Klairmont v. Gainsboro Rest., Inc.

Decision Date16 May 2013
Docket NumberSJC–11154.
Citation465 Mass. 165,987 N.E.2d 1247
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesLisa KLAIRMONT & another, administrators, v. GAINSBORO RESTAURANT, INC., and others.


Michael F. Aylward (Richard W. Jensen with him), Boston, for the defendants.

Joseph S. Sano (Thomas M. Elcock, Boston, & Jeffrey A. Newman with him) for the plaintiffs.

The following submitted briefs for amici curiae:

Mark A. Behrens & Cary Silverman, of the District of Columbia, & Ryan K. Farnsworth for Associated Industries of Massachusetts & others.

James M. Campbell for Federation of Defense and Corporate Counsel.

Michael C. Gilleran & Michael D. Riseberg, Boston, for Massachusetts Defense Lawyers Association & another.

Timothy C. Kelleher, Jeffrey S. Beeler, Thomas R. Murphy, & J. Michael Conley for Massachusetts Academy of Trial Attorneys.



At approximately 1:46 a.m. on April 1, 2007, Jacob Samuel Freeman fell down a staircase at Our House East, a bar and restaurant in Boston. As a result of injuries sustained from the fall, Jacob 5 died on April 3, 2007. The plaintiffs, Lisa Klairmont and Michael Freeman, the parents of Jacob, filed this action thereafter in the Superior Court in their capacities as administrators of Jacob's estate against Gainsboro Restaurant, Inc., doing business as Our House East (Our House East); and Holli P. Vara, Franklin E. Melgar, and Henry D. Vara, III 6 (collectively, trustees), as the trustees of the 50–58 Gainsborough Street Realty Trust (trust), the entity that owns the land and buildings within which Our House East operates. The complaint alleged claims against Our House East and the trustees for the wrongful death of Jacob and for violation of G.L. c. 93A. After a lengthy trial, a Superior Court jury returned a verdict for the defendants on the plaintiffs' wrongful death claims, and thereafter the trial judge, who had reserved for herself the plaintiffs' claim under c. 93A, entered findings, rulings, and an order for judgment for the plaintiffs on that claim. For the reasons discussed hereafter, we decide that the plaintiffs are entitled to recover on their c. 93A claim, but that the judge erred in her calculation and award of damages. We therefore vacate the judgment and remand the case for a determination of damages and attorney's fees consistent with this opinion.7

Background. We briefly recite the facts, taken from the evidence at trial, and reserve for later discussion additional facts relevant to each issue raised in this appeal.

In the early morning of April 1, 2007, Jacob, a student at Northeastern University, went with several friends to Our House East, where he ordered and was provided with two beers. He had been drinking at other locations before he arrived at Our House East. At approximately 1:45 a.m., Jacob walked from the main bar at Our House East into a hallway leading to the establishment's rear door, seeking a quieter place to receive a call on his cellular telephone. As he walked along the hallway toward the rear door, the kitchen area was on his right and a staircase down to the cellar was on his left. The presence of the stairs was obscured with hanging vinyl strips. Apparently intent on his telephone call, Jacob lost his balance and fell down the stairs. Shortly thereafter, an employee of Our House East moved the vinyl strips and saw Jacob lying on the floor at the base of the staircase. Jacob died two days later; the direct cause of death was a basilar skull fracture and a subdural hematoma, injuries he received as a result of his fall.

The plaintiffs sent a timely written demand letter to the defendants under G.L. c. 93A, § 9, alleging that the staircase was defective in violation of multiple provisions of the State Building Code (building code) and that the defendants' building code violations constituted unfair or deceptive conduct that was actionable under c. 93A pursuant to 940 Code Mass. Regs. § 3.16(3) (1993).8 The defendants disputed the plaintiffs' claims of liability but offered initially $25,000, and later $75,000, in settlement. The plaintiffs rejected these offers and filed this action. The plaintiffs' second amended complaint contained counts of wrongful death on the theories of gross negligence; wilful, wanton, or reckless conduct; negligence; and strict liability under G.L. c. 143, § 51.9 It also contained counts alleging violation of c. 93A pursuant to 940 Code Mass. Regs. § 3.16(3) based on the defendants' alleged failure to comply with building permit and building code requirements.

Trial proceeded before a jury on all of the plaintiffs' claims concurrently, but the judge reserved decision on the c. 93A claim. The judge directed a verdict for the defendants on the counts alleging wrongful death on a theory of strict liability pursuant to G.L. c. 143, § 51, and the jury returned a verdict for the defendants on all the plaintiffs' wrongful death claims. The jury found that the defendants were negligent but that the negligence was not a substantial factor in causing Jacob's death. In response to questions from the judge for “advisory purposes,” the jury found that the defendants failed to comply with the building code but that the violations were not a substantial contributing cause of Jacob's death.

Subsequently, the judge issued her decision on the c. 93A claim. 10 She accepted the jury's conclusion that the defendants violated the building code 11 but rejected the jury's finding on causation with respect to the c. 93A claim. Instead, she found that “Jacob fell and suffered a fatal injury because the stairs were in an unsafe, defective condition, having been built and rebuilt without the necessary Building Permits and not in compliance with the State Building Code.” The judge concluded that multiple unsafe conditions of the staircase “likely contributed to Jacob's fall” and that “none of [the unsafe] conditions of the stairs ... would have been present if the defendants had obtained the necessary building permits.” Based on these findings, she determined that the defendants were liable to the plaintiffs under G.L. c. 93A, § 2 ( a ), pursuant to 940 Code Mass. Regs. § 3.16(3). The judge awarded damages in the amount of $750,000 to each of the plaintiffs for the personal loss of Jacob's “advice, comfort, counsel and consolation.” She also awarded $744,480 as the amount of economic loss Jacob's estate had sustained as a result of his death, but she declined to award any damages for conscious pain and suffering. The judge then trebled the award of damages, pursuant to G.L. c. 93A, § 9, for a total of $6,733,440. Finally, she awarded attorney's fees in the amount of $2,098,875.25 and costs of $254,797.58.

Discussion. Because the plaintiffs' claim under c. 93A is premised solely on the defendants' violations of the building code, we address first whether building code violations may constitute unfair or deceptive conduct within the purview of c. 93A, and the effect of the Attorney General's regulation, 940 Code Mass. Regs. § 3.16(3), in this setting. Our conclusion is that in limited circumstances, liability under c. 93A may arise based on a building code violation through the vehicle of 940 Code Mass. Regs. § 3.16(3), and that the circumstances of this case give rise to c. 93A liability.

We next address whether the plaintiffs, as administrators of their son's estate, may bring a claim under c. 93A that is separate from their wrongful death claims and, if so, the scope of damages recoverable. We conclude that the plaintiffs were entitled to bring a claim under c. 93A pursuant to the Massachusetts survival statute, G.L. c. 228, § 1, distinct from their claims under the wrongful death act, G.L. c. 229, § 2, but that they may only recover damages under c. 93A to the extent that the decedent, Jacob, would have been able to recover, had he survived. We also conclude that multiple damages and attorney's fees on the c. 93A claim may be awarded; however, on remand the judge must reconsider the amount of attorney's fees recoverable in light of the reduction in damages available to the plaintiffs on the c. 93A claim. We then address the impact of the jury's factual determinations on the judge's subsequent findings. We decide that having reserved the decision of the c. 93A claim for herself, the judge was not bound by the jury's answers to the special questions on causation in relation to the plaintiffs' wrongful death claims.

The final issue is whether the judge properly determined, in an order of attachment issued after judgment entered, that the trustees could be liable personally and therefore that their personal property was subject to attachment. We conclude that it is inappropriate to reach the question of personal liability on the part of the trustees in the circumstances before us, where it is unclear on what basis the judge imposed personal liability and that the award of c. 93A damages to which the attachment related must be reconsidered on remand in any event.

1. Liability under c. 93A for violations of the building code. We review a judge's findings of fact under the clearly erroneous standard and his conclusions of law de novo.... A ruling that conduct violates G.L. c. 93A is a legal, not a factual, determination [,] ... [a]lthough whether a particular set of acts, in their factual setting, is unfair or deceptive is a question of fact ...” (quotations and citations omitted). Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 503, 952 N.E.2d 908 (2011).

We begin by reciting the facts as found by the judge and supported by the record. The trust bought the buildings located at 50–54 Gainsborough Street in 1981, and Our House East began operations at 52 Gainsborough Street shortly thereafter. The basement at Our House East was generally used by employees for storage and supplies, but managers of Our House East...

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