Navarro v. Burgess

• Decision Date: 13 April 2021
• Docket Number: No 19-P-1542,19-P-1542
• Citation: 167 N.E.3d 898,99 Mass.App.Ct. 466
• Parties: Ryan Rodriguez NAVARRO v. David A. BURGESS & another.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 466

167 N.E.3d 898

Ryan Rodriguez NAVARRO¹

v.David A. BURGESS ² & another.³

No 19-P-1542

Appeals Court of Massachusetts, Hampden.

Argued January 14, 2021.

Decided April 13, 2021.

Jeffrey M. Feuer, Cambridge, for the plaintiff.

Jeffrey J. Trapani, Springfield, for the defendants.

Present: Wolohojian, Henry, & Singh, JJ.

WOLOHOJIAN, J.

At issue is whether the minor plaintiff has asserted viable claims of negligence and violation of G. L. c. 93A against the defendants, who performed a lead inspection of a property in which the plaintiff became a tenant more than twenty years after the inspection.We conclude that the complaint was properly dismissed because, as a matter of law, the defendants owed no duty to the plaintiff in the circumstances.

Background.Taken in the light most favorable to the plaintiff, the allegations of the complaint (together with the materials submitted and considered by the motion judge⁴ ) show the following.In May 2015, the minor plaintiff(then an infant) and his family became tenants at 39Maynard Street, apartment 2R, in Springfield.In renting the apartment to the plaintiff's family, the owner (2015 owner) relied on a lead inspection performed by defendant Burgess (a Massachusetts licensed lead inspector), in April 1993.⁵Burgess had been hired to perform the inspection by an earlier owner of the property (1993 owner).At some point, the 1993 owner subsequently sold the property; it thereafter changed hands several more times before ultimately coming into the possession of the 2015 owner.

Burgess, as president of the defendantEmerald Investments Ltd.(corporation),⁶ signed a "Letter of Initial Lead Inspection Compliance"(initial compliance letter) reflecting the results of his 1993 inspection.⁷The initial compliance letter stated:

"This letter is to certify that I inspected your property located at 39Maynard Street, 2nd floor right [a]partment, and relevant common areas, in the [c]ity of Springfield, Massachusetts, for dangerous levels of lead according to 105 [Code Mass. Regs. §]460.730(A) through (F): Procedures For Initial Inspection For Lead Poisoning Prevention and Control, and determined that there were no violations.The inspection was conducted on April 19, 1993.

"Please be advised that Massachusetts Law requires that only certain residential surfaces be free of lead paint.Thus, this letter does not mean that your property contains no lead paint.The premises or dwelling unit and relevant common areas shall remain in compliance only as long as there continues to be no peeling, chipping, or flaking lead paint or other accessible materials and as long as coverings forming an effective barrier over such paint and materials remain in place."

Burgess's only contact with the property was the one occasion when he inspected the apartment on April 19, 1993; he has performed no inspections there since then, and has not otherwise had any connection to the property.

As noted above, the apartment was rented by the 2015 owner to the plaintiff's family in 2015.In August 2017, after the plaintiff began to experience symptoms consistent with lead poisoning, the apartment was inspected by an inspector with the Massachusetts Department of Public Health, who found elevated and dangerous levels of lead.The plaintiff's medical expert is of the view that the plaintiff suffered moderately severe lead poisoning as a result, and that the plaintiff will be adversely affected throughout his life.

The plaintiff's two-count complaint alleged negligence and violation of G. L. c. 93A based on the facts we have recited above.As to negligence, the plaintiff alleged that Burgess knew or should have known that children under the age of six would reside in the apartment, that Burgess was required to perform his duties as a licensed lead inspector with due care and in accordance with applicable safety standards, and that Burgess negligently issued the initial compliance letter.The complaint does not explicitly allege that Burgess owed a duty to the plaintiff.As to G. L. c. 93A, the complaint asserts simply that the statute was violated, that the violation was knowing and willful, and that Burgess failed to make a reasonable written offer of relief in response to the plaintiff's pre-litigation demand letter.The complaint does not allege any unfair or deceptive act.

In response, the defendants filed a motion to dismiss under Mass. R. Civ. P. 12 (b)(6), 365 Mass. 754(1974), for failure to state a claim upon which relief may be granted.⁸The judge conducted a nonevidentiary hearing on the motion, which she then allowed in a thoughtful written memorandum explaining the bases for her decision.In essence, the judge concluded that Burgess owed no duty to the plaintiff, who became a tenant in the apartment more than twenty years after the inspection.Accordingly, judgment entered dismissing the complaint.The judge subsequently denied the plaintiff's motion for reconsideration.

Discussion."To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage."Jupin v. Kask, 447 Mass. 141, 146, 849 N.E.2d 829(2006).The last three of these are fact-dependent inquiries that are ordinarily left to a jury to decide.Id.But the existence of a duty is a question of law.Id.SeeAulson v. Stone, 97 Mass. App. Ct. 702, 705, 150 N.E.3d 798(2020);Pantazis v. Mack Trucks, Inc., 92 Mass. App. Ct. 477, 483, 87 N.E.3d 1191(2017)."If no such duty exists, a claim of negligence cannot be brought."Remy v. MacDonald, 440 Mass. 675, 677, 801 N.E.2d 260(2004).SeeDavis v. Westwood Group, 420 Mass. 739, 742-743, 652 N.E.2d 567(1995)("Before liability for negligence can be imposed, there must first be a legal duty owed by the defendant to the plaintiff").

"[C]ourts will find a duty where, in general, reasonable persons would recognize it and agree that it exists."Luoni v. Berube, 431 Mass. 729, 735, 729 N.E.2d 1108(2000), quotingW.L. Prosser & W.P. Keeton, Torts§ 53, at 358-359 (5th ed. 1984)."A duty finds its ‘source in existing social values and customs,' and thus ‘imposition of a duty generally responds to changed social conditions’ "(citations omitted).Jupin, 447 Mass. at 146-147, 849 N.E.2d 829."[A]s a general principle of tort law, every actor has a duty to exercise reasonable care to avoid physical harm to others"(quotations and footnote omitted).Id. at 147, 849 N.E.2d 829, citingRemy v. MacDonald, 440 Mass. at 677, 801 N.E.2d 260."A precondition to this duty is, of course, that the risk of harm to another be recognizable or foreseeable to the actor."Jupin, supra.SeeHelfman v. Northeastern Univ., 485 Mass. 308, 319, 149 N.E.3d 758(2020);Correa v. Schoeck, 479 Mass. 686, 698, 98 N.E.3d 191(2018).

We apply these principles to the allegations in this case.It is plain that Burgess had a duty to the 1993 owner who hired him to inspect the premises with the requisite level of care.That duty arose from the contractual relationship between the 1993 owner and Burgess, similar to the duty that arises between other trained professionals and their clients.See, e.g., Miller v. Mooney, 431 Mass. 57, 60-61, 725 N.E.2d 545(2000)(attorney-client).However, the duty that arises from such a contractual relationship does not ordinarily extend to a nonclient unless the professional knows that the nonclient will rely on the services rendered, or that it is reasonably foreseeable the nonclient would do so.SeeCraig v. Everett M. Brooks Co., 351 Mass. 497, 501, 222 N.E.2d 752(1967)(civil engineering firm);Meridian at Windchime, Inc. v. Earth Tech, Inc., 81 Mass. App. Ct. 128, 133, 960 N.E.2d 344(2012)(same).Here, there is no allegation that Burgess knew the plaintiff would become a tenant of the premises more than twenty years after the inspection, or that he knew the plaintiff would rely on Burgess's decades-old initial compliance letter.Thus, the question is whether it was reasonably foreseeable to Burgess that a tenant so remote in time from the inspection would so rely.Meridian at Windchime, Inc., supra.This is an objective standard.Id.

For several reasons, the answer to this question is "no."To begin with, as we have noted above, Burgess provided the initial compliance letter only to the 1993 owner.There is nothing to suggest that Burgess knew to whom the premises were rented in 1993 when he performed his inspection, let alone to whom they would be rented in the decades thereafter.Nor is there anything to suggest that Burgess intended the initial compliance letter to be provided to, or relied upon by, the several subsequent owners of the property or future tenants of those owners.Second, the initial compliance letter made clear that Burgess was not certifying that the premises were free of lead; Burgess provided neither a guaranty nor a warranty.Instead, the initial compliance letter reflected only the condition of certain surfaces in the apartment on the day of inspection, and made clear that future changes such as peeling, chipping, or flaking lead paint or other accessible materials could affect the conclusions of the inspection.It is unreasonable to read Burgess's initial compliance letter to mean that the apartment would be free of lead in the distant future; concomitantly, it was not reasonably foreseeable that the plaintiff(or the 2015 owner) would rely on the initial compliance letter for that purpose.Cf.Christopher v. Duffy, 28 Mass. App. Ct. 780, 784, 556 N.E.2d 121(1990)(noting impediments to proving liability for lead poisoning where there had been a significant lapse of time).Third, neither the apartment, nor its condition, was under Burgess's control; he had no ongoing relationship with the premises.In fact, he had no contact with the premises apart from the...