The Commonwealth’s top court, the Supreme Judicial Court, gave landlords a bit of a break recently in Goreham v. Martins, 485 Mass. 54, (2020). The decision involves the “warranty of habitability” and the ways for tenants to recover for injuries sustained on their rented premises, including cases for people who slip and fall on snow and ice.
By way of background, an injured person has a claim “in tort”, that is, that someone’s negligence caused the injury. There are circumstances, however, when the remedy is contract or semi-contract based. For example, there is a “warranty of merchantability” attached to products. They have to be fit for the purpose intended. A table saw that does not have a guard, for example, can be found not to have met the warranty of merchantability, and resultant injuries can be compensable under a breach of warranty theory.
Similarly, the warranty of habitability assures that a rented property is fit for human occupation. If a ceiling falls on your head, you have a claim for breach of the warranty of habitability even though the landlord lacked notice of the hazard thereby making a negligence claim very difficult.
In Goreham, the tenant of a three unit apartment house exited a fire escape that led to an icy driveway. He slipped on the ice, severely injuring his ankle. He could have gone out the front door and thereby avoided the ice, but he commonly utilized the fire escape which more directly serviced his unit. The jury found the defendant landlord negligent, so for a moment the plaintiff/tenant was happy. Unfortunately, his joy was short lived. The jury next announced that they found the plaintiff 53% comparatively negligent, which means he was 53% responsible. If a plaintiff is more than 50% responsible, he/she does not get anything.
Undeterred, his attorney argued that the landlord had breached the warranty of habitability. This is important because with these contract claims, comparative fault does not apply. So, even if the injured person was partially responsible, he is still able to recover. This has been an open question in Massachusetts. The trial judge disagreed with the tenant. He appealed.
The SJC avoided the issue of comparative negligence and its ramifications on breach of warranty of habitability. It determined instead that a slip and fall on snow and ice did not implicate the warranty even if the landlord unreasonably failed to clear snow and ice from a common area. Relief is available, therefore, only under a negligence claim.
This is not such a blow to plaintiffs as it may appear. In 2010, the Supreme Judicial Court eliminated a nonsensical historical distinction between “natural” and “unnatural” accumulations of ice and snow that immunized even landowners who never shoveled. That means that even if a landlord didn’t shovel for weeks after a snowstorm, an injured person could not be compensated for an injury. So negligence cases for injuries from slipping on ice became easier.
The SJC in Goreham noted that, “[T]he scope of the warranty of habitability includes only the physical maintenance and repair of a dwelling unit.” As a practical matter, a tenant can see conditions outside of the apartment, (for example ruts in paved areas, potholes, ice), but not hidden conditions inside the dwelling (slow roof leaks rotting the ceiling, poor quality construction that allows railings to give way). Therefore, this case simply makes sure that comparative negligence applies to snow and ice cases, or other injuries resulting from something that happens outside the building. And this also puts off consideration of applying comparative negligence to warranty of habitability cases.
It would be hoped that the decision in Goreham will result in some lowering of insurance liability costs to landlords, and ease pressure on rents, but don’t hold your breath.
There is an interesting and disturbing aspect of Goreham that gets lost in the legal issue. Plaintiff dislocated his ankle, fractured his fibula, underwent multiple surgeries, and still had pain. The jury assessed damages at $25,000.00. This is low and unless Mr. Goreham had the most charitable medical providers in the history of the world, probably barely covered medical costs.