Bishop v. Another1

• Citation: 942 N.E.2d 173,459 Mass. 9
• Decision Date: 01 March 2011
• Docket Number: SJC–10696.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Mary BISHOPv.TES REALTY TRUST & another.1

459 Mass. 9
942 N.E.2d 173

Mary BISHOP
v.
TES REALTY TRUST & another.1

SJC–10696.

Supreme Judicial Court of Massachusetts, Essex.

Argued Nov. 4, 2010.Decided March 1, 2011.

[942 N.E.2d 174]

Gregory T. Smith, Boston, for the plaintiff.Robert F. Feeney, Plymouth (Anne M. Paone with him) for the defendants.Present: SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.GANTS, J.

[459 Mass. 9] The plaintiff, Mary Bishop (Bishop or tenant), operated a tanning salon from a single-story building in Swampscott she leased from the defendants, TES Realty Trust (trust) and Billie Jo Ulery, a trustee of the trust (collectively, landlord). On [459 Mass. 10] June 5, 2000, Bishop sent a certified letter, return receipt requested, to Michelle Timlin, Ulery's daughter and a trustee of the trust, directed to both Ulery and Timlin, complaining about the leaking roof, including cracks and leaks in the two skylights near the tanning beds.² Nothing was done in response to the letter until September, 2001, when Ulery's husband performed some roof repairs, but he did nothing on the side of the roof with the skylights. On May 14, 2002, rain water fell from a leak in or around one of the skylights, and Bishop placed a bucket beneath the leak to catch the water and protect the rug from damage. When she looked up to the skylight, plaster fell from the roof into her eye, causing her to fall backward and then to trip over the bucket as she tried to get to her feet, resulting in

[942 N.E.2d 175]

a serious rotator cuff injury in her shoulder.

Bishop filed suit in Superior Court, alleging that her injuries were caused by the landlord's negligence in failing to repair the roof. At the close of all the evidence, the judge allowed the landlord's motion for a directed verdict. The judge concluded that, under the commercial lease, Bishop was responsible for making all necessary repairs to the leased premises, which included the roof, and that the landlord owed no duty under the common law or the lease to repair an unsafe condition.³ The judge also concluded that the defendants owed no statutory duty [459 Mass. 11] to repair an unsafe condition, because G.L. c. 186, § 19, did not apply to commercial leases.⁴ Because the landlord owed no duty to repair the roof and because the landlord and tenant did not contract for the repair, the judge concluded that the landlord could be liable only if there was gross negligence in the gratuitous repair of the roof, and there was no evidence of gross negligence. The plaintiff appealed, and we transferred her appeal to this court on our own motion.

The fundamental issue on appeal is whether the statutory duty of a landlord under G.L. c. 186, § 19, to exercise reasonable care to correct an unsafe condition described in a written notice from a tenant applies to commercial leases. We conclude that it does. Because the evidence at trial, viewed in the light most favorable to the plaintiff, was sufficient to permit the jury to conclude that the tenant had given formal written notice of the leaky skylights, that the leaks were an unsafe condition, that the landlord committed a breach of its statutory duty to remedy the unsafe condition, and that the breach was a substantial contributing cause of the plaintiff's injury, we conclude that the judge erred in awarding a directed verdict in favor of the defendants. See Gelinas v. New England Power Co., 359 Mass. 119, 123, 268 N.E.2d 336 (1971) (in deciding motion for directed verdict,

[942 N.E.2d 176]

judge must determine “whether the evidence, considered in its entirety and in its light most favorable to the plaintiff, was sufficient to [459 Mass. 12] permit the jury as the trier of facts to infer that some negligent act or omission by the defendant caused the injuries sustained by the plaintiff”). We, therefore, vacate the judgment and remand the case for a new trial.

Discussion. Under G.L. c. 186, § 19, after receiving the required notice of an unsafe condition, not caused by the tenant, in a portion of the premises controlled by the tenant, the tenant's invitee, or a subtenant, a “landlord or lessor of any real estate except an owner-occupied two or three-family dwelling” owes a duty to exercise reasonable care to remedy the unsafe condition. If a tenant or any person lawfully on the premises is injured as a result of the failure to correct the unsafe condition within a reasonable time, the injured party has a right of action in tort against the landlord for damages. Id. A landlord may not obtain a waiver of this duty in any lease or other rental agreement; any such waiver “shall be void and unenforceable.” Id.

Although § 19 was enacted almost forty years ago, see St.1972, c. 665, we have yet to decide whether the duty it imposes applies to commercial landlords.⁵ To resolve this question, consistent with our general practice of statutory interpretation, we look first to the language of the statute because it is “the principal source of insight” into the intent of the Legislature. Norfolk & Dedham Mut. Fire Ins. Co. v. Morrison, 456 Mass. 463, 468, 924 N.E.2d 260 (2010), quoting O'Sullivan v. Secretary of Human Servs., 402 Mass. 190, 194, 521 N.E.2d 997 (1988). While we generally conclude that the Legislature means what it says, we do not consider the language of the statute alone, but seek to ascertain the intent of the Legislature in enacting the statute “from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished.” Halebian v. Berv, 457 Mass. 620, 628–629, 931 N.E.2d 986 (2010), quoting Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518 (2006).

Focusing first on the language of § 19, there is nothing to suggest that it applies to less than all leases of real property, [459 Mass. 13] except for leases of owner-occupied two- or three-family dwellings. Cf. Norfolk & Dedham Mut. Fire Ins. Co. v. Morrison, supra at 468, 924 N.E.2d 260 (interpreting G.L. c. 186, § 15). Apart from this exception, the duty applies to a “landlord or lessor of any real estate,” which presumably includes commercial real estate (emphasis added). In enacting this statute, the Legislature demonstrated that it knew how to distinguish between “a landlord or lessor of residential premises” and a landlord of commercial premises, because the last sentence of the statute adds a second method for satisfying the notice requirement that pertains only to residential premises. G.L. c. 186, § 19 (“landlord or lessor of residential premises ” may receive notice from “board of health or other code enforcement agency” of State sanitary code violation [emphasis added] ).⁶

[942 N.E.2d 177]

“When the Legislature has intended to distinguish between residential and commercial leases, it has included specific language to that effect.” Norfolk & Dedham Mut. Fire Ins. Co. v. Morrison, supra at 468–469, 924 N.E.2d 260, and statutes cited. “Where the Legislature has not done so here, we will not impute such an intent.” Id. at 469, 924 N.E.2d 260.

The legislative intent to include commercial landlords within the scope of § 19 is also reflected in the legislative history of the statute. Before discussing that history in detail, it is important to understand the legal context in which § 19 was enacted in 1972, because this context sheds light on “the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished.” Halebian v. Berv, supra. Under the common law as it stood in 1972, a landlord owed a duty to tenants and visitors to “exercise reasonable care to maintain the common areas in a condition not less safe than they were, or appeared to be in, at the time of the letting to the particular tenant.” King v. G & M Realty Corp., 373 Mass. 658, 660, 370 N.E.2d 413 (1977). If the common areas were visibly unsafe at the time of the letting, the landlord owed no duty to make them safer. [459 Mass. 14] See id. As to the leased premises that the tenant solely controlled, “caveat emptor reigned.” Young v. Garwacki, 380 Mass. 162, 165, 402 N.E.2d 1045 (1980). “The tenant took the premises as he found them.” Id. The landlord owed no duty to the tenant to remedy unsafe conditions in the areas over which the tenant had sole control, unless the landlord knew of hidden defects at the time of letting and failed to warn the tenant.⁷ See id. See also Ackarey v. Carbonaro, 320 Mass. 537, 539, 70 N.E.2d 418 (1946).

In 1945, the Legislature enacted G.L. c. 186, § 15, which declared any lease provision “against public policy and void” that had the effect of indemnifying the landlord or exonerating the landlord from liability arising from the landlord's negligence on any part of the leased premises or common areas that was “not within the exclusive control of the lessee or tenant.” St.1945, c. 445, § 1.⁸ This statute did not expand the scope of a landlord's liability beyond the common law; it merely declared void any attempt by a landlord, whether residential or commercial, to nullify by contract the already narrow scope of common-law liability. See Norfolk & Dedham Mut. Fire Ins. Co. v. Morrison, supra at 468–469, 924 N.E.2d 260.

In 1972, the Legislature began to exercise its authority to expand the scope of landlord liability by statute. First, in April, 1972, it enacted G.L. c. 186, § 15E, which, where a tenant or occupant of a building was injured because of a defect in a common area that was a violation of the building code in the city or town where the property was located, barred the “owner of a building” from raising as a defense in a negligence action that the defect existed at the time the property was let.⁹

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G.L. c. 186, § 15E, inserted by St.1972, c. 157. While under the common law a landlord had no duty to remedy a building code [459 Mass. 15] violation that visibly...