Doe v. New Bedford Housing Authority

• Decision Date: 14 March 1994
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Jane DOE & another 1 v. NEW BEDFORD HOUSING AUTHORITY & another. 2

Page 248

630 N.E.2d 248

417 Mass. 273

Jane DOE & another ¹ v. NEW BEDFORD HOUSING AUTHORITY & another. ²

Supreme Judicial Court of Massachusetts,

Bristol.

Argued Nov. 2, 1993.

Decided March 14, 1994.

Christopher R. Whittingham (Timothy R. McGuire, with him), for plaintiffs.

Mary Alice McLaughlin, for defendant.

Charles Harak and Annette R. Duke, for Massachusetts Union of Public Housing Tenants, amicus curiae, submitted a brief.

Martin J. Rooney and Fradique A. Rocha, for Boston Housing Authority, amicus curiae, submitted a brief.

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

LIACOS, Chief Justice.

The plaintiffs appeal from an order of a judge in the Superior Court granting the defendant's motion for summary judgment. On appeal, the plaintiffs argue that the judge below improperly granted summary judgment on their four causes of action: (1) a statutory cause arising from G.L. c. 121B, §§ 32C and 32D (1992 ed.); (2) breach of the warranty of habitability; (3) breach of the covenant of quiet enjoyment; and (4) nuisance. ³ We affirm the granting of summary judgment on the second and fourth causes of action, but reverse on the first and third.

The relevant facts are these. The plaintiff Jane Doe is a tenant of the defendant New Bedford Housing Authority. She lives at the Shawmut Village public housing project in New Bedford, owned and operated by the defendant and consisting of 170 units in "two-story garden apartments." The plaintiff Jane Roe is also a tenant of the defendant. She lives at the Satellite Village public housing project in New Bedford, owned and operated by the defendant and consisting of 146 units in "two-story garden apartments."

Both housing developments are plagued by unlawful drug activity which occurs in external common areas of the developments. The record reflects that those persons involved in the drug activity on the premises are both tenants and nontenants. The record further reflects that the defendant has attempted, pursuant to a standard provision in its leases, to evict those tenants who are involved in drug activity. The record reveals little or no action on the part of the defendant to remove nontenants. Police patrols in the area are infrequent.

The plaintiffs assert that the crowds of people engaged in drug dealing are so large that the streets and sidewalks of the development are unusable and that the crowds create noise and disturbances and litter the premises with drug paraphernalia. In addition, the plaintiffs contend that pervasive atmosphere of crime prevents them from leaving their apartments at night, from allowing their children to play freely around the developments, and generally from living peacefully and enjoyably in their homes. Both plaintiffs have experienced threats and acts of violence perpetrated against them and their families which they characterize as retribution for their involvement in this lawsuit by those engaged in the unlawful drug activity.

The defendant moved for summary judgment and a judge in the Superior Court granted the motion. The plaintiffs appealed. We granted the plaintiffs' application for direct appellate review.

1. G.L. c. 121B, §§ 32C and 32D. The plaintiffs contend that the judge erred in granting summary judgment for the defendant on their claim under G.L. c. 121B, §§ 32C and 32D. ⁴ We agree with the plaintiffs.

Section 32C authorizes the owner landlord of public or subsidized housing to seek an injunction prohibiting a person engaged in certain unlawful activity from entering or remaining on or near the landlord's property. Section 32D permits a tenant to file a civil action requiring the landlord to take action pursuant to § 32C.

The plaintiffs characterize §§ 32C and 32D as a "statutory obligation to provide adequate security to ... tenants." However, the statutes clearly allow the landlord to file an action to enjoin the presence on the premises of a person engaged in certain unlawful conduct and also allow a tenant to file an action to require the landlord to bring such an action. Although the language of § 32D is clear that it "does not limit any existing nor create any new civil or criminal liability," the granting of summary judgment on the claim under c. 121B, §§ 32C and 32D, was improper because the plaintiffs asserted a valid claim in their complaint and the defendant did not meet its burden of showing absence of any genuine issue of material fact and entitlement to judgment as a matter of law. See Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974).

The plaintiffs alleged in their unverified complaint ⁵ that nontenants gather at the housing developments to engage in the buying and selling of drugs and that there is reasonable cause to believe that such unlawful conduct would continue to pose a serious threat to the plaintiffs' health and safety. They further alleged that the defendant had notice of this unlawful conduct but failed to take action under § 32C and that the court was empowered to compel the defendant to take action under § 32C.

The defendant argues that the plaintiffs' complaint did not contain a specific request that the court order the defendant to take action under § 32C, but, rather, contained a request that the court order the defendant to provide security against the unlawful acts described in § 32C. We agree that the plaintiffs specifically did not request an order compelling the defendant to take action under § 32C, but we note that the complaint contained a general prayer for relief. In addition, the plaintiffs alleged undisputed facts sufficient to make out a cause of action under § 32D and also referred to the court's power to issue an order compelling the defendant to take action pursuant to § 32C. Given the liberality with which we read complaints in the Commonwealth, see, e.g., Santana v. Registrars of Voters of Worcester, 384 Mass. 487, 491, 425 N.E.2d 745 (1981), S.C., 390 Mass. 353, 455 N.E.2d 1200 (1983), we conclude that the plaintiffs' complaint sufficiently stated a cause of action and request for relief under the statute.

The defendant also argues that the plaintiffs' failure to provide names of nontenants engaging in unlawful acts was fatal to the plaintiffs' c. 121B claim. We respond to this argument by noting that the express language of § 32D does not require the plaintiffs to provide the landlord with names of specific persons; it requires that the landlord have "actual or constructive notice of [the] unlawful conduct " (emphasis added). G.L. c. 121B, § 32D. Moreover, the defendant does not set forth any argument regarding either the reason or the logic by which we should infer such a requirement from the statute. ⁶

Summary judgment may be granted only when the moving party demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c). Flesner v. Technical Communications Corp., 410 Mass. 805, 808-809, 575 N.E.2d 1107 (1991). The defendant did not meet this burden as to the plaintiffs' claim under G.L. c. 121B, § 32D, since there are genuine issues of fact remaining.

On remand, the plaintiffs will have to prove the elements of § 32D: unlawful conduct as described in § 32C occurring on the premises; serious threat to the plaintiffs' health or safety as a result of said conduct; reasonable cause to believe that the unlawful conduct will continue to pose a serious threat; and actual or constructive notice to the landlord of the unlawful conduct. In addition, since the exclusive remedy under § 32D is an order requiring the landlord to take action under § 32C, and since it would be a waste of judicial resources to issue a § 32D order with which the landlord could not possibly comply, the plaintiffs must show that the landlord knows or can discover by reasonable effort the identity of those persons sought to be enjoined under § 32C.

2. Warranty of habitability. The plaintiffs argue that the judge erroneously granted summary judgment for the defendant on their claim for breach of the warranty of habitability. ⁷ They argue that the warranty of habitability requires the landlord to provide security for the premises, and that this warranty was breached because uninvited persons were present on the premises, engaging in unlawful activity, and the defendants failed to take any action. We conclude that the judge correctly granted summary judgment.

In 1973 this court recognized that the essence of the modern day leasing transaction was to provide a dwelling suitable for occupation. Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 196-197, 293 N.E.2d 831 (1973). In Hemingway, supra at 197-198, 293 N.E.2d 831, we agreed with the reasoning of the court in Javins v. First Nat'l Realty Corp., 428 F.2d 1071, 1078-1079 (D.C.Cir.1970):

"It is overdue for courts to admit that these [old common law] assumptions [that a property conveyance was the essential objective of the transaction] are no longer true with regard to all urban housing. Today's urban tenants, the vast majority of whom live in multiple dwelling houses, are interested, not in the land, but solely in 'a house suitable for occupation.' Furthermore, today's city dweller usually has a single specialized skill unrelated to maintenance work; he is unable to make repairs like the 'jack-of-all-trades' farmer who was the common law's model of the lessee. Further, unlike his agrarian predecessor who often remained on one piece of land for his entire life, urban tenants today are more mobile than ever before. A tenant's tenure in a specific apartment will often not be sufficient to justify efforts at repairs. In addition, the increasing complexity of today's dwellings renders them much more difficult to repair than the structures of earlier times. In a multiple dwelling repair may require access to equipment and areas in the control of the landlord. Low and middle income tenants, even if they were...