Barranco v. Milford Housing Authority

• Decision Date: 07 November 1990
• Citation: 408 Mass. 502,562 N.E.2d 74
• Parties: Joseph A. BARRANCO, Sr., et al. 1 v. MILFORD HOUSING AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 74

562 N.E.2d 74

408 Mass. 502

Joseph A. BARRANCO, Sr., et al. ¹ v. MILFORD HOUSING AUTHORITY.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued Sept. 5, 1990.

Decided Nov. 7, 1990.

Philip J. MacCarthy, Worcester (Patricia J. DiGiovanni, Westborough, with him), for defendant.

Andrej Thomas Starkis, Milford, for plaintiffs.

Toni Lee Pomeroy, Framingham, for South Middlesex Legal Services, Inc., amicus curiae, submitted a brief.

Martin J. Rooney, Boston, for Boston Housing Authority et al., amici curiae, submitted a brief.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

In this action, Joseph A. Barranco, Sr. (Barranco), seeks to recover damages for bodily injuries he sustained as a result of falling down stairs in an apartment he occupied as a tenant. The apartment was owned by Dennis Cashman, previously a defendant. The defendant Milford Housing Authority (Authority) subsidized the rental payments. The other plaintiffs seek recovery for loss of consortium. Barranco's claims are based on theories of breach of contract and negligence (tort). Although the language of the complaint is not entirely clear, the loss of consortium claims are necessarily also grounded in tort for negligence.

At the conclusion of all the evidence, the Authority moved for a directed verdict on all the claims against it. The judge allowed the motion with regard to Barranco's negligence claim, apparently on the ground that Barranco had failed to comply with the presentment requirements of G.L. c. 258, § 4, added by St.1978, c. 512, § 15. The judge ordered the entry of judgment for the Authority on that claim. The judge otherwise denied the motion and, after the jury returned verdicts for the plaintiffs, he denied the Authority's motion for judgment notwithstanding the verdicts. Judgments were entered for the plaintiffs. Barranco appealed from the judgment for the Authority on his tort claim, asserting that the judge erred in directing a verdict thereon. The Authority also appealed, claiming that the judge should have directed verdicts in its favor on Barranco's bodily injury claim based on breach of contract and on the loss of consortium claims. We transferred the case from the Appeals Court to this court on our own initiative. We conclude that the evidence was insufficient as a matter of law to warrant verdicts for the plaintiffs on any of their claims. Therefore, we affirm the judgment for the Authority on Barranco's tort claim, and we reverse the judgments for Barranco on his contract claim and for the other plaintiffs. We order judgment for the Authority on Barranco's contract claim and the claims for loss of consortium. ²

We recite the relevant facts the jury would have been warranted in finding. Due to the absence of a bannister, Barranco fell while descending a staircase in his apartment on February 18, 1980, and was injured. Before the accident, Dennis Cashman, who owned the apartment, and the Authority had been notified that a bannister was needed at that location and that its absence constituted a violation of the State Sanitary Code. At the time of the accident a lease was in effect between Barranco, as tenant, Cashman, as owner, and the Authority. Barranco and the Authority each paid part of the rent.

Section 2 of the lease is entitled, "The Owner Agrees." Section 2 contains numerous numbered paragraphs and subparagraphs dealing with the owner's obligation to provide and maintain a safe and clean apartment, including stairways. In paragraph 2.5, the owner agrees as follows: "2.5 To repair all defects upon notification which create an immediate and serious danger to life, health or safety or provide the Tenant with suitable temporary accommodations which meet the minimum requirements of the State Sanitary Code ... as quickly as possible. If repairs are not made, or suitable temporary accommodations offered, within 72 hours after Owner learns of the defect, the Authority may do one of the following:

"2.5.1 The Authority may have the repairs done by workmen of its own choosing and may charge the cost of repairs to the Owner ..., or

"2.5.2 the Authority may find suitable temporary accommodations for tenant, in which case the Authority's share of the total rent shall abate completely during the entire period in which the defect exists and no repair or offer of suitable temporary accommodations is made, or

"2.5.3 the Authority may terminate this lease 10 calendar days after Owner receives notice of such defects if the required repairs are not substantially underway or completed, the determination of which shall be made solely by the Authority. The Authority shall have the responsibility of relocating Tenant (See Sec. 3.11 for reference).

"2.5.4 Regardless of which option is chosen by the Authority, if repairs are not made or suitable temporary accommodations offered within the initial 72-hour period, the Tenant's share of the total rent shall abate completely during the entire period in which the defect exists and neither the Owner nor the Authority make repairs or offer suitable temporary accommodations."

In paragraph 2.6 the owner agrees: "[t]o make all other necessary repairs within 21 days after being properly notified of the defect. If repairs are not made during this time period, the Authority may have the repairs done by workmen of its own choosing. If these repairs are not done by either the Owner or Authority within this time period, the Tenant may petition the Grievance Panel, for a partial rent abatement in proportion to the amount of harm or inconvenience the Tenant suffers until the repair is made." Paragraphs 2.7 through 2.13 set forth various other responsibilities undertaken by the owner, having to do with such matters as painting (2.7), maintenance of insurance (2.8 and 2.9), provision of emergency maintenance service (2.10), steps to be taken if the Owner should transfer his interest in the building (2.11), and the method of delivery of notices to the tenant (2.12). Paragraph 2.13 states, "[the owner agrees] [t]hat if more than one person signs this lease as Owner, all promises and covenants made herein shall be considered as joint and several."

Sections 3 and 4 of the lease are respectively entitled, "The Authority Agrees," and "The Tenant Agrees." These sections contain numerous paragraphs, none of which we repeat because, in their argument to us, the plaintiffs do not rely on any provision in sections 3 or 4. The plaintiffs rely only on section 2. We make the observation, however, that there is no provision in section 3, dealing with the Authority' agreements, that even arguably suggests an undertaking by the Authority to provide a bannister, to otherwise maintain or repair Barranco's apartment, or to take any other action it failed to take in this case.

Barranco argues with respect to his contract claim that the jury would have been warranted in finding that the Authority was on notice that there was no bannister, and that the absence of a bannister created an immediate and serious danger to life, health, or safety. Also, Barranco argues, the jury would have been warranted in finding that section 2 of the lease, especially paragraph 2.5 and its subparagraphs, required the Authority in such circumstances to either repair the defect or move the tenant to other accommodations or terminate the lease. Since the evidence shows that the Authority failed to adopt any of those alternatives, Barranco asserts, the jury were warranted in finding that the Authority breached its contract and that the plaintiff's injury resulted.

We reject Barranco's contention that the jury properly could have interpreted section 2 of the lease to...