As recently reported in Massachusetts Lawyers Weekly, the Massachusetts Superior Court recently held in the case of Malonson v. Arsenault that an apartment guest, who was injured on the premises, could sue the landlord under Chapter 93A, which is the Commonwealth’s Consumer Protection Statute.

So what does the Malonson case mean to property managers?  The ruling appears to have expanded the potential liability of any party who stands in the same shoes as the owner of the property, including property managers, under Chapter 93A. Any individual injured while a lawful visitor on the premises now has a legitimate claim against the property manager under 93A.  Obviously, the courts will not require a contractual or business relationship between the injured party and the property manager.  In Melonson, it was enough that the injury was the “direct result” of an unfair or deceptive act.  The court reasoned that there is nothing in the statute that would limit causes of action under Chapter 93A to tenants, stating that “the evolving trend of premises liability law in Massachusetts and the recognition that the question of overriding importance in this context is whether the landlord/landowner acted reasonably under the circumstances.”

Thus, although Section 2 of Chapter 93A defines “trade” and “commerce” as any transaction involving advertising, selling, renting, leasing, distributing, or contracting to sell any “article, commodity, or thing of value,” the decision in Malonson apparently ignores this definition and relies upon Section 9 of Chapter 93A that grants a cause of action to “Any person . . . who has been injured by another person’s use of employment of any method, act or practice declared to be unlawful.”  In Melonson, the unlawful activity giving rise to the injury was renting an apartment that was not in a habitable condition, as required by the Code of Massachusetts Regulations.

Not only does the Malonson case provide for another cause of action for injured persons, in addition to the standard common law negligence claim, it also exposes property managers to pay higher damage awards to the plaintiff.  Chapter 93A, which is designed to deter future violations, provides the court the discretion to award double or triple the actual damages determined at trial, plus the plaintiff’s costs of bringing the lawsuit (which may include the expert witness testimony of a treating physician or orthopedic surgeon), and attorney’s fees.

Consequently, property managers have additional incentive to maintain their premises in a reasonably safe condition in light of all the circumstances, including the likelihood of injury to others, the burden and expense of avoiding the risk, and the duty to warn visitors of any unreasonable dangers that the property manager is, or should be, aware.  If a court deems that an unreasonable danger gave rise to any injury to any lawful visitor, the property manager may be exposed to Chapter 93A liability.

So what is the definition of “unreasonable danger?”  To be legally responsible for injuries that occur on the premises, the property manager either:

• must have caused the dangerous condition (i.e. broken step or railing, worn or torn carpet, slippery surface); or

• must have known of the dangerous condition but did nothing about it; or

• should have known of the dangerous condition because a “reasonable” property manager taking care of the premises would have discovered the condition and corrected the problem.

Property managers are not obligated to maintain their premises completely free of risks. Indeed, the facts in the Melonson case were such that the premises was deemed “uninhabitable.” However, property managers must ensure that the environment is safe for a person who exercises reasonable care under the circumstances.  Although the following cases arise in the context of places of business, rather than residences, they should give the prudent property manager a good idea of what is expected of him or her to ensure the safety of any visitor to private property.

In the recent case of Fontaine v. Doe Family Trust, II, et al., for example, the court held that a restaurant was liable for injuries sustained by the plaintiff when she slipped and fell on a melted ice cube.  Because an employee spilled ice onto the floor and failed to clean up the spill, the restaurant’s negligence resulted in the plaintiff’s injuries when she slipped on the water that was once an ice cube.  Similarly, in the Massachusetts case of Smith v. Burger King Corp., the defendant corporation was found guilty of negligence for stacking chairs along a frequently used aisle, placing reasonably careful customers, in danger of tripping.

However, Massachusetts law states that the duty to protect visitors does not extend to dangers that would be obvious to persons of average intelligence.  Take the recent case of DiMauro, et. al. v. The Stop & Shop Companies, Inc., et. al., where the plaintiff slipped and fell at the defendant’s salad bar.  The court held that the plaintiff was more than 50% negligent, which barred her from any recovery of damages, because the defendant responded to a salad dressing spill with reasonable precautions.  The defendant’s employees posted a warning sign, while mopping up the spill.

Here’s a quick checklist to ensure that any accidents that occur on the property you manage are not caused by your negligence:

• Repair any torn, broken or bulging carpet or flooring.

• Monitor the floors on rainy and snowy days, which lead to wet and slippery floors.

• Implement daily procedures for examining and maintaining the premises.  Have these procedures written down and keep a checklist verifying regular inspections.

• Post warning signs and, if possible, erect barriers around the dangerous areas, if it is a condition that cannot be corrected immediately.

• Keep all aisles, staircases and hallways free from obstruction.

• Ensure that all staircases, hallways and means of ingress and egress are adequately lit.

If you follow these suggestions, and are later sued for negligence and violation of Chapter 93A, you will have a strong defense that you are a careful property manager, who is mindful of keeping all visitors to the premises safe.

About the Author

Attorney Howard S. Goldman is the founding partner of the law firm of Goldman & Pease, 160 Gould Street, Needham, MA 02494 (781) 292-1080.  Mr. Goldman concentrates his practice in real estate law and litigation, representing property manager, condominium associations, developers and contractors. He is an active member of the Massachusetts, Boston, and Rhode Island Bar Associations in his field and is also an active member of CAI and IREM, where he frequently lectures and writes columns affecting the real estate industry.

The Greater Boston Massachusetts lawyers at Goldman & Pease LLC concentrate in business law, real estate law, condo law, civil litigation, and estate planning and serve the greater Boston metro region including Alston, Arlington, Belmont, Brighton, Brookline, Cambridge, Canton, Dedham, Dover, Milton, Natick, Needham, Newton, Norwood, Waltham, Watertown, Wayland, Wellesley, Weston, West Roxbury, Westwood, and all of Massachusetts.