Opinion
14-P-1157
06-09-2015
MARISA T. BURTON GRAF v. EDWARD A. MAURER, individually and as trustee.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from judgments entered in the Superior Court dismissing all of her claims following a jury trial. The plaintiff pleaded, in twenty-three counts, claims of negligence, breach of the implied warranty of habitability, and violations of G. L. c. 186, § 19, and G. L. c. 93A, § 9, against Edward A. Maurer, her former landlord, concerning three incidents in late 2007 and early 2008.
The plaintiff also filed a motion for a new trial but does not appeal the denial of that motion.
Maurer was the plaintiff's landlord at a two-apartment house in Millis in 2007 and 2008; the plaintiff lived in the second floor apartment. Maurer signed the lease as "trustee," probably in reference to J and E Realty Trust, which once owned the house before Maurer transferred it to himself individually. 840 Main Street, another company of which Maurer is trustee, owned an office building next to the parking lot where the plaintiff parked her car; the parking lot is situated between the house and the office building.
Specifically, the plaintiff alleged that she fell twice on black ice in the parking lot next to the house, and fell once on an exterior stairway leading from her apartment to the lot. The judge directed a verdict on the habitability and c. 186 claims, the jury returned a verdict for the defendants on the negligence claims, and the judge, who had reserved the c. 93A claims for a bench verdict, entered judgment on those claims for the defendants. On appeal, the plaintiff argues that the judge incorrectly excluded portions of the State Building Code, incorrectly directed a verdict on the aforementioned warranty claims, and incorrectly entered judgment for the defendants on the c. 93A claims. We affirm.
Evidentiary ruling. Here, we discern no abuse of discretion in the judge's decision to exclude portions of the State Building Code proffered by the plaintiff. See N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013) (we review a trial judge's evidentiary decisions under an abuse of discretion standard). The plaintiff never articulated to the judge prior to the judge's ruling why or how the Sixth Edition of the State Building Code, 780 Code Mass. Regs. §§ 100 et seq. (2005) (hereinafter, "the building code" or "the code"), was applicable to the exterior stairway at issue and, in fact, conceded that the house, and the stairway, was grandfathered because the house had been built around 1900, thus rendering the building code inapplicable, by its own terms. See Matteo v. Livingstone, 40 Mass. App. Ct. 658, 662 (1996) (code does not apply to buildings that existed prior to its effective date in 1975, unless there have been alterations invoking code provisions relating to repairs and alterations of existing buildings); 780 Code Mass. Regs. § 102.5.2 (2005) (existing buildings must comply with applicable regulations in effect at time of construction or alteration). In addition to effectively conceding this point, plaintiff's counsel informed the judge that he wanted to admit portions of the code to establish only that Maurer had a duty to maintain the stairway in a safe and reasonable manner, but this was no different from the standard that the judge ultimately instructed the jury to use in considering the plaintiff's negligence claims. See 780 Code Mass. Regs. § 103.1 (2005) (all existing buildings must be maintained in a safe, operable, and sanitary condition). In other words, the plaintiff's ostensible reason for admission of the code was rendered duplicative in light of the judge's standard of care jury instruction.
Although Maurer testified that he made improvements to the house, and added a handrail to the stairway at issue in 2005, the plaintiff did not argue below, nor does she argue now, that the building code became applicable to the house on account of the renovations and improvements. Therefore, we need not address that issue.
Ultimately, it is clear from the record that the plaintiff sought introduction of the building code to show that, under the Sixth Edition, stairways were required to have a riser height of no more than eight and one-quarter inches, and the stairway at issue had riser heights of eleven and twelve inches. But having failed to establish that the Sixth Edition building code was applicable to the stairway, the plaintiff was not entitled to admission of this evidence. The evidence was not relevant, and, in fact, could have given jurors the mistaken impression that the stairway was in violation of a code that actually did not apply to it.
We also note that the plaintiff's expert testified that the riser heights of the stairway were "well beyond" the accepted standard of care. Thus, the plaintiff was essentially able to offer equivalent evidence of the building code standards, despite the judge's ruling; in addition, the expert appears to have been free to elaborate on the specifics of the accepted standard of care in relation to riser height, without referencing the code, but simply chose not to.
It appears from the record that the expert based his opinion on the building code's standards but without attribution to such, per the judge's ruling.
Additionally, plaintiff's counsel referenced the building code in his opening statement, even asserting that the riser heights of the stairway at issue were in violation of the applicable standard, despite that the judge had not yet ruled on admissibility of the building code ("The problem here is that this first step measures between 11 and 12 inches in height. The regulation is that these steps are -- the height of the riser is to be no more than eight and a quarter inches").
Directed verdict. "Whether the judge properly directed a verdict is a question of law." Hubert v. Melrose-Wakefield Hosp. Assn., 40 Mass. App. Ct. 172, 176 (1996). On appeal of a directed verdict, we ask "whether 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [plaintiff].'" A.C. Vaccaro, Inc. v. Vaccaro, 80 Mass. App. Ct. 635, 641 (2011), quoting from Global Investors Agent Corp. v. National Fire Ins. Co. of Hartford, 76 Mass. App. Ct. 812, 827 (2010).
The plaintiff challenges the entry of a directed verdict only on her breach of implied warranty of habitability claims, not with respect to her c. 186 claims. Additionally, she challenges the verdict only as to her alleged fall on the stairway, not the alleged falls in the parking lot.
During the rental of a house for residential purposes, "there exists an implied warranty of habitability requiring that the premises are fit for human occupation. This means that at the inception of the rental there are no latent [or patent] defects in facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire term in a condition which makes the property liveable." Jablonski v. Casey, 64 Mass. App. Ct. 744, 746 (2005) (quotation and citations omitted). The plaintiff is required to show a "material and substantial breach of the warranty, representing a significant defect in the property itself." Ibid.
The plaintiff argues that (1) the judge's exclusion of the building code precluded her from presenting sufficient evidence on her breach of the warranty of habitability claims, and (2) the judge applied the incorrect legal standard in directing a verdict on the warranty claims, suggesting that a showing of "literal[] uninhabitab[ility]" was required. The first argument is a reiteration of the one discussed and rejected above. As to the second point, the judge's ruling did not indicate an incorrect interpretation of the law. Rather, the judge determined that the exterior stairway did not affect the basic habitability of the apartment. This determination is supported by the record and by legal precedent.
Even if the stairway were to be considered vital to the leasehold premises, which we need not decide, the judge reasonably determined that the alleged defects of the stairway -- a high riser height, and a slight tilt to the stairs -- did not amount to a breach of the habitability of the premises. The implied warranty of habitability applies to significant defects in the property itself. McAllister v. Boston Hous. Authy., 429 Mass. 300, 305 (1999), citing Berman & Sons v. Jefferson, 379 Mass. 196, 201-202 (1979). In McAllister, supra at 305-306, entry of a directed verdict based on the allegation that the implied warranty of habitability was breached by a failure to remove snow and ice from stairs was affirmed as proper. Examples of defects held to be "significant" include those in Cruz Mgmt. Co. v. Thomas, 417 Mass. 782, 787 (1994) (apartment infested with cockroaches, mice, and rats, lacked adequate heat, hot water, fire escape, had unsanitary common areas and defective smoke detector, windows, and wiring); and Simon v. Solomon, 385 Mass. 91, 93, 96 (1982) (water and sewage repeatedly flooded apartment). Here, the stairway was equipped with a "sturdy" handrail, and the plaintiff offered no evidence that the stairway had been found to be in violation of any applicable building or sanitary code.
In addition, any defect in the stairway clearly did not affect the plaintiff's opinion of the apartment itself, as she sought a lease renewal even after the alleged stairway fall, and even attempted to sign a lease renewal form intended for the first floor tenant. In fact, the plaintiff only vacated the apartment, long after her lease had lapsed, upon payment from Maurer. Although evidence suggested that the stairway, built around 1900, was not in accordance with modern standards of care regarding riser height, there was no evidence to suggest that it constituted a significant defect affecting the habitability of the apartment. Compare Cruz Mgmt. Co. v. Thomas, supra; Simon v. Solomon, supra. Simply put, there was no evidence showing that the premises, including the stairway, were not "fit for human occupation." See Boston Hous. Authy. v. Hemingway, 363 Mass. at 199.
To the extent that the plaintiff brings a claim for a breach of the warranty of habitability against the owner of the commercial building adjacent to that in which she lived, since it was not a place of habitation at all, and she makes no claim that there was any defect in its structure, a required finding of no liability on this count was amply supported in law and fact.
Bench finding. Finally, because the judge correctly directed a verdict against the plaintiff's breach of warranty claims, we likewise determine that the judge correctly entered judgment against the plaintiff on her c. 93A claims, given that the c. 93A claims were derivative of the warranty claims.
Judgments affirmed.
By the Court (Fecteau, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 9, 2015.