New Liability for Massachusetts Landlords in Personal Injury Cases
We have represented many victims of landlord negligence in Massachusetts. Landlords owe very specific duties to tenants. There are different types of landlords: commercial and residential, for example.
In a decision by Housing Court Judge David Kerman, residential landlords may face increased liability when a tenant is injured as a result of a housing code violation.
The facts in this case are critical to understating what happened and how the law is evolving. The building at issue had a commercial entity on the ground floor, with three residential units above. The plaintiff, Sheehan, was a resident of one of the residential units. He was intoxicated and leaned against the guardrail. Unfortunately, when the guardrail gave way he fell onto the pavement below and was seriously injured.
Sheehan sued the landlord, Weaver. The lawsuit alleged negligence, because of the defect, breach of the landlord’s implied warranty of habitability, unfair business practices under Massachusetts General Laws 93A – the Consumer Protection Statute, and strict liability under Section 51 of the Building Code. He proved at trial that the guardrail gave way because it was defective and in violation of the Massachusetts Building Code, thus winning on both the negligence and strict liability counts.
Massachusetts General Laws, Chapter 143, Section 51, of the Massachusetts Building Code is considered to apply to “commercial” buildings. It states that violations of the building code resulting in injury subject the landlord to strict liability.
That is, if there is a finding of building code violation, and the injury is a result of that violation, the landlord is responsible. The tenant here was a residential tenant. However, the Court said that this was really a “mixed residential commercial four unit non owner occupied” building which satisfied Section 51. The Court pointed to the non owner-occupied part of the statute and the commercial use of the first floor. The attorney for Sheehan, Louis Muggeo of Salem, Massachusetts, claimed that the decision sets a new “road map” for tenants suing under Section 51 and strict liability.
Counsel for Weaver, Paul Gillespie, of Danvers, who often defends landlords who are insured with Vermont Mutual Insurance, claims that there may be a constitutional violation in the Court’s decision. The Law Office of Neil Burns has litigated against Attorney Gillespie. He is tenacious and a tremendous advocate for his clients. On the other hand, he has a tendency to refuse to consider building code violations or fire alarm violations as any evidence of negligence. In light of the $242,000 jury verdict, we wonder if his client could have resolved this case short of that. This case hinges on the definition of the word “building” in Section 51. There is case law which clearly indicates that an owner occupied small residential building (a two family with the owner in one) is not a “building” under Section 51 and no strict liability can apply.
Where should courts draw the line? The defense bar is outraged at this decision. They are calling for an appeal. Attorney Gillespie says he doesn’t like the language of Section 51 and an appeal could hurt. Indeed, he is right, the language does not exclude mixed-use buildings such as in this case. It includes “a place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building.” This case may push a great number of cases over the line, declaring that mixed-use buildings can be “buildings” for the purposes of strict liability.
The plaintiff bar would agree with Judge Kerman and argue that if a landlord violates a building code and as a result a tenant, or legal invitee, is injured, why shouldn’t there be strict liability. After all, the code is there to protect Massachusetts injury victims falling from a defective guardrail in this case. It was not too hard for the landlord to comply with the code – fix the guardrail!