Case Law Update: Chapter 93A and the Building Code
The Supreme Judicial Court held last week that violations of the Massachusetts building code may form the basis for liability under the Consumer Protection Statute, General Laws Chapter 93A. In Klairmont v. Gainsboro Restaurant, Inc., the SJC affirmed a judge’s finding of liability, holding that the defendant bar could be liable for the death of a college student who tumbled down a set of cellar stairs that violated multiple sections of the building code.
The stairs in question led from a back hall down to a cellar used for storage, and had been constructed in the early 1980s without obtaining required building permits. The plaintiffs produced evidence that the stairs did not comply with several applicable sections of the building code, including the lack of a self-closing door, a landing at the top of the stairs, specific riser and tread dimensions, and a hand rail. A kitchen manager at the restaurant had complained to the owner that the stairs were dangerous, and that both she and a sales representative had fallen on the stairs.
The plaintiffs’ son, a student at Northeastern, had apparently entered the back hallway to find a quiet place to take a phone call. An employee found him a short time later at the bottom of the stairs with a fractured skull and a brain bleed, which proved to be fatal. A jury found the bar negligent, but that the negligence did not cause the young man’s death; the judge, as permitted by G.L. c.93A, decided the causation question in favor of the plaintiffs.
While finding that not every building code violation would serve as a basis for liability under G.L. c.93A, the Court held that code violations that were “unfair or deceptive acts” that occurred in the course of trade or commerce might warrant recovery. The Court noted that the defendants had knowingly violated the building code for more than 20 years, thereby creating a hazard in a place where alcohol is served.
The application of 93A, with its potential for multiple damages and attorney’s fees, is a powerful weapon for plaintiffs in premises liability cases. While the SJC was careful to note that only a limited class of building code violations would rise to the level of 93A violations, in appropriate cases, a 93A claim will give the plaintiff important options to a traditional negligence action. This remedy has long been available to plaintiffs in other types of personal injury claims, such as defective products.
An interesting feature of Klairmont is that the judge found in favor of the plaintiff after a jury had rejected their negligence claim. This is permitted because the judge, who is the factfinder in the 93A claim, is not bound by the jury’s decision, and is free to make her own, in this case contrary, factual findings. This result underscores what many experienced plaintiff’s lawyers have known for years–that jury-waived trials are not always to be feared, as many judges have not fallen prey to the tort reform propaganda that has infected many jury pools.
Klairmont also contains an extensive discussion of what damages may be recovered on the 93A claim, which will be the subject of a post later this week.
The Supreme Judicial Court’s decisions are available on its public website.