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Jun 2014

Peter Kober successfully appealed a case involving Mass. Gen. Laws ch. 143, §51, which imposes strict liability on an “owner” or other party in control of a “place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building” for injuries caused by a violation of the state building code.  In Sheehan v. Weaver, __ Mass. __ (2014), the Supreme Judicial Court (“SJC”) clarified prior SJC and Appeals Court decisions regarding whether c. 143, §51 applied only to building code violations concerning fire safety and narrowed the types of “buildings” to which the statute applies.  Specifically, the SJC held that the statute applied to all building code violations, and not just to violations of the sections of the building code pertaining to fire safety.  More significantly, the SJC held that the statute does not apply to small-scale residential portions of a structure, even though the structure also contains a portion used for commercial purposes.

Facts.

The plaintiff was a tenant in a building that included two residential units and one commercial unit.  The plaintiff was injured when he came home late one night after becoming intoxicated.  He walked up two flights of exterior stairs to enter his apartment, and fell from the stairway after leaning against a railway, sustaining injuries.  The commercial portion of the building was rented to a chiropractor.  Patrons of the chiropractor did not utilize the stairway or railing where the accident occurred to access the chiropractor’s office.  The plaintiff sued the owner of the mixed commercial and residential structure for negligence and for strict liability under the statute, alleging building code violations.  The jury returned a verdict for the plaintiff on both theories, and the trial court judge denied a motion for judgment notwithstanding the verdict, in which the defendant argued in part that the statute did not apply in these circumstances.  The motion was denied, and the defendants appealed the portion of the denial relative to the interpretation of the statute.

The Statute applies to all building code violations.

The statute was enacted in its current form in 1972. Prior to that, the statute referred to portions of the building code relating to fire safety, and Massachusetts decisions interpreted the statute as applying only in that narrow circumstance.  The 1972 version of the statute refers more broadly to “any” provision of the building code.  In McAllister v. Boston Housing Auth., 429 Mass. 300 (1999), however, the SJC relied on a 1965 decision, Festa v. Piemonte, 349 Mass. 761 (1965), to interpret the statute, and in so doing held that the statute only applied to cases involving stairways and egresses intended for use to escape from fires.  McAllister, 429 Mass. at 304, n. 5.  In Sheehan, the SJC acknowledged that several lower courts had scrutinized the decision in McAllister, and overruled McAllister in holding that, per a plain reading of the statute, any building code violation can trigger the application of the statute.

Definition of building.

The more significant holding in Sheehan involves the interpretation of the types of structures applicable to the statute. The following structures are identified in the statute: “place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building”.  In prior decisions, the SJC has limited the final listed term, “building,” to the class of structures preceding it in the list, because if any “building” applied to the statute, then the list preceding the term “building” would be superfluous (per the doctrine of ejusdem generis).  Based on that doctrine, the SJC has, in prior cases, limited the class of applicable structures to buildings that are places of public or commercial use, places of assembly, and places of work, e.g., that the term “building” does not include single-family homes or owner-occupied two-family homes in which the owner rents one of the units.  Another appellate decision has held that “building” does not encompass a thirteen unit condominium, in which three units were rented and the others were owner occupied.  The SJC explained in Sheehan that the structures listed in the statute are all places in which a large number of people gather for occupational, entertainment, or other purposes.  This interpretation of the list of structures supports that the focus of the statute is on building code violations that pose a risk to a significant number of people, each of whom are ordinarily poorly positioned to determine whether the structure complies with safety requirements of the building code.    

In this case, the SJC was presented with a structure that had both a residential and commercial component – the residential apartments and the commercial space occupied by the chiropractor.  Faced with this mixed-use structure, the SJC held that where the structure at issue included both residential and commercial space, the statute does not apply to the residential space.  Since the injury in this case occurred in the residential portion of the building, the statute did not apply.  In so holding, the SJC acknowledged that the statute could apply to certain portions of a structure and not to others. 

The decision is important because, if the existence of some commercial component of a building could render the entire structure applicable to the statute, it would greatly enlarge the scope of strict liability to encompass virtually any premises liability case.  The decision also potentially creates a new area of relevant factual dispute: the determination of whether an accident has occurred in a commercial or public portion of a structure.41.66


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