11-~Oz' (2COMMONWEALTH OF MASSACHUSETTS NORTHEAST HOUSING COURT

WILLIAM SHEEHAN

Plaintiff
- v.-

No.08-CV-0135
Defendant

DAVID B. WEAVER

DECISION AND ORDER

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

common law negligence, breach of the implied warranty of

habi tabili ty, violation of the covenant of quiet enj oyment under

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.

After a four day trial and more than five hours of

deliberations, the jury returned a special verdict under MRCvP Rule 49 (a), finding for the plaintiff on his claim of negligence, but finding that the plaintiff himself was forty percent contributorily negligent, and finding also for the plaintiff on the State Building

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.

1. Motion for Judament NOV or New Trial

The defendant timely moved at trial for directed verdict under

MRCvP Rule 50 (a) , and he timely moves now for judgment

notwithstanding the verdict under MRCvP Rule 50 (b), or in the alternative for new trial under MRCvP Rule 59. After hearing and
upon consideration, I deny the defendant's motion.

'7

(1) Inconsistent verdict

The defendant contends that the verdict should be set aside

because the finding of liability on the negligence claim is

inconsistent with the finding of no liability on the habitability

and quiet enj oyment claims. I agree that the verdict is

inconsistent. See, Haqlund v. Philip Morris, Inc., 446 Mass. 741,

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. ")

found to have been negligent without having breached the warranty

The inconsistency is especially obvious in view of my jury

instructions that a finding of negligence at least is necessary to support not only the quiet enj oyment claim, Al-Ziab v. Mourqis, 424 Mass. 847, 679 N.E.2d 528 (1997), but also the habitability claim. (The plaintiff duly obj ected to the habitability charge.)

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

Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979), negligence at

Messina, N.E.Hsg.Ct. No. 07-CV-0065 (December 20, 2007), and the authorities cited therein. See also, Herman v. Sullivan, N.E.Hsg.

the landlord or lessor is not required, Berman ~ Sons, Inc. v.

doctrine for injury to person or property. See, Griffith v.

Peabody Housinq Authority, N.E.Hsg.Ct. No. 07-CV-0233 (August 31,

least must be shown in order to recover under the habitability

Ct. No. 05-CV-0047 (jury instructions March 3, 2009) i Todisco v.

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).

The common law development of premises liability in

Massachusetts has proceeded piecemeal. See generally, John M. Greaney, Developinq Duties of . Landlord with Reqard to Tenant Safety, 63 Mass.L.Rev. 61 (1978). Unlike other courts, e.g.,

Sarqent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973), the

Massachusetts Supreme Judicial Court has effected changes in the

law of premises liability "by successive steps II and not by

reformulating large, general changes. Kinq v. Q ~ M Realty Corp. ,

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

II Considerations of fault do not belong in an analysis of warranty."

Berman ~ Sons, Inc. v. Jefferson, 379 Mass. 196, 200, 396 N.E.2d

981, 984 (1979).

However, it remains an open question whether premises

liability for personal injury under the warranty of habitability is

strict liability or whether such liability is subj ect to a

negligence standard. See, Crowell v. McCaffrey, 377 Mass. 443, 452, 386 N. E. 2d 1256, 1262 (1979) i Berman ~ Sons, Inc. v. Jefferson, 379 Mass. 196, 200 fn.7, 201 fn.9, 396 N.E.2d 981, 984
fn.7, 985 fn.9, (1979) i Young v. Garwicki, 380 Mass. 162, 170 fn.9,
402 N.E.2d 1045, 1050 fn.9 (1980). In this respect, the law

of

premises liability is still in a state of flux, and the

relationship between the law of warranty and the law of negligence

is not finally settled. See generally, Jeffrey C. Melick, The

Standard of Care in Warranty of Habitability Cases, 82 Mass.L.Rev.

187 (1997) John M. Greaney, Developinq Duties of . Landlord with

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

There are indications in the Massachusetts appellate cases

that a negligence standard applies. See, Fletcher v. Littleton, 68 Mass.App. 22, 25-26, fn.7, 859 N.E.2d 882, 885-886, fn.7 (2007), aff'g Plymouth Superior Ct. No. 95-0867B, 2004 WL 389109 (Hely, J., January 2, 2004), declining to "explicitly confirm that breach of the implied warranty of habitability gives rise to liability for

resulting injuries without further proof of negligence ... in the

same manner as liability would be imposed for a breach of the
implied 'warranty of merchantability' under the Uniform Commercial Code"i Ayala v. Boston Housinq Authority, 404 Mass. 689, 703-704, 536 N.E.2d 1082, 1091 (1989), stating "There is essentially little

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

care" standardi Crowell v. McCaffrey, 377 Mass. 443, 452, 386

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

to be shared by landowners II springs naturally and inexorably" from

(1973), stating that the general duty of reasonable care henceforth

held that there is an implied warranty of habi tabili ty in an

apartment lease transaction.

the case of Kline v. Burns, 111 N.H. 87, 276 A.2d 248 (1971) which

I note that in other states there is almost universal

rej ection of strict premises liability under the implied warranty of habi tabili ty doctrine. See, e. g, Peterson v. Superior Court, 10 Cal.4th 1185, 43 Cal.Rptr.2d 836, 899 P.2d 905 (1995), overruling Becker v. IRM Corp., 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d

116,48 ALR4 601 (1985)i Dwyer v. Skyline Apartments, Inc., 123

Action for Breach of Implied Warranty of Habi tabili ty in

Residential Lease, II 25 Causes of Action 493 (2007), 28. Personal injury damages Francis M. Dougherty, Annotation, II Strict Liabili ty
Defect in Premises Leased for Residential Use, II 48 ALR4 638 (1986) i
Annotation, II

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

o Landlord for Injury or Death of Tenant or Third Person Caused by

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

distress component), and do not recognize habitability as a

separate cause of action for physical or bodily personal inj uries .

See, Curry v. New York Housinq Authority, 77 App.Div.2d 534, 430

N.Y.S.2d 305 (1st Dept 1980) i Alharb v. Sayegh, 199 App.Div.2d 229, 604 N.Y.S.2d 243 (2nd Dept 1993) i Stone v. Gordon, 211 App.Div.2d 881, 621 N.Y.S.2d 220 (3rd Dept 1995) i Richardson v. Simone, 275

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,

377 Mass. 443, 386 N.E.2d 1256 (1979).

L
!,

Regardless, at sidebar when the verdict was taken, both

lawyers and I acknowledged and discussed the inconsistency of the negligence verdict with the habitability verdict, and with the

quiet enjoyment verdict. I offered to send the jury back to

resolve the inconsistency, but both parties declined my offer and stated that they were satisfied. I did not ask the jury to clarify

their verdict before they separated and were discharged, and

neither party asked me to do so. I do not now question or disturb the verdict. See my ruling in Copley v. Anderson, Bos. Hsg. Ct. No. 89-SP-52386 (October 17, 1991), citing B.F. Hodqson Co. v. Lisanti, 339 Mass. 775, 159 N.E.2d 67 (1959) (rescript).

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

weather protection and sealed joints and 103, 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) .

elements), 410. 503 (protective railings), 410. 750 (conditions

deemed to endanger or impair health or safety), 410. 750 (K)

To be sure, there was also evidence that the plaintiff's

intoxication and lack of due care was a substantially contributing cause of his own injuries. But this does not negate the evidence of defect and lack of due care on the part of the defendant, and the jury, after considerable effort and deliberation, so found. There is no reason to set aside the jury's verdict.

The defendant timely requested and I denied over the

defendant's obj ection, a jury instruction about intervening or

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

,/
\i

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

load or 300 pounds of concentrated pressure. See, Haqlund v.

Philip Morris, Inc., 446 Mass. 741, 847 N.E.2d 315 (2006) i Correia v. Firestone Tire ~ Rubber Co., 388 Mass. 342, 352, 355-357, 446

N.E.2d 1033, 1038-1039, 1040-1041 (1983).

(3) Strict Liability under Gen.L. c.143 51

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

provides that II the party in control II of a building II shall comply

with the provisions of this chapter and the state building code relative thereto, and such person shall be liable to any person

provisions. II

inj ured for all damages caused by a violation of any of said

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

Mass.App. 578, 766N.E.2d883 (2002), the

Appeals Court acknowledged that the interpretation of the statute

by the Supreme Judicial Court was apparently erroneous but

nevertheless held that the erroneous interpretation by the Supreme Judicial Court was "controlling" and constituted "a limitation on
(the statute' sJ facially broad language. II

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

issue would be "deferred" until after the jury returned its

verdict. In the case of Gifford v. Sears, Middlesex Superior Ct. No. 04-165A, 2005 WL 2373847 (Connolly, J., August 12, 2005) the Superior Court judge also "deferred" the "fleeing a fire" issue. As in Merloni and Gifford, I too "deferred" decision of the issue.

The jury has now returned its verdict. What now?

The Merloni court stated that even if the footnote in the

McAllister case was "not truly ... controlling authori ty" because

of its mistaken reliance on a case that interpreted an earlier version of the statute, or because it is dictum, the Fox case

II certainly is controlli.ng authority, II even if the Appeals Court in

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.

In this regard, it is significant that in Osorno v. Simone, 56

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

binding precedent that a trial judge ought to follow. I believe

instead that in this highly unusual circumstance of obvious

blindly follow that which appears to be, but which actually is not,
controlling, binding precedent.
I therefore proceed to the merits.
* * *

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

The structure in this case consists of a building that

contains three residential apartments located above a first floor commercial establishment. The owner, who holds the property for commercial and investment purposes, rents all four units out and occupies no space in the building. The defective porch guardrail which cQllapsed services only two of the three tenanted apartmentS.

The State Building Code Law, Gen.L. c.143 51, provides:

"Liability for violation of statutes; criminal

prosecution; notice to firm or corporation. The owner, lessee, mortgagee in possession or occupant, being the

party in control, of a place of assembly, theatre,

special hall, public hall, factory, workshop,

manufacturing establishment or building shall comply wi th

the provisions of this chapter and the state building

code relative thereto, and such person shall be liable to any person injured for all damages caused by a violation

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

charge of the building or part thereof shall be

sufficient notice hereunder to all members of any firm or corporation owning, leasing or controlling the building or any part thereof. Such notice may be served personally

or sent by mail. II

It is well settled that, unless the Legislature has clearly

and expressly provided for strict liability, the courts will

of negligence" only, and not as "negligence per se. II See, Perry v.

consider the violation of a health or safety law as II some evidence

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

long-standing judicial reluctance to impose strict liability is

consistent with the familiar canon that "a statute in derogation of

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.

the common law should be strictly construed, so long as the

47 N.E.2d 257, 259 (1943).

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,

(1987) i Commonwealth v. Racine, 372 Mass. 631, 363 N.E.2d 500

(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

death. see, e.g., Ribeiro v. Town of Granby, 395 Mass. 608,

481N.E.2d violation fire, but problems, 466 (1985), where lack of a second means of egress in of the State Building Code caused death in an apartment violations of the State Sanitary Code concerning septic although serious, were unrelated to the death.

Understandably, the law regards violations of the State

Building Code as more serious than violations of the State Sanitary

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.

11 (footnote continued on next ~) .

c,

injury, the Supreme Judicial Court held that, from the specific types of structures mentioned in section 51 (iiplace of assembly,

611, 614 (1992), where a construction worker suffered serious

In St. Germaine v. Penderqast, 411 Mass. 615, 619, 584 N.E.2d

theatre, special hall, public hall, factory, workshop,

manufacturing establishment"), and the definition contained in
section 1 for the general term "building, II section 51 is not meant to apply to a single family home that is under construction.

In Commonwealth v. Duda, 33 Mass.App. 922, 597 N.E.2d 1382

(1992) (rescript), the Appeals Court, in reversing criminal

convictions for violations of the State Building Code for lack of the required written notice, held that a watchmen's cottage in a commercial marina qualified as a "building" under section 51 even if the cottage was considered to be residential.
But in Santos v. Bettencourt, 40 Mass.App. 90, 661 N.E.2d 671 (1996), where a worker while installing a roof was injured when a

"makeshift scaffold" collapsed, the Appeals Court, citing the

Penderqast case, and invoking the doctrine of ej usdem generis, held

i/ (footnote continued from previous ~) .

The murkiness of the statute is aggravated by oddities that cannot be easily understood or explained. As the Supreme Judicial Court observed in Commonwealth v. Eakin, 427 Mass. 590, 592, fn.4, 593fn.6, 696 N.E.2d 499, 500, fn.4, 501 fn.6 (1998), modifying 43

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

of a structure that are lasting and permanent, such as the

guardrail in this case, and structures that are temporary, such as

ladders and scaffolding. The law makes no distinction between

maj or and minor violations, as section 51 unambiguously requires that the "party in control II of a covered structure or "building"

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

characterized by II commercial and public "2:/ uses and structures,

such that section 51 is not applicable to a single family house.

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

(1998), modifying 43 Mass.App. 693, 685 N.E.2d 1195 (1997), the

In Commonwealth v. Eakin, 427 Mass. 590, 696 N. E. 2d 499

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

whether an owner-occupied three-family house was a "building"

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

a causal link between the collapse and the owner's failure to

obtain a building permit and property site inspection as required by the State Building Code.

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.

In Osorno v. Simone, 56 Mass.App. 612, 779 N.E.2d 645 (2002),

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.

2:/ The disjunctive phrase "public or commercial" may be more

appropriate than the conj uncti ve phrase II commercial and public" as the enumerated specific words preceding the word "building" seem to

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."

In Banushi v. Dorfman, 438 Mass. 242, 780 N.E.2d 20 (2002),

where a painter fell from a ladder onto wood debris that had been

regulations which required cleanup and disposal of worksi te debris,

left by other workers in violation of State Building Code

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

in question, lived on the first floor and rented the other

apartment to a tenant) was not a "building" within the meaning of
section 51.

In the Banushi case, the Supreme Judicial Court noted, at 244

Legislature simply may have intended the word ' building' as a

consistent with our decision today. ii

fn.5, 780 N.E.2d at 23 fn.5, "Separately, we observe that the

synonym for a 'manufacturing establishment.' There is no comma in

that portion of the definition that contains the phrase

, manufacturing establishment or building.' Such an intent is

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

Code. As discussed, the issue of the statute's coverage was

subsequent history.

ii deferred ii and not decided. The Merloni case has no reported

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

unsafe scaffolding that was in violation of the State Building

Code. The Superior Court, relying on Glidden, ruled that there was

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-

family residence was not the type of commercial enterprise

involving the public that would be covered by the strict liability

history.

statute. The Hristoforidis case has no reported subsequent

~ 1,~

In Gifford v. Sears, Middlesex Superior Ct. No. 04-165A, 2005

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

judge "deferred" the "building" issue (as well as the II fleeing a

fire" issue). The Gifford case has no reported subsequent history.
Of the seven reported appellate court cases (not including the

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,

or to a small condominium, or to an owner-occupied two-family

watchmen's cottage that was part of a commercial marina, but that case may be discredited. Another case involved an owner-occupied three-family house, but in that case the issue of whether the house was a "building" within the meaning of the statute was not decided.

residence. One case held that the statute did apply to a

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

involving residential tenants' guests and permanent parts f

housing structures, where the issue of coverage was deferred and not decided. Of the three trial court cases, one case held that the statute did not apply to a non-owner-occupied three-family residence. In the other two cases, one involving an apartment unit, and the other an owner-occupied two-family dwelling where the rental apartment was a separate structure, the issues of coverage were deferred and not decided.

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-

occupied four-family dwelling). See also, with respect to

intrastate commerce: Massachusetts Anti-discrimination law, Gen. L.

...

/;

c.151B 4 (7) (owner-occupied two-family dwelling), 4 (11) (3)

(same), 4 (11) (1) (elderly or infirm person occupied three-family dwelling), 4 (11) (2) (temporary leasing of single family dwelling

that is owner's principal residence) The structure in this case

fits within none of the "Mrs. Murphy" exemptions established by the civil rights laws.

similar exemptions under the Consumer Protection Act, Gen. L. c. 93A,

More analogous, although of course not dispositive, are the

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,

373 N.E.2d 973, 975-976 (1978) (private sale of single-family

home) i Billings v. Wilson, 397 Mass. 614, 493 N.E.2d 187 (1986) (owner-occupied two- family dwelling) i Sayah v. Hatzipetro, 397 Mass. 1004, 492 N.E.2d 1131 (1986) (rescript) (same) i Younq v. Patukonis, 24 Mass.App. 907, 910, 506 N.E.2d 1164, 1168 (1987) (rescript) (owner-occupied three-family dwelling) i Neihaus v.

Maxwell, 54 Mass.App. 558,562-563,766 N.E.2d 556,559-560 (2002)

(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

in trade or commerce II wi thin the meaning of the Consumer Protection

II in the sense that it is used for a business that is open to the public, the entire structure is II commercial" in the sense that the owner, who does not occupy any part of it, rents all
II commercial

Act, Gen.L. c.93A l(b) and 2(a). And in this case, although

three of the four units are residential, and only one is

four units out, thus engaging himself and the building II in trade or
* * *

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

and structures such as the combined residential and commercial

,l 'f

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

hall, public hall, factory, workshop, or manufacturing

establishment. II Nor would it include any residential "building. II

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

could invoke strict liability under the statute. As the Court

ruled in Banushi v. Dorfman, 438 Mass. 242, 244, 780 N.E.2d 20, 23

(2002), it is unlikely that the Legislature intended that the

strict liability provision of section 51 apply to small residences

from which only minimal rental income is derived. But it seems

unlikely also that the intent of the statute is to exclude from its coverage any and all residential property no matter how large.
As mentioned above, the structure in the instant case consists of three tenanted apartments located above a first floor commercial

question was ruled to be not a "building" under the strict

liability statute.

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.

;f"

/'

The question is hardly free from doubt, and the structure in

this case may well be at the outer margin of the class of

structures that fall within the ambit of the term "building" in the

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

juncture, view the word "building" to be a mere synonym for

"manufacturing establishment II (per Banushi at footnote 5), thus to exclude any and all residential buildings from coverage under the

case has enough II commercial or public II use and character (per

Osorno at footnote 8) to fit within the strict liability provision
of section 51.1./

statute i and I hold that the the structure at issue in the instant The defendant's post-judgment motion for

judgment

notwithstanding the verdict or new trial is denied.

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

and wish for appellate court guidance is not sufficient

justification for the judge to force an appeal.

under the habi tabili ty law.

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

; tn

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

deposition. I allow $475 for the mediation services fee. I

disallow the remaining $ 7,019.45 requested by the plaintiff for

medical records, photocopying, postage, expenses paid to

predecessor counsel, and expert witness fees at trial. See, Waldman v. American Honda Motor ~ Inc., 413 Mass. 320, 597
N.E.2d 404 (1992) (statutory limitation on taxable witness fees applied to all witnesses including experts). Contrast, Linthicum

v. Archambault, 379 Mass. 381,398 N.E.2d 482 (1979) (attorney's

c.93A case) .

fees and expert witness fees should normally be recoverable in a

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