What Property Owners, Managers and Trustees Of Mixed-Use Buildings Need to Know About Changes to Massachusetts’ Strict Liability Law

By Howard S. Goldman, Esq.

As recently reported in Massachusetts Lawyers Weekly, a Massachusetts Housing Court Justice recently held in the case of Sheehan v. Weaver that an owner of a structure with three residential apartments above a commercial unit could be held strictly liable for injuries suffered by an intoxicated residential tenant who fell off a balcony due to a defective guardrail under the State Building Code (M.G.L c. 143, Sec. 51) (“Strict Liability Statute”).

So what does the Sheehan case mean to property owners, managers and trustees of mixed use buildings? This ruling appears to have expanded the potential liability of the owner of a mixed residential-commercial non-owner-occupied structures because the court ruled that mixed-use structures were sufficiently “commercial” and “public” to be considered a “building” within the meaning of the State Building Code’s Strict Liability Statute.

Under the Strict Liability Statute, the owner of a building with structural elements found to be in violation of the State Building Code is automatically liable for any injuries incurred by any individual on the property that are found to be on account of the State Building Code violation. In the past, Massachusetts Courts have interpreted the Strict Liability Statute to apply to commercial establishments only. Specifically, in 2002, the Supreme Judicial Court ruled in Banushi v. Dorfman that it was unlikely that the state Legislature intended the strict liability provision to apply to small residences from which only minimal rental income is derived.

In expanding the scope of the Strict Liability Statute, Housing Court Justice David D. Kerman recognized that the Legislature likely did not intend for the provision to apply to smaller residential buildings, but stated his belief that the Legislature did not intend to exclude any and all residential property from the statute. In addition, the Judge stated that the Strict Liability Statute’s applicability to a particular building is not determined by whether a specific portion of the structure has a commercial or public use, but rather than by whether the building as a whole has a commercial or public use and character. In essence, any commercial presence in a building may now be enough to bring the building within the Strict Liability Statute.

Not only does the Sheehan case expose property managers, owners and trustees to strict liability for building code violations that result in personal injury in the commercial or mix use real estate context, it also increases the amount of damages that property owner defendants will be required to pay for injuries in lawsuits because the landlord will be responsible for the full extent of the injuries regardless of the injured party’s improper actions leading up to the injury. Previously, under a claim for negligence, the court would review the plaintiff’s own negligence leading up to the injury and reduce the amount of their recovery by a percentage based on their own negligence. Now, if a plaintiff can prove that the commercial or mix use real estate was in violation of the State Building Code, the Strict Liability Statute will apply and the court shall not assess the plaintiff’s potential contributory negligence. In other words, injured parties are now able to recover the full extent of their damages under the protections of the Strict Liability Statute even though the amount of their damages in the past may have been reduced if the property owner demonstrated that the tenant’s actions contributed to his injury.

Because this ruling vastly expands the scope of the Strict Liability Statute, it is likely that the case will be appealed. However, until a possible future appeal occurs, property owners, managers and trustees have additional incentive to maintain their premises on a regular basis to ensure that there are no Building Code violations which could lead to harm to tenants or to their guests, which would trigger the imposition of strict liability.

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, lenders, developers and contractors. He is an active member of the Massachusetts 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.