Opinion
11-P-2012
12-12-2012
SERGIO ALMONTE v. DAVID J. BERTON & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff commenced this action in the Housing Court alleging violations of the lead paint act, G. L. c. 111, §§ 189A, et seq., interference with quiet enjoyment, G. L. c. 186, § 14, and violations of G. L. c. 93A (two counts). Almonte, a minor suing through his guardian and next friend (grandmother), appeals from a summary judgment entered by a Housing Court judge dismissing all of his claims arising from alleged lead poisoning received in an apartment owned and/or managed by the defendants. Largely for the reasons set forth by the motion judge, we affirm.
Background. Almonte moved into the apartment with his grandmother on March 18, 1995, and was found to have elevated levels of lead in his blood on August 16, 1995. As a result, the defendants moved the plaintiff into a new unit and thereafter fully deleaded the apartment. It is undisputed that in 1993 the defendants received a letter of lead inspection compliance. A certified lead inspector examined the apartment for dangerous levels of lead and did not find any violations. The compliance letter indicates that Massachusetts law requires only that certain surfaces are free of lead paint; that the inspection does not mean the property is free of lead paint; and that the property will remain in compliance only so long as there continues to be no peeling, chipping, or flaking lead paint. The summary judgment record indicates that it was the defendants' practice to inspect each unit prior to the arrival of a new tenant and if necessary, to repair any peeling or chipping paint. However, in this case, the defendants did not specifically remember inspecting the apartment prior to the plaintiff's arrival. At her deposition, the grandmother testified that while she noticed paint chips falling off the walls during her tenancy, she did not notice the chips before she moved into the apartment. She also testified that she did not complain to the defendants about the paint chips at any point during her tenancy.
On the defendants' motion for summary judgment, the Housing Court judge determined, as the parties had conceded at hearing, that since the defendants had received a letter of compliance, strict liability under the lead paint statute did not apply. He therefore also determined, as the parties further agreed, that in order to hold the defendants liable under the lead paint law, the plaintiff must show that the defendants breached a duty of 'reasonable care.' See G. L. c. 111, § 199(a), as amended by St. 1993, c. 482, § 16. And, similarly, the judge determined that in order to make out a violation of the quiet enjoyment law, the plaintiff must demonstrate negligent conduct on the part of the defendants. See Al-Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997) (violation of lead paint statute alone insufficient; must have proof of knowledge of risk and of negligence on part of landlord). The judge accepted the defendants' testimony as to their routine business practice of inspecting units prior to the arrival of a new tenant as sufficient evidence that the defendants conformed to that practice with respect to the apartment at issue. In the absence of any contrary evidence, the judge ruled that the plaintiff could not establish negligence on the part of the defendants.
As to the G. L. c. 93A claim, the judge rejected the plaintiff's contention that the defendants violated 940 Code Mass. Regs. § 3.17(1)(a)(1) (1993), the Attorney General's regulation prohibiting as an unfair or deceptive act the renting of a 'dwelling unit which, at the inception of the tenancy . . . contains a condition which amounts to a violation of law . . . .' The judge ruled that since the defendants received a letter of lead compliance for the apartment and were not negligent in their maintenance of the unit, he could not find the defendants to have committed a 'violation of law' under the regulation.
Discussion. Our review of a decision to grant summary judgment is de novo. See Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215 (2003). 'The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.' Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
On appeal, the plaintiff essentially argues that the judge erred in determining that certain facts were undisputed. In particular, the plaintiff contends that it was error for the judge to rely on testimony regarding the defendants' business practice of inspecting units to show that the apartment at issue was so inspected. He also argues that the judge failed to acknowledge countervailing testimony of the grandmother that there was flaking paint in the unit; however, the plaintiff omits the portion of the grandmother's testimony stating that she did not notice any flaking paint when she moved into the unit. The plaintiff argues that because the chips were falling on the floor during the short-term tenancy, they must have been flaking prior to the commencement of her tenancy. The plaintiff's argument ignores the fact that the evidence is undisputed that there was no paint seen to be peeling before the tenancy; the grandmother's testimony that paint was later peeling was not sufficient to create a disputed issue of fact to the contrary.
As to the G. L. c. 93A claim, the plaintiff argues that the judge erred as a matter of law when he determined that the presence of lead in the apartment was not 'a condition which amounts to a violation of law,' as defined by the Attorney General's regulation. The plaintiff's argument is, in essence, an attempt to apply strict liability to a landlord for the presence of lead, notwithstanding the provisions of the lead paint statute and regulations eliminating strict liability when, as here, a landlord has received a certificate of compliance. The Attorney General's regulation cannot stand for this proposition; instead, the Housing Court judge correctly interpreted the regulation.
Judgment affirmed.
By the Court (Cohen, Katzmann & Wolohojian, JJ.),
By his guardian and next friend, Paula Garcia.