SJC REJECTS STRICT LIABILITY FOR BUILDING CODE VIOLATION IN RESIDENTIAL STRUCTURES BUT BROADENS LIABILITY FOR COMMERCIAL BUILDINGS

Published on: January 22, 2015

Two years ago, Northeast Housing Court Judge David Kerman issued a ruling that an owner of a mixed used building was “strictly liable” for an intoxicated tenant’s fall through a defective porch guardrail in the case of Sheehan v. Weaver.

The building contained three residential apartments located above a commercial establishment. None of the apartments were owner-occupied. After a night of drinking, one of the tenants fell through a porch guardrail suffering serious injuries. The connection of the guardrail to its post gave way because it was in violation of the Building Code.

After a four-day trial in the Housing Court, a jury found for the tenant on the negligence claim, awarding approximately $145,000 after a 40% reduction for the his own fault. The jury also found the landlord strictly liable, assessing $242,000 in damages. With the strict liability, the landlord was on the hook for the full $242,000 verdict without consideration of the tenant’s own fault. The case went up to the SJC on appeal.

Interpretation of Building Code Statute

The Massachusetts State Building Code provides for strict liability, that is, liability without any consideration of the comparative fault of the injured (in other words they could not take into account the intoxicated state of the injured party for damage purposes), for any personal injuries caused by a building code violation at any “place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building.” The SJC ultimately agreed with the landlord that the structure where the tenant was injured was not sufficiently commercial to be considered a “building” within the meaning of the Building Code’s strict liability provision despite the fact that it was a mixed use building. The court held that “what commercial and public structures listed in §51 have in common is that they are places in which a large number of people gather for occupational, entertainment, or other purposes.”

The take away is that owners of residential rental property will no longer have to worry about getting hit with a substantial strict liability award for injuries caused by building code violations. However, this does not mean that property owners should not take care of their buildings. They must, and they can still get hit with lawsuits for injuries occurring on their property due to failure to repair or maintain the premises in good condition or simple negligence.

However commercial building owners should beware.  Previously, the Supreme Court had held that the strict liability only attached to building code violations affecting fire safety.  This case expressly overruled that decision.  Going forward strict liability will attach to all building code violations in commercial buildings, not just those affecting fire safety.

To read the case [click here].