11-~Oz' (2-

COMMONWEALTH OF MASSACHUSETTSNORTHEAST HOUSING COURT

WILLIAM SHEEHAN

Plaintiff- v.- No.08-CV-0135

DAVID B. WEAVER

Defendant

DECISION AND ORDER

The plaintiff tenant in this case fell through a porchguardrail onto the asphalt pavement below and was seriouslyinjured. He brought suit against the owner landlord, allegingcommon law negligence, breach of the implied warranty ofhabi tabili ty, violation of the covenant of quiet enj oyment underGen. L. c. 186 §14, strict liability for violation of the StateBuilding Code under Gen.L. c.143 §51, and unfair or deceptive actsor practices under Gen. L. c. 93A §2 (a) and § 9.

After a four day trial and more than five hours ofdeliberations, the jury returned a special verdict under MRCvP Rule49 (a), finding for the plaintiff on his claim of negligence, butfinding that the plaintiff himself was forty percent contributorilynegligent, and finding also for the plaintiff on the State BuildingCode claim. The jury found no liability on the habi tabili ty, quietenj oyment, and Chapter 93A claims. Damages were assessed in theamount of $145,364 on the negligence claim, taking into account theplaintiff's own negligence, and in the amount of $242,273 on theState Building Code claim. The jury specially found that the twodamage assessments were duplicative, such that there would be onlyone recovery on the higher award.

1. Motion for Judament NOV or New Trial

The defendant timely moved at trial for directed verdict underMRCvP Rule 50 (a) , and he timely moves now for judgmentnotwithstanding the verdict under MRCvP Rule 50 (b), or in thealternative for new trial under MRCvP Rule 59. After hearing andupon consideration, I deny the defendant's motion.

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(1) Inconsistent verdictThe defendant contends that the verdict should be set aside

because the finding of liability on the negligence claim isinconsistent with the finding of no liability on the habitabilityand quiet enj oyment claims. I agree that the verdict isinconsistent. See, Haqlund v. Philip Morris, Inc., 446 Mass. 741,747 fn.9, 847 N.E.2d 315, 322 fn.9 (2006) ("A defendant in aproducts liability case in this Commonwealth may be found to havebreached its warranty of merchantability without having beennegligent, but the reverse is not true. A defendant cannot befound to have been negligent without having breached the warrantyof merchantability. ")

The inconsistency is especially obvious in view of my juryinstructions that a finding of negligence at least is necessary tosupport not only the quiet enj oyment claim, Al-Ziab v. Mourqis, 424Mass. 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 onthe issue, see, Scott v. Garfield, 454 Mass. 790, 796 fn.8, 912N.E.2d 1000, 1006 fn.8 (2009), I am of the opinion that, apart fromthe rent abatement context where a finding of fault on the part ofthe landlord or lessor is not required, Berman ~ Sons, Inc. v.Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979), negligence atleast must be shown in order to recover under the habitabilitydoctrine for injury to person or property. See, Griffith v.Messina, N.E.Hsg.Ct. No. 07-CV-0065 (December 20, 2007), and theauthorities cited therein. See also, Herman v. Sullivan, N.E.Hsg.Ct. No. 05-CV-0047 (jury instructions March 3, 2009) i Todisco v.Peabody Housinq Authority, N.E.Hsg.Ct. No. 07-CV-0233 (August 31,2009) i Mateo v. Durbin, N.E. Hsg.Ct. No. 08-CV-0133 (June 3, 2010) iMcGurn v. Russell, N.E.Hsg.Ct. No. 08-CV-0242 (November 22, 2010) iCole v. Day, N.E.Hsg.Ct. No. 09-SP-1987 (July 6, 2011) i Snitkovskyv. Anderson, N. E. Hsg. Ct. No. 11-CV-3649 (December 27, 2011), allfollowing my ruling in the Griffith case. But see, Ruiz v. PelsonRealty Trust, Essex Superior Ct. No. CIV-A-99-1969, 2001 WL 810347(Agnes, J., April 9, 2001) i Gifford v. Sears, Middlesex SuperiorCt. No. 04-165A, 2005 WL 2373847 (Connolly, J., August 12, 2005).

The common law development of premises liability inMassachusetts has proceeded piecemeal. See generally, John M.Greaney, Developinq Duties of .ê Landlord with Reqard to TenantSafety, 63 Mass.L.Rev. 61 (1978). Unlike other courts, e.g.,Sarqent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973), theMassachusetts Supreme Judicial Court has effected changes in thelaw of premises liability "by successive steps II and not byreformulating 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

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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.2d1256 (1979), which recognized a separate cause of action forpersonal injuries in habitability in addition to common lawnegligence, with Sarqent v. Ross, 113 N.H. 388, 308 A.2d 528(1973), which recognized habitability as part of a single, unitarycause of action sounding in negligence.

In Crowell the Court upheld a cause of action for personalinjuries caused by breach of warranty of habitability in theordinary residential tenancy at will. In Berman ~ Sons, Inc. v.Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979) the Court upheldliability for rent abatement for breach of warranty of habitabilitydespite the landlord's lack of fault and reasonable efforts torepair. It is clear that for rent abatement under the warranty ofhabitability the landlord's liability is strict liability and thatII Considerations of fault do not belong in an analysis of warranty."Berman ~ Sons, Inc. v. Jefferson, 379 Mass. 196, 200, 396 N.E.2d981, 984 (1979).

However, it remains an open question whether premisesliability for personal injury under the warranty of habitability isstrict liability or whether such liability is subj ect to anegligence 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, 984fn.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 ofpremises liability is still in a state of flux, and therelationship between the law of warranty and the law of negligenceis not finally settled. See generally, Jeffrey C. Melick, TheStandard of Care in Warranty of Habitability Cases, 82 Mass.L.Rev.187 (1997) ¡John M. Greaney, Developinq Duties of .ê Landlord withReqard to Tenant Safety, 63 Mass.L.Rev. 61 (1978). The SupremeJudicial Court stated, in Younq v. Garwicki, 380 Mass. 162, 163fn.1, 402 N.E.2d 1045, 1046 fn.1 (1980), that, until therelationship between the law of warranty of habitability and thelaw of negligence is settled, special verdicts or special questionsare advisable.

There are indications in the Massachusetts appellate casesthat a negligence standard applies. See, Fletcher v. Littleton, 68Mass.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 ofthe implied warranty of habitability gives rise to liability forresulting injuries without further proof of negligence ... in thesame manner as liability would be imposed for a breach of theimplied 'warranty of merchantability' under the Uniform CommercialCode"i Ayala v. Boston Housinq Authority, 404 Mass. 689, 703-704,536 N.E.2d 1082, 1091 (1989), stating "There is essentially little

1

difference between the elements of proof in a tort action forpersonal inj ury and a contract action for the same. The duty ofthe defendant is the same whether the action is in tort or incontract"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 "reasonablecare" standardi Crowell v. McCaffrey, 377 Mass. 443, 452, 386N.E.2d 1256, 1262 (1979), suggesting "a negligence standard" and aduty of "reasonable care

II in the context of implied warrantypremises liability, but stating "We do not pass on the questionwhether 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(1973), stating that the general duty of reasonable care henceforthto be shared by landowners II springs naturally and inexorably" fromthe case of Kline v. Burns, 111 N.H. 87, 276 A.2d 248 (1971) whichheld that there is an implied warranty of habi tabili ty in anapartment lease transaction.

I note that in other states there is almost universalrej ection of strict premises liability under the implied warrantyof habi tabili ty doctrine. See, e. g, Peterson v. Superior Court, 10Cal.4th 1185, 43 Cal.Rptr.2d 836, 899 P.2d 905 (1995), overrulingBecker v. IRM Corp., 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d116,48 ALR4 601 (1985)i Dwyer v. Skyline Apartments, Inc., 123N.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 ofAction for Breach of Implied Warranty of Habi tabili ty inResidential Lease, II 25 Causes of Action 493 (2007), §28. Personalinjury damages ¡Francis M. Dougherty, Annotation, II Strict Liabili tyoÉ Landlord for Injury or Death of Tenant or Third Person Caused byDefect in Premises Leased for Residential Use, II 48 ALR4 638 (1986) iAnnotation, II Recovery, under Strict Liability in Tort, for Injuryor Damage Caused by Defects in Building or Land, II 25 ALR4 351(1983) .

I note also that the New York cases recognize habitabilityonly as a cause of action for rent abatement with a contract-basedmeasure of damages (perhaps also with a "garden-variety" emotionaldistress component), and do not recognize habitability as aseparate cause of action for physical or bodily personal inj uries .See, Curry v. New York Housinq Authority, 77 App.Div.2d 534, 430N.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.2d881, 621 N.Y.S.2d 220 (3rd Dept 1995) i Richardson v. Simone, 275App. 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 Curryv. Davis, 241 App.Div.2d 924, 661 N.Y.S.2d 359 (4th Dept 1997) iJoyner v. Durant, 277 App.Div.2d 1014,716 N.Y.S.2d 221 (4th Dept2000) . Thus, New York law differs from the Massachusetts lawestablished by the Supreme Judicial Court in Crowell v. McCaffrey,377 Mass. 443, 386 N.E.2d 1256 (1979).

LÍ!,

Regardless, at sidebar when the verdict was taken, bothlawyers and I acknowledged and discussed the inconsistency of thenegligence verdict with the habitability verdict, and with thequiet enjoyment verdict. I offered to send the jury back toresolve the inconsistency, but both parties declined my offer andstated that they were satisfied. I did not ask the jury to clarifytheir verdict before they separated and were discharged, andneither party asked me to do so. I do not now question or disturbthe 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 thenegligence verdict and the habitability and quiet enjoymentverdicts, the defendant is not entitled to a new trial or otherrelief on that ground.

(2) Weiqht and sufficiency of the evidence

I disagree with the defendant's contention that the jury'sverdict was against the weight and sufficiency of the evidence,both on the issue of defect and on the issue of causation. Therewas overwhelming evidence that the connection of the guardrail toits post gave way because it was defective. The plaintiff's expertidentified eighteen separate violations and failures to comply withthe State Building Code, 780 C.M.R. (6th edition). The mostsignificant violations were: §1014. 9.1, which requires adequateguardrail strength capable of supporting a live load of 100 poundsand a concentrated load of 300 pounds i §1028. 2, which requiresweather protection and sealed joints ¡and §103, which requiresgeneral maintenance and owner responsibility. The other violationswere marginally relevant, material only in that they showed a lackof general care and maintenance of the guardrail, landing,stairway, and structure. The evidence also showed violations ofthe State Sanitary Code, 105 C.M.R.: §410.500 (structuralelements), §410. 503 (protective railings), §410. 750 (conditionsdeemed to endanger or impair health or safety), §410. 750 (K)(structural defects), and §410. 750 (0) (4) (protective railing) .

To be sure, there was also evidence that the plaintiff'sintoxication and lack of due care was a substantially contributingcause of his own injuries. But this does not negate the evidenceof defect and lack of due care on the part of the defendant, andthe 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 thedefendant's obj ection, a jury instruction about intervening orsupervening cause. Upon renewal of the obj ection, I again rulethat the defendant was not entitled to the requested charge asthere was no evidence upon which the jury could find that the

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plaintiff unreasonably misused the porch guardrail (by leaning orfalling against it, while in an intoxicated state) after he knewthat it was defective and might not withstand 100 pounds of liveload or 300 pounds of concentrated pressure. See, Haqlund v.Philip Morris, Inc., 446 Mass. 741, 847 N.E.2d 315 (2006) i Correiav. Firestone Tire ~ Rubber Co., 388 Mass. 342, 352, 355-357, 446N.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' sargument regarding the applicability of the strict liabilityprovision of the State Building Code Law, Gen.L. c.143 §51.

At the threshold, there is the question whether the strictliability provision, as judicially interpreted, applies only tofire safety law violations and to persons using stairways andegresses for the purpose of escape from fire. As discussed in theSuperior Court case of Stuart v. Merloni, 17 Mass.L.Rptr. 453, 2004WL557187 (Gants, J., March 22, 2004), the statute was so limitedprior to 1972 when the law was amended to provide for the StateBuilding Code. At that time the II fleeing a fire II fire safety lawlimi tation was removed from the statute, and the statute nowprovides that II the party in control II of a building II shall complywith the provisions of this chapter and the state building coderelative thereto, and such person shall be liable to any personinj ured for all damages caused by a violation of any of saidprovisions. II

In the case of McAllister v. Boston Housinq Authority, 429Mass. 300, 304 fn.5, 708 N.E.2d 95, 99 fn.5 (1999), however, theSupreme Judicial Court, in dictum, in a footnote, in a snow and iceslip and fall case, overlooked the 1972 amendments and relied onpre-1972 precedent to restate the previous "fleeing a fire" firesafety law rule. After that, in the case of Fox v. The LittlePeople's School, Inc., 54 Mass.App. 578, 766N.E.2d883 (2002), theAppeals Court acknowledged that the interpretation of the statuteby the Supreme Judicial Court was apparently erroneous butnevertheless held that the erroneous interpretation by the SupremeJudicial 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 atrial court, the Superior Court judge in Merloni, noting that boththe McAllister dictum and the Fox holding were mistaken, orderedthat, II solely for prudential reasons, II consideration of theissue would be "deferred" until after the jury returned itsverdict. In the case of Gifford v. Sears, Middlesex Superior Ct.No. 04-165A, 2005 WL 2373847 (Connolly, J., August 12, 2005) theSuperior Court judge also "deferred" the "fleeing a fire" issue.As in Merloni and Gifford, I too "deferred" decision of the issue.

L

The jury has now returned its verdict. What now?

The Merloni court stated that even if the footnote in theMcAllister case was "not truly ... controlling authori ty" becauseof its mistaken reliance on a case that interpreted an earlierversion of the statute, or because it is dictum, the Fox caseII certainly is controlli.ng authority, II even if the Appeals Court inthe Fox case also erred in finding the Supreme Judicial Court' sfootnote in the McAllister case to be controlling. The Merlonicourt then went on to say that it is probable that the McAllisterfootnote and the Fox ruling, which are II contrary to the plainlanguage of the statute, II would likely not survive on appeal.

I certainly agree that neither the McAllister footnote nor theFox ruling would survive on appeal. Indeed, I believe that thereis virtually no likelihood that either the Appeals Court or theSupreme Judicial Court will choose to follow the McAllister dictumor the Fox holding in future cases.

In this regard, it is significant that in Osorno v. Simone, 56Mass.App. 612, 615 fn.6, 779 N.E.2d 645, 648 fn.6 (2002), theAppeals Court mentioned its decision in the Fox case, but did notrely upon its holding that a violation of the building code doesnot result in strict liability except in cases of injury to someonefleeing from a fire. It is significant also that in Banushi v.Dorfman, 438 Mass. 242, 780 N.E.2d 20 (2002), the Supreme JudicialCourt did not follow (or mention) either the McAllister dictum orthe Fox holding.

In the "unusual circumstances of this case" (as described bythe Merloni court), I do not believe that either the McAllisterdictum or the Fox holding amount to II controlling authori ty" that isbinding precedent that a trial judge ought to follow. I believeinstead that in this highly unusual circumstance of obviousappellate court error, the task of a trial judge is to apply thelaw as the appellate courts now would likely apply it, and not toblindly follow that which appears to be, but which actually is not,controlling, binding precedent.

I therefore proceed to the merits.

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The structure in this case consists of a building thatcontains three residential apartments located above a first floorcommercial establishment. The owner, who holds the property forcommercial and investment purposes, rents all four units out andoccupies no space in the building. The defective porch guardrailwhich cQllapsed services only two of the three tenanted apartmentS.

1

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

"Liability for violation of statutes; criminalprosecution; notice to firm or corporation. The owner,lessee, mortgagee in possession or occupant, being theparty in control, of a place of assembly, theatre,special hall, public hall, factory, workshop,manufacturing establishment or building shall comply wi ththe provisions of this chapter and the state buildingcode relative thereto, and such person shall be liable toany person injured for all damages caused by a violationof any of said provisions. No criminal prosecution forsuch violation shall be begun until the lapse of thirtydays after such party in control has been notified inwri ting by a local inspector as to what changes arenecessary to meet the requirements of such provisions, orif such changes shall have been made in accordance withsuch notice. Notice to one member of a firm or to theclerk or treasurer of a corporation or to the person incharge of the building or part thereof shall besufficient notice hereunder to all members of any firm orcorporation owning, leasing or controlling the buildingor any part thereof. Such notice may be served personallyor sent by mail. II

It is well settled that, unless the Legislature has clearlyand expressly provided for strict liability, the courts willconsider the violation of a health or safety law as II some evidenceof negligence" only, and not as "negligence per se. II See, Perry v.Medeiros, 369 Mass. 836, 840-841, 343 N.E.2d 859, 862 (1976), wherethe Court stated, II It is also the general rule that while theviolation of a safety statute, ordinance or regulation is notconclusive on the issue of civil liability, it is evidence ofnegligence on the part of a violator as to all consequences thatthe statute, ordinance or regulation was intended to prevent. II Thelong-standing judicial reluctance to impose strict liability isconsistent with the familiar canon that "a statute in derogation ofthe common law should be strictly construed, so long as theconstruction is consistent with the statutory purpose.

II GlobeNewspaper Co. v. Superior Court, 379 Mass. 846, 853, 401 N.E.2d360, 365 (1980) i Corcoran v. ~ Kresqe Co., 313 Mass. 299, 303,47 N.E.2d 257, 259 (1943).

Still, in some circumstances where there is serious risk ofserious harm the Legislature has provided for strict liability.See, e. g., the Childhood Lead Poisoning Prevention and Control Law,Gen.L. c..111 §197A(e), §197D(a), §199(a). Such laws are valid andenforceable. See, Bencosme v. Kokoras, 507 N.E.2d 748, 400 Mass. 40(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 StateBuilding 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) iBanushi v. Dorfman, 438 Mass. 242, 780 N.E.2d 20 (2002).

The Legislature may have so provided because, althoughviolations of the State Sanitary Code can cause considerable harmand hardship, see e.g., Simon v. Solomon, 385 Mass. 91, 431 N.E.2d556 (1982) (repeated floods of water and sewage) i Wolfberq v.Hunter, 385 Mass. 390, 432 N.E.2d 467 (1982) (rodents and rubbish) iHaddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991) (nofunctioning heating system, missing and defective windows, screens,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, rodentsand roaches) i Cruz Manaqement ~ Inc. v. Thomas, 417 Mass. 782,633 N.E.2d 390 (1994) (rats, mice and roaches, inadequate heat andhot water, unsanitary common areas , defective stove , defectivesmoke detector, windows, and wiring), violations of the StateBuilding Code are more prone to causing serious injury and evendeath. see, e.g., Ribeiro v. Town of Granby, 395 Mass. 608,481N.E.2d 466 (1985), where lack of a second means of egress inviolation of the State Building Code caused death in an apartmentfire, but violations of the State Sanitary Code concerning septicproblems, although serious, were unrelated to the death.

Understandably, the law regards violations of the StateBuilding Code as more serious than violations of the State SanitaryCode. 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, orimprisonment 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, providethat a criminal prosecution cannot begin until 30 days afterwritten notice of violation. Gen.L. c.111 §127A and the StateSanitary Code, 105 C.M.R. §400.700, on the other hand, provide fora fine of not less than ten nor more than five hundred dollars forhousing violations i there is no provision for imprisonment, or fora 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 thestructure in this case constitutes a "building" within the meaningof the statute such that strict liability applies. But the scopeand meaning of the term "building" in the statute is unclear andunsettled.i/ I review the case law for guidance.

11 (footnote continued on next ~) .

c,

In St. Germaine v. Penderqast, 411 Mass. 615, 619, 584 N.E.2d611, 614 (1992), where a construction worker suffered seriousinjury, the Supreme Judicial Court held that, from the specifictypes of structures mentioned in section 51 (iiplace of assembly,theatre, special hall, public hall, factory, workshop,manufacturing establishment"), and the definition contained insection 1 for the general term "building, II section 51 is not meantto 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 criminalconvictions for violations of the State Building Code for lack ofthe required written notice, held that a watchmen's cottage in acommercial marina qualified as a "building" under section 51 evenif 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 thePenderqast case, and invoking the doctrine of ej usdem generis, held

i/ (footnote continued from previous ~) .

The murkiness of the statute is aggravated by oddities thatcannot be easily understood or explained. As the Supreme JudicialCourt 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 43Mass.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 iit seems illogical that the owner of a private home is entitled toless advanCe notice of steps that should be taken to correct abuilding code violation than is the owner of a commercial orindustrial building i other sections (§9 and §100) of chapter 143are not easily reconciled.

The statute does not distinguish between structures or partsof a structure that are lasting and permanent, such as theguardrail in this case, and structures that are temporary, such asladders and scaffolding. The law makes no distinction betweenmaj or and minor violations, as section 51 unambiguously requiresthat 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 aviolation of any of said provisions. II (i talics supplied). Thestatute also makes no express distinction between large and smallbuildings, but with the possible exception of the word II workshop

"

all of the enumerated words preceding the word "building" connotethat the size of the structure is an important factor.

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that although the word "building" in section 51 has a literalmeaning that is substantially more extensive than the wordspreceding it, the words as a whole identify a class that ischaracterized by II commercial and public "2:/ uses and structures,such that section 51 is not applicable to a single family house.

In Commonwealth v. Eakin, 427 Mass. 590, 696 N. E. 2d 499(1998), modifying 43 Mass.App. 693, 685 N.E.2d 1195 (1997), theSupreme Judicial Court, although reversing criminal convictions forviolations of the State Building Code, stated that the reasoning ofthe Santos opinion is sound, and held that a single family housedid not qualify as a "building" under section 51, such that thenotice 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 questionwhether an owner-occupied three-family house was a "building"within the meaning of section 51 (the motion judge had ruled thatit was not), holding instead that roof repair workers, who wereinjured when "pump-jack scaffolding" collapsed, failed to establisha causal link between the collapse and the owner's failure toobtain a building permit and property site inspection as requiredby the State Building Code.

The Fox case, discussed above, was decided in April 2002.After that, the Appeals Court decided the Osorno case, and theSupreme Judicial Court decided the Banushi case, both in Decemberof 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 withcertain OSHA regulations required by the State Building Code, theAppeals Court held that the " relatively small condominium" (threeof the thirteen condominium units were rented and ten were owner-occupied) differed markedly from the commercial venture typified bya large apartment building or even a smaller two- or three-familytenement building, and the strict liability provision of section 51did not apply.

2:/ The disjunctive phrase "public or commercial" may be moreappropriate than the conj uncti ve phrase II commercial and public" asthe enumerated specific words preceding the word "building" seem tofall 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, 779N.E.2d at 650 fn.8, liThe rental of dwelling units in roominghouses, large apartment buildings or smaller multiple familytenements is the type of commercial enterprise involving thepublic, that could in a proper case invoke the strict liabilityprovisions of the statute i whether buildings used for such purposeare included within the ambit of section 51 as 'buildings' for thepurpose of attaching strict liability for State Building Codeviolations, or whether their primarily residential use wouldexclude 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 beenleft by other workers in violation of State Building Coderegulations which required cleanup and disposal of worksi te debris,the Supreme Judicial Court held, based on its past cases and thecanon of ej usdem generis, that an owner-occupied two- family home(in which the owner, who owned no other rental property at the timein question, lived on the first floor and rented the otherapartment to a tenant) was not a "building" within the meaning ofsection 51.

In the Banushi case, the Supreme Judicial Court noted, at 244fn.5, 780 N.E.2d at 23 fn.5, "Separately, we observe that theLegislature simply may have intended the word ' building' as asynonym for a 'manufacturing establishment.' There is no comma inthat portion of the definition that contains the phrase, manufacturing establishment or building.' Such an intent isconsistent with our decision today. ii

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 anapartment unit struck her head on a doorway header that was allegedto be defective, unsafe, and in violation of the State BuildingCode. As discussed, the issue of the statute's coverage wasii deferred ii and not decided. The Merloni case has no reportedsubsequent history.

In Hristoforidis v. Fisher, 17 Mass. L. Rptr. 574, 2004 WL1109626 (Fecteau, J., April 9, 2004), a worker who was performingexterior repairs without benefit of a building permit fell fromunsafe scaffolding that was in violation of the State BuildingCode. The Superior Court, relying on Glidden, ruled that there wasno causal connection shown between the accident and failure toobtain a permit, and (unlike Glidden where it was not decidedwhether the term "building" in section 51 includes an owner-occupied three-family house) ruled that a non-owner-occupied three-family residence was not the type of commercial enterpriseinvolving the public that would be covered by the strict liabilitystatute. The Hristoforidis case has no reported subsequenthistory.

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In Gifford v. Sears, Middlesex Superior Ct. No. 04-165A, 2005WL 2373847 (Connolly, J., August 12, 2005), mentioned above, atenant's guest fell down a stairway that had no railings and nolighting. The structure involved was an owner-occupied two-familydwelling with a one-bedroom rented apartment located above thegarage which was a separate structure. There, the Superior Courtjudge "deferred" the "building" issue (as well as the II fleeing afire" issue). The Gifford case has no reported subsequent history.

Of the seven reported appellate court cases (not including theFox case, where the plaintiff fell on a school building's step,landing and stairs), two are criminal cases, and five are personalinjury cases, all involving construction workers. Of the fivecivil cases, three involve temporary ladders or scaffolding, oneinvolves worksi te debris, and the other worksi te safety issues.None involve tenants or guests of residential premises or defectsof permanent housing structures . Five of the seven appellate casesestablish that section 51 does not apply to a single family house,or to a small condominium, or to an owner-occupied two-familyresidence. One case held that the statute did apply to awatchmen's cottage that was part of a commercial marina, but thatcase may be discredited. Another case involved an owner-occupiedthree-family house, but in that case the issue of whether the housewas a "building" within the meaning of the statute was not decided.

Of the three reported trial court cases, all are personalinj ury cases, one involving a construction worker and temporaryscaffolding, where it was ruled section 51 did not apply, and twoinvolving residential tenants' guests and permanent parts öfhousing structures, where the issue of coverage was deferred andnot decided. Of the three trial court cases, one case held thatthe statute did not apply to a non-owner-occupied three-familyresidence. In the other two cases, one involving an apartmentunit, and the other an owner-occupied two-family dwelling where therental apartment was a separate structure, the issues of coveragewere deferred and not decided.

Despi te the forty-year history of the statute, neither theplain language of the law nor the sparse case law interpreting itgives much guidance.

Somewhat helpful, although certainly not controlling, are theso-called "Mrs. Murphy

II exemptions of the civil rights laws whichprohibi 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 fromcovered places of public accommodation) i Fair Housing Act, 42U.S.C. §3603 (b) (1) (single-family home), §3603 (b) (2) (owner-occupied four-family dwelling). See also, with respect tointrastate commerce: Massachusetts Anti-discrimination law, Gen. L.

...

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c.151B §4 (7) (owner-occupied two-family dwelling), §4 (11) (3)(same), §4 (11) (1) (elderly or infirm person occupied three-familydwelling), §4 (11) (2) (temporary leasing of single family dwellingthat is owner's principal residence) The structure in this casefits within none of the "Mrs. Murphy" exemptions established by thecivil rights laws.

More analogous, although of course not dispositive, are thesimilar exemptions under the Consumer Protection Act, Gen. L. c. 93A,which prohibits unfair or deceptive acts or practices in trade orcommerce. Landlords of single family dwellings and owner-occupantsof two- and three-family dwellings are excluded from the class ofpersons 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-familyhome) i Billings v. Wilson, 397 Mass. 614, 493 N.E.2d 187 (1986)(owner-occupied two- family dwelling) i Sayah v. Hatzipetro, 397Mass. 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 livingoverseas). But see, Linthicum v. Archambault, 379 Mass. 381, 386-387, 398 N.E.2d 482, 487 (1979) (owner was "engaged in trade orcommerce

II in case brought under c. 93A §11 involving non-owner-occupied duplex). The class of persons who are excluded fromcoverage under Chapter 93A has not been further expanded in thepast ten years.

It is clear that the landlord owner in this case was II engagedin trade or commerce II wi thin the meaning of the Consumer ProtectionAct, Gen.L. c.93A §l(b) and §2(a). And in this case, althoughthree of the four units are residential, and only one isII

commercial II in the sense that it is used for a business that is

open to the public, the entire structure is II commercial" in thesense that the owner, who does not occupy any part of it, rents allfour units out, thus engaging himself and the building II in trade orcommerce. II

* * *

Whether or not strict liability ought to be imposed for all(or some) violations of the State Building Code is, of course, apolicy question to be determined by the Legislature. Whether ornot the Legislature has done so, with respect to the specificcircumstances of a specific case is, inevitably, a question for thecourts.

It is of course possible that the Legislature has determinedthat there should be no strict liability with respect to buildingsand structures such as the combined residential and commercial

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structure in the instant case, and, notwithstanding the ruling inthe 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 theterm "building" clearly would not include the structure in thiscase, which clearly is not a "place of assembly, theatre, specialhall, public hall, factory, workshop, or manufacturingestablishment. II Nor would it include any residential "building. II

However, neither of our appellate courts has so ruled. TheBanushi Court did state that the holding in the Duda case has beendiscredited, citing the Eakin and Santos cases. But the BanushiCourt did not discredit the Osorno case's dictum, at 618 fn.8, 779N.E.2d 650 fn.8, that distinguished a small condominium apartmentbuilding's use from the rental of dwelling units in rooming houses,large apartment buildings, or smaller multiple family tenements, asbeing the type of commercial enterprise involving the public thatcould invoke strict liability under the statute. As the Courtruled in Banushi v. Dorfman, 438 Mass. 242, 244, 780 N.E.2d 20, 23(2002), it is unlikely that the Legislature intended that thestrict liability provision of section 51 apply to small residencesfrom which only minimal rental income is derived. But it seemsunlikely also that the intent of the statute is to exclude from itscoverage any and all residential property no matter how large.

As mentioned above, the structure in the instant case consistsof three tenanted apartments located above a first floor commercialestablishment. The owner, who holds the property for commercialand investment purposes, rents all four units out and does notoccupy any space in the building. These facts readily distinguishthis case from any of the reported cases where the structure inquestion was ruled to be not a "building" under the strictliability statute.

It is true that the defective guardrail and its landing abovethe exterior stairway from which the plaintiff fell do not servicethe commercial establishment, and in fact service only two of thethree residential apartments. Because the guardrail, and itslanding and stairway, may not themselves have a commercial orpublic use, these facts argue in favor of excluding the premisesfrom the term "building" in the strict liability statute. However,nothing in the statute suggests that its coverage is determined bywhether a specific portion of the structure has a commercial orpublic use, rather than by whether the building as a whole has acommercial or public use and character.

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The question is hardly free from doubt, and the structure inthis case may well be at the outer margin of the class ofstructures that fall within the ambit of the term "building" in thestrict liability law. However, it is my opinion that the mixedresidential-commercial four-unit non-owner-occupied structure inthis case is II commercial

II and "public" enough to fit within theterm "building" in section 51.

It is my judgment that the appellate courts will not, at thisjuncture, view the word "building" to be a mere synonym for"manufacturing establishment II (per Banushi at footnote 5), thus toexclude any and all residential buildings from coverage under thestatute i and I hold that the the structure at issue in the instantcase has enough II commercial or public II use and character (perOsorno at footnote 8) to fit within the strict liability provisionof section 51.1./

The defendant's post-judgment motion fornotwithstanding the verdict or new trial is denied.

judgment

2. Costs

The plaintiff, who prevailed in the action on counts forcommon law negligence and for violation of the State Building Codeunder Gen. L. c .143 §51, has submitted an application for costsunder MRCvP Rule 54 (d) and (e) and Gen. L. c. 261 §1 and §13. Afterhearing, 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 feesand $312.70 for service of process fees. I allow $3,052.40 fordepositions, which I find were reasonably necessary. Of the $8,850

1./ i have considered the option of reporting the strictliability issue to the Appeals Court, in view of the unsettledstate of the law. I decline to do so, however, because neitherparty has so requested, and in my view a trial judge's curiosityand wish for appellate court guidance is not sufficientjustification for the judge to force an appeal.

The case, having reached the final judgment stage, is fullyappealable by the defendant as to any error in my rulings that thebuilding in this case is covered by the strict liability provisionof section 51. Equally so, the plaintiff (although he received thefunctional equivalent under the State Building Code verdict) isentitled to cross appeal any error in my jury instructions that afinding of negligence is required to support a finding of liabilityunder the habi tabili ty law.

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amount requested for expert witness fees, I allow $1,000 for theplaintiff's witness' attendance at his deposition, an equal $1,000amount for his deposition preparation time, and $500 which theplaintiff paid for the defendant's expert witness to attend hisdeposition. I allow $475 for the mediation services fee. Idisallow the remaining $ 7,019.45 requested by the plaintiff formedical records, photocopying, postage, expenses paid topredecessor counsel, and expert witness fees at trial. See,Waldman v. American Honda Motor ~ Inc., 413 Mass. 320, 597N.E.2d 404 (1992) (statutory limitation on taxable witness feesapplied to all witnesses including experts). Contrast, Linthicumv. Archambault, 379 Mass. 381,398 N.E.2d 482 (1979) (attorney'sfees and expert witness fees should normally be recoverable in ac.93A case) .

ORDER

The motion by the defendant for judgment notwithstanding theverdict or for new trial is denied. The motion by the plaintifffor costs is allowed in part and denied in part. The clerk willenter an amended judgment taxing costs in accordance with thisdecision.

February 10, 2012

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c1aw~'!~ ·David D. KermanAssociate Justice