A recent ruling from Justice Kerman of the Northeast Housing Court, Goreham v. Martins, (No. 11-CV-0250, February 14, 2018), contains three holdings of potential interest to the defense bar. First, Justice Kerman held that the standard for personal injury claims in the context of breach of warranty of habitability is negligence rather than strict liability. Second, he held that although comparative negligence is not a defense to a claim of breach of warranty of habitability, recovery will be barred where a plaintiff’s actions constitute unreasonable use or misuse of a premises. Third, he held that while a showing of negligence is sufficient to sustain a claim of violation of the covenant of quiet enjoyment, comparative negligence is available as a defense where there is no showing of reckless, wilful, or intentional conduct by the landlord.
The plaintiff, Robert Goreham, a longtime resident of a three-family home owned by the defendant, Jose Martins, slipped and fell on an icy driveway after exiting the building via the rear stairway while traversing the driveway to reach the sidewalk. The plaintiff chose this course even though there was also a second exit from his unit which led directly to a sidewalk. The plaintiff did not argue that he was unaware of the icy conditions. As a result of his fall, the plaintiff sustained significant injury to his ankle. He brought claims for violations Chapter 93A, Chapter 143 §51, common law negligence, breach of common law implied warranty of habitability, and violation of the covenant of quiet enjoyment under Chapter 186 §14. The first two claims were dismissed prior to trial; the last two were reserved by Justice Kerman until after trial. On the claim of negligence, which went before the jury, the jury concluded that while both landlord and tenant were negligent, the landlord’s negligence amounted to only 47 percent, while the tenant’s was 53 percent.
From these facts, Justice Kerman reached three interesting holdings in the questions he reserved for after trial. First, while strict liability applies to economic loss claims in the context of breach of warranty of habitability, cases discussing breach of warranty of habitability have not previously reached the question of personal injuries. In Scott v. Garfield, the Supreme Judicial Court noted that “Where a tenant seeks to recover for economic loss under the warranty of habitability, we have held that the applicable standard is one of strict liability, rather than one of negligence (which would require that the landlord had notice of the defect).” Scott v. Garfield, 454 Mass. 790, 796, n. 8 (2009), citing Berman & Sons v. Jefferson, 379 Mass. 196, 198-204 (1979). However, the court in Garfield noted that the standard for recovery for physical injuries remained an open question. In Goreham, Justice Kerman held that in order to establish a landlord’s liability for personal injuries due to a breach of warranty of habitability, a finding of negligence is required. Goreham, Slip. Op. p. 1, citing Garfield, 454 Mass. at 796, n. 8; RESTATEMENT (SECOND) OF PROPERTY (LANDLORD AND TENANT) §17.6 (1977).
Second, Justice Kerman imported the concept of “unreasonable misuse” from products liability to premises liability. In Garfield, the Supreme Judicial Court noted that the “inapplicability of comparative negligence as a defense to a breach of warranty of habitability claim [this inapplicability] may not relieve a tenant or a lawful visitor of his or her legal responsibility to act reasonably toward a defect on the premises.” Garfield, 454 Mass. at 795, n. 7. Citing Correia v. Firestone Tire & Rubber Co., the Supreme Judicial Court further pointed out that “consumer’s own negligence does not prevent recovery except where a consumer unreasonably uses [a] product that he knows to be defective and dangerous.” Correia, 388 Mass. 342, 353 (1983). In other words, in a products liability context, the court considers only the product in question unless the plaintiff’s use has been unreasonable such that it defeats strict liability. In Goreham, Justice Kerman found that because the plaintiff was familiar with the premises in poor weather conditions, his use of the rear entrance was an unreasonable misuse of the premises. This unreasonable misuse, in Justice Kerman’s conclusion, defeated strict liability and barred the plaintiff’s recovery for his injuries, just as an unreasonable misuse bars recovery in an implied warranty of merchantability claim under Correia.
The introduction of the concept unreasonable misuse into implied warranty of habitability cases presents an interesting avenue for preventing recovery in certain circumstances. In the products liability context, courts have concluded that where a use is unreasonable, “the user is denied recovery, not because of his contributory negligence or his assumption of the risk but rather because his conduct is the proximate cause of his injuries.” Colter v. Barber-Greene Co., 403 Mass. 50, 60 (1988) (emphasis added). Applying Massachusetts law, the First Circuit has concluded that “to establish a ‘knowing and unreasonable use’ defense, the defendant must show not only that the plaintiff used the product voluntarily and unreasonably, but also that the plaintiff subjectively appreciated the danger” in doing so. Allen v. Chance Mfg. Co., 873 F.2d 465, 473 (1st Cir. 1989); Venturelli v. Cincinnati, 850 F.2d 825, 830 (1st Cir. 1988). In Goreham, the plaintiff knew the driveway was likely to be treacherous, and chose to traverse it despite the fact that a demonstrably safer route was available to him. He thereby engaged in unreasonable conduct which he knew could be dangerous.
Finally, although the decision in Goreham does not describe the basis of the plaintiff’s quite enjoyment claim, Chapter 186 §41 provides, in relevant part, “…any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant… shall [in addition to criminal penalties] also be liable for actual and consequential damages or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee…” M.G.L. c. 186 §14. It is well established that this statute does not require intentional conduct on the part of the landlord for liability to attach. “It is not necessary to recovery that the landlord intended to violate the covenant. Rather the landlord’s conduct, and not his intentions, is controlling …liability will be imposed whenever the natural and probable consequence of [the] landlord’s action [is] interruption of the tenant’s rights.” Lowery v. Robinson, 13 Mass. App. Ct. 982, 983 (1982) (internal quotations and citations omitted); see also Simon v. Solomon, 385 Mass. 91, 99-104 (1982); McAllister v. Boston Housing Authority, 429 Mass. 300, 301 (1999).
Thus, Justice Kerman held that, where liability for a violation of Chapter 186 §14 is based on negligence, comparative negligence is available as a defense. Following the Court’s reasoning in Goreham, where a tenant’s own negligence exceeds that of a landlord in a breach of the statutory covenant of quiet enjoyment claim, the tenant is unable to recover. Not only is the tenant precluded from recovering actual damages and consequential damages under the statute, he is also barred from recovering costs and attorney’s fees. This defense can therefore be a valuable tool where a tenant makes claims under Chapter 186 §14.
Overall, this decision, in addition to requiring a showing of negligence for recovery for personal injuries resulting from a breach of the implied warranty of habitability, also precludes recovery where the plaintiff’s own actions amount to an unreasonable use or misuse of the leased premises. Further, it raises the possibility that a plaintiff’s own contributory negligence can bar recovery under claim for breach of the covenant of quiet enjoyment, where the landlord’s violation is found to be negligent, but not reckless, wilful, or intentional.
A notice of appeal in Goreham v. Martins was filed on March 14, 2018, making this case one to watch at the appellate level.