v. McCaffrey, 377 Mass. 443, 446-448,386 N.E.2d 1256,1259-1260 (1979). Contrast, Crowell v. McCaffrey, 377 Mass. 443, 386 N.E.2d 1256 (1979), which recognized a separate cause of action for
personal injuries in habitability in addition to common law negligence, with Sarqent v. Ross, 113 N.H. 388, 308 A.2d 528
(1973), which recognized habitability as part of a single, unitary cause of action sounding in negligence.
In Crowell the Court upheld a cause of action for personal injuries caused by breach of warranty of habitability in the
ordinary residential tenancy at will. In Berman ~ Sons, Inc. v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979) the Court upheld
liability for rent abatement for breach of warranty of habitability
despite the landlord's lack of fault and reasonable efforts to repair. It is clear that for rent abatement under the warranty of
habitability the landlord's liability is strict liability and that
Berman ~ Sons, Inc. v. Jefferson, 379 Mass. 196, 200, 396 N.E.2d
of
Reqard to Tenant Safety, 63 Mass.L.Rev. 61 (1978). The Supreme Judicial Court stated, in Younq v. Garwicki, 380 Mass. 162, 163
relationship between the law of warranty of habitability and the law of negligence is settled, special verdicts or special questions are advisable.
fn.1, 402 N.E.2d 1045, 1046 fn.1 (1980), that, until the
personal inj ury and a contract action for the same. The duty of
difference between the elements of proof in a tort action for the defendant is the same whether the action is in tort or in
contract"i Younq v. Garwicki, 380 Mass. 162,169,402 N.E.2d 1045, 1049 (1980), quoting with approval Sarqent v. Ross, 113 N.H. 388, 397-398, 308 A.2d 528, 534 (1973), which established a "reasonable
N.E.2d 1256, 1262 (1979), II in the context of implied warranty suggesting "a negligence standard" and a
duty of "reasonable care
premises liability, but stating "We do not pass on the question whether such a finding is essential to liability. II And see, Sargent v. Ross, 113 N.H. 388, 396-399, 308 A.2d 528, 533-535
the case of Kline v. Burns, 111 N.H. 87, 276 A.2d 248 (1971) which
N.J.Super. 48,301 A.2d 463 (1973), aff'd 63 N.J. 577,311 A.2d 1 (1973) (per curiam). See generally, Mark S. Dennison, II Cause of
Recovery, under Strict Liability in Tort, for Injury or Damage Caused by Defects in Building or Land, II 25 ALR4 351
(1983) .
I note also that the New York cases recognize habitability only as a cause of action for rent abatement with a contract-based measure of damages (perhaps also with a "garden-variety" emotional
App. Div. 2d 576, 712 N. Y. S. 2d 672 (3rd Dept 2000) i Carpenter v. Smith, 191 App.Div.2d 1036, 595 N.Y.S.2d 710 (4th Dept 1993) i Curry v. Davis, 241 App.Div.2d 924, 661 N.Y.S.2d 359 (4th Dept 1997) i
Joyner v. Durant, 277 App.Div.2d 1014,716 N.Y.S.2d 221 (4th Dept
2000) . Thus, New York law differs from the Massachusetts law
established by the Supreme Judicial Court in Crowell v. McCaffrey,
L
!,
Therefore, notwithstanding the inconsistency between the negligence verdict and the habitability and quiet enjoyment
verdicts, the defendant is not entitled to a new trial or other relief on that ground.
(2) Weiqht and sufficiency of the evidence
I disagree with the defendant's contention that the jury's verdict was against the weight and sufficiency of the evidence, both on the issue of defect and on the issue of causation. There was overwhelming evidence that the connection of the guardrail to its post gave way because it was defective. The plaintiff's expert
identified eighteen separate violations and failures to comply with
the State Building Code, 780 C.M.R. (6th edition). The most
significant violations were: 1014. 9.1, which requires adequate guardrail strength capable of supporting a live load of 100 pounds and a concentrated load of 300 pounds i 1028. 2, which requires
general maintenance and owner responsibility. The other violations were marginally relevant, material only in that they showed a lack
of general care and maintenance of the guardrail, landing, stairway, and structure. The evidence also showed violations of the State Sanitary Code, 105 C.M.R.: 410.500 (structural
(structural defects), and 410. 750 (0) (4) (protective railing) .
supervening cause. Upon renewal of the obj ection, I again rule that the defendant was not entitled to the requested charge as there was no evidence upon which the jury could find that the
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plaintiff unreasonably misused the porch guardrail (by leaning or falling against it, while in an intoxicated state) after he knew that it was defective and might not withstand 100 pounds of live
A much closer question is presented by the defendant' s argument regarding the applicability of the strict liability
provision of the State Building Code Law, Gen.L. c.143 51.
At the threshold, there is the question whether the strict liability provision, as judicially interpreted, applies only to fire safety law violations and to persons using stairways and egresses for the purpose of escape from fire. As discussed in the
Superior Court case of Stuart v. Merloni, 17 Mass.L.Rptr. 453, 2004
WL557187 (Gants, J., March 22, 2004), the statute was so
limited
prior to 1972 when the law was amended to provide for the State
Building Code. At that time the II fleeing a fire II fire safety law
limi tation was removed from the statute, and the statute now
with the provisions of this chapter and the state building code relative thereto, and such person shall be liable to any person
provisions. II
In the case of McAllister v. Boston Housinq Authority, 429 Mass. 300, 304 fn.5, 708 N.E.2d 95, 99 fn.5 (1999), however, the Supreme Judicial Court, in dictum, in a footnote, in a snow and ice slip and fall case, overlooked the 1972 amendments and relied on pre-1972 precedent to restate the previous "fleeing a fire" fire safety law rule. After that, in the case of Fox v. The Little
People's School, Inc., 54
Faced with what it described as a "practical dilemma" for a trial court, the Superior Court judge in Merloni, noting that both the McAllister dictum and the Fox holding were mistaken, ordered that, II solely for prudential reasons, II consideration of the
of its mistaken reliance on a case that interpreted an earlier version of the statute, or because it is dictum, the Fox case
the Fox case also erred in finding the Supreme Judicial Court' s footnote in the McAllister case to be controlling. The Merloni court then went on to say that it is probable that the McAllister
footnote and the Fox ruling, which are II contrary to the plain language of the statute, II would likely not survive on appeal.
I certainly agree that neither the McAllister footnote nor the Fox ruling would survive on appeal. Indeed, I believe that there is virtually no likelihood that either the Appeals Court or the Supreme Judicial Court will choose to follow the McAllister dictum or the Fox holding in future cases.
Mass.App. 612, 615 fn.6, 779 N.E.2d 645, 648 fn.6 (2002), the
Appeals Court mentioned its decision in the Fox case, but did not rely upon its holding that a violation of the building code does not result in strict liability except in cases of injury to someone fleeing from a fire. It is significant also that in Banushi v. Dorfman, 438 Mass. 242, 780 N.E.2d 20 (2002), the Supreme Judicial Court did not follow (or mention) either the McAllister dictum or the Fox holding.
In the "unusual circumstances of this case" (as described by the Merloni court), I do not believe that either the McAllister
dictum or the Fox holding amount to II controlling authori ty" that is
blindly follow that which appears to be, but which actually is not,
controlling, binding precedent.
I therefore proceed to the merits.
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appellate court error, the task of a trial judge is to apply the law as the appellate courts now would likely apply it, and not to
of any of said provisions. No criminal prosecution for such violation shall be begun until the lapse of thirty days after such party in control has been notified in wri ting by a local inspector as to what changes are
necessary to meet the requirements of such provisions, or if such changes shall have been made in accordance with
such notice. Notice to one member of a firm or to the clerk or treasurer of a corporation or to the person in
or sent by mail. II
Medeiros, 369 Mass. 836, 840-841, 343 N.E.2d 859, 862 (1976), where
violation of a safety statute, ordinance or regulation is not conclusive on the issue of civil liability, it is evidence of negligence on the part of a violator as to all consequences that
the statute, ordinance or regulation was intended to prevent. II The
the Court stated, II It is also the general rule that while the
II Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 853, 401 N.E.2d 360, 365 (1980) i Corcoran v. ~ Kresqe Co., 313 Mass. 299, 303,
construction is consistent with the statutory purpose.
Still, in some circumstances where there is serious risk of serious harm the Legislature has provided for strict liability.
Gen.L. c..111 197A(e), 197D(a), 199(a). Such laws are valid and
enforceable. See, Bencosme v. Kokoras, 507 N.E.2d 748, 400 Mass. 40
See, e. g., the Childhood Lead Poisoning Prevention and Control Law,
(1977) .
""
It is well settled that the statute in this case, the State Building Code Law, Gen.L. c.143 51, provides for strict liability. See, Repucci v. Exchanqe Realty Co., 321 Mass. 571, 74 N.E.2d 14
(1947) i Osorno v. Simone, 56 Mass.App. 612, 779 N.E.2d 645 (2002) i Banushi v. Dorfman, 438 Mass. 242, 780 N.E.2d 20 (2002).
The Legislature may have so provided because, although
violations of the State Sanitary Code can cause considerable harm and hardship, see e.g., Simon v. Solomon, 385 Mass. 91, 431 N.E.2d 556 (1982) (repeated floods of water and sewage) i Wolfberq v.
Hunter, 385 Mass. 390, 432 N.E.2d 467 (1982) (rodents and rubbish) i
functioning heating system, missing and defective windows, screens,
Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991) (no
and ceiling fixtures, walls and ceilings with cracks and holes, hazardous flooring, rodents and roaches) i Cruz Manaqement ~ Inc. v. Wideman, 417 Mass. 771, 633 N.E.2d 384 (1994) (no heat, rodents and roaches) i Cruz Manaqement ~ Inc. v. Thomas, 417 Mass. 782, 633 N.E.2d 390 (1994) (rats, mice and roaches, inadequate heat and hot water, unsanitary common areas , defective stove , defective smoke detector, windows, and wiring), violations of the State Building Code are more prone to causing serious injury and even
Code. Gen.L. c.143 94 and the State Building Code, 780 C.M.R. 118. 4, provide for a fine of up to one thousand dollars, or imprisonment up to one year, or both, for each violationi Gen.L. c.143 51 and the State Building Code, 780 C.M.R. 118.4, provide that a criminal prosecution cannot begin until 30 days after written notice of violation. Gen.L. c.111 127A and the State
Sanitary Code, 105 C.M.R. 400.700, on the other hand, provide for a fine of not less than ten nor more than five hundred dollars for housing violations i there is no provision for imprisonment, or for a 30 day grace period prior to prosecution.
Without question, the State Building Code Law, Gen.L. c.143 51, provides for strict liability. The question is whether the structure in this case constitutes a "building" within the meaning of the statute such that strict liability applies. But the scope and meaning of the term "building" in the statute is unclear and unsettled.i/ I review the case law for guidance.
c,
injury, the Supreme Judicial Court held that, from the specific types of structures mentioned in section 51 (iiplace of assembly,
Mass.App. 693, 685 N.E.2d 1195 (1997), the meaning of the word
"building" in the statute is the same in criminal and civil cases i it seems illogical that the owner of a private home is entitled to
less advanCe notice of steps that should be taken to correct a building code violation than is the owner of a commercial or
industrial building i other sections (9 and 100) of chapter 143 are not easily reconciled.
The statute does not distinguish between structures or parts
II shall be liable to any person inj ured for all damages caused by a
workshop
violation of any of said provisions. II (i talics supplied). The statute also makes no express distinction between large and small
buildings, but with the possible exception of the word II
"
all of the enumerated words preceding the word "building" connote that the size of the structure is an important factor.
i ()
that although the word "building" in section 51 has a literal meaning that is substantially more extensive than the words preceding it, the words as a whole identify a class that is
Supreme Judicial Court, although reversing criminal convictions for violations of the State Building Code, stated that the reasoning of the Santos opinion is sound, and held that a single family house
did not qualify as a "building" under section 51, such that the notice requirement of section 51 did not apply.
In Glidden v. Maglio, 430 Mass. 694, 698-699, 722 N.E.2d 971, 975 (2000) the Supreme Judicial Court did not reach the question
within the meaning of section 51 (the motion judge had ruled that it was not), holding instead that roof repair workers, who were injured when "pump-jack scaffolding" collapsed, failed to establish
The Fox case, discussed above, was decided in April 2002. After that, the Appeals Court decided the Osorno case, and the Supreme Judicial Court decided the Banushi case, both in December
of that year.
where painters fell from scaffolding that did not comport with certain OSHA regulations required by the State Building Code, the
Appeals Court held that the " relatively small condominium" (three of the thirteen condominium units were rented and ten were owneroccupied) differed markedly from the commercial venture typified by a large apartment building or even a smaller two- or three-family tenement building, and the strict liability provision of section 51 did not apply.
fall into two groups. Structures such as a "place of assembly, theatre, special hall, public hall" are clearly "public" places. But II commercial II structures such as a II factory, workshop, manufacturing establishment" do not easily fit this description.
I ~
In the Osorno case the Appeals Court noted, at 618 fn.8, 779
N.E.2d at 650 fn.8, liThe rental of dwelling units in rooming houses, large apartment buildings or smaller multiple family tenements is the type of commercial enterprise involving the public, that could in a proper case invoke the strict liability
provisions of the statute i whether buildings used for such purpose are included within the ambit of section 51 as 'buildings' for the
purpose of attaching strict liability for State Building Code violations, or whether their primarily residential use would
exclude them, has not been reached."
the Supreme Judicial Court held, based on its past cases and the canon of ej usdem generis, that an owner-occupied two- family home (in which the owner, who owned no other rental property at the time
There are three reported trial court decisions after Banushi. In Stuart v. Merloni, 17 Mass.L.Rptr. 453, 2004 WL 557187 (Gants, J., March 22, 2004), discussed above, a guest of a tenant of an apartment unit struck her head on a doorway header that was alleged to be defective, unsafe, and in violation of the State Building
In Hristoforidis v. Fisher, 17 Mass. L. Rptr. 574, 2004 WL 1109626 (Fecteau, J., April 9, 2004), a worker who was performing exterior repairs without benefit of a building permit fell from
no causal connection shown between the accident and failure to obtain a permit, and (unlike Glidden where it was not decided whether the term "building" in section 51 includes an owneroccupied three-family house) ruled that a non-owner-occupied three-
history.
~ 1,~
WL 2373847 (Connolly, J., August 12, 2005), mentioned above, a tenant's guest fell down a stairway that had no railings and no lighting. The structure involved was an owner-occupied two-family dwelling with a one-bedroom rented apartment located above the garage which was a separate structure. There, the Superior Court
Fox case, where the plaintiff fell on a school building's step, landing and stairs), two are criminal cases, and five are personal injury cases, all involving construction workers. Of the five civil cases, three involve temporary ladders or scaffolding, one involves worksi te debris, and the other worksi te safety issues. None involve tenants or guests of residential premises or defects
of permanent housing structures . Five of the seven appellate cases establish that section 51 does not apply to a single family house,
Of the three reported trial court cases, all are personal inj ury cases, one involving a construction worker and temporary scaffolding, where it was ruled section 51 did not apply, and two
Despi te the forty-year history of the statute, neither the plain language of the law nor the sparse case law interpreting it gives much guidance.
Somewhat helpful, although certainly not controlling, are the II exemptions of the civil rights laws which prohibi t discrimination in housing affecting interstate commerce: Title II of the Civil Rights Act of 1964, 42 D.S.C. 2000a(b) (1) (owner-occupied rooming house with five rooms or less exempt from
so-called "Mrs. Murphy
covered places of public accommodation) i Fair Housing Act, 42 U.S.C. 3603 (b) (1) (single-family home), 3603 (b) (2) (owner-
...
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fits within none of the "Mrs. Murphy" exemptions established by the civil rights laws.
which prohibits unfair or deceptive acts or practices in trade or commerce. Landlords of single family dwellings and owner-occupants of two- and three-family dwellings are excluded from the class of
persons who are II engaged in trade or commerce II under Gen. L . c. 93A
1 (b) and 2 (a). See, Lantner v. Carson, 374 Mass. 606, 609-611,
(isolated rental of single-family home while temporarily living overseas). But see, Linthicum v. Archambault, 379 Mass. 381, 386387, 398 N.E.2d 482, 487 (1979) (owner was "engaged in trade or II in case brought under c. 93A 11 involving non-ownercommerce
occupied duplex). The class of persons who are excluded from coverage under Chapter 93A has not been further expanded in the
past ten years.
It is clear that the landlord owner in this case was II engaged
Act, Gen.L. c.93A l(b) and 2(a). And in this case, although
four units out, thus engaging himself and the building II in trade or
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commerce. II
Whether or not strict liability ought to be imposed for all (or some) violations of the State Building Code is, of course, a policy question to be determined by the Legislature. Whether or
not the Legislature has done so, with respect to the specific circumstances of a specific case is, inevitably, a question for the courts.
It is of course possible that the Legislature has determined that there should be no strict liability with respect to buildings
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structure in the instant case, and, notwithstanding the ruling in the Duda case, with respect to any and all residential buildings. If, as the Banushi Court observed, at 244 fn.5, 780 N.E.2d 23 fn.5,
the Legislature, by omission of a comma in the phrase "manufacturing establishment or building, II simply intended the word
"building" to be a synonym for "manufacturing establishment, II the
term "building" clearly would not include the structure in this case, which clearly is not a "place of assembly, theatre, special
However, neither of our appellate courts has so ruled. The Banushi Court did state that the holding in the Duda case has been discredited, citing the Eakin and Santos cases. But the Banushi Court did not discredit the Osorno case's dictum, at 618 fn.8, 779 N.E.2d 650 fn.8, that distinguished a small condominium apartment building's use from the rental of dwelling units in rooming houses, large apartment buildings, or smaller multiple family tenements, as being the type of commercial enterprise involving the public that
establishment. The owner, who holds the property for commercial and investment purposes, rents all four units out and does not occupy any space in the building. These facts readily distinguish this case from any of the reported cases where the structure in
It is true that the defective guardrail and its landing above the exterior stairway from which the plaintiff fell do not service the commercial establishment, and in fact service only two of the
three residential apartments. Because the guardrail, and its landing and stairway, may not themselves have a commercial or
in favor of excluding the premises from the term "building" in the strict liability statute. However, nothing in the statute suggests that its coverage is determined by
public use, these facts argue
whether a specific portion of the structure has a commercial or public use, rather than by whether the building as a whole has a commercial or public use and character.
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strict liability law. However, it is my opinion that the mixed residential-commercial four-unit non-owner-occupied structure in II and "public" enough to fit within the this case is II commercial term "building" in section 51.
It is my judgment that the appellate courts will not, at this
statute i and I hold that the the structure at issue in the instant The defendant's post-judgment motion for
judgment
2. Costs
The plaintiff, who prevailed in the action on counts for
common law negligence and for violation of the State Building Code under Gen. L. c .143 51, has submitted an application for costs under MRCvP Rule 54 (d) and (e) and Gen. L. c. 261 1 and 13. After
hearing, see Gen.L. c.261 19, I allow $6,485.10 portion of the $13,504.55 total amount requested.
I allow $145 for the entry, surcharge and blank summons fees and $312.70 for service of process fees. I allow $3,052.40 for necessary. Of the $8,850
depositions, which I find were reasonably
1./ i have considered the option of reporting the strict liability issue to the Appeals Court, in view of the unsettled state of the law. I decline to do so, however, because neither party has so requested, and in my view a trial judge's curiosity
The case, having reached the final judgment stage, is fully appealable by the defendant as to any error in my rulings that the building in this case is covered by the strict liability provision of section 51. Equally so, the plaintiff (although he received the functional equivalent under the State Building Code verdict) is entitled to cross appeal any error in my jury instructions that a finding of negligence is required to support a finding of liability
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amount requested for expert witness fees, I allow $1,000 for the plaintiff's witness' attendance at his deposition, an equal $1,000
amount for his deposition preparation time, and $500 which the plaintiff paid for the defendant's expert witness to attend his
ORDER
The motion by the defendant for judgment notwithstanding the verdict or for new trial is denied. The motion by the plaintiff for costs is allowed in part and denied in part. The clerk will enter an amended judgment taxing costs in accordance with this
decision.
c1aw~'!~
Associate Justice
February 10, 2012
David D. Kerman
11