Osorno v. Simone

• Decision Date: 03 December 2002
• Docket Number: No. 99-P-2134.,99-P-2134.
• Citation: 779 N.E.2d 645,56 Mass. App. Ct. 612
• Parties: Luis Carlos OSORNO v. Peter SIMONE & others,<SMALL><SUP>1</SUP></SMALL> trustees.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

779 N.E.2d 645

56 Mass. App. Ct. 612

Luis Carlos OSORNO v. Peter SIMONE & others,¹ trustees.²

No. 99-P-2134.

Appeals Court of Massachusetts, Suffolk.

Argued December 4, 2001.

Decided December 3, 2002.

Maureen Bailey Counihan for the plaintiff.

John S. Stadler, Boston, for the defendants.

William DeBear & Henry A. Goodman, for Attorneys' Committee of Community Associations Institute, New England Chapter, amicus curiae, submitted a brief.

Present: GELINAS, DREBEN, & MILLS, JJ.

GELINAS, J.

We are asked to decide in this case whether the provisions of G.L. c. 143, § 51, imposing strict liability for injuries caused by violations of the State Building Code upon those in control of certain types of "buildings," apply to the Mariners Landing Condominiums and the defendant trustees.³ We conclude that in this case the statute is not applicable, and we affirm a judgment of the Superior Court in favor of the trustees.

We take the facts from the findings of the Superior Court judge, supplemented by uncontroverted material in the record. Mariners Landing Condominiums is a residential condominium, established pursuant to G.L. c. 183A. Unit owners are permitted to rent or lease their individual condominiums, and of the thirteen units in the condominium, three were in fact rented or leased. Certain of the exterior common areas of the condominium, albeit principally for the use of the unit owners, are accessible to the general public. The incident giving rise to the complaint here occurred while work was being done on an exterior wall, a common area not generally accessible to members of the public.

Plaintiff Luis Osorno, together with his coworker Fredy Suarez,⁴ was injured while applying stain to the exterior of one of the common areas of the condominium. The injuries occurred when the two fell from scaffolding that they and their coworkers erected on the outside of the building. Both were employed by a painting contractor, Bossman, Inc. (Bossman), which in turn had been engaged by the trustees to paint or stain the exterior of the condominium units and interior hallways, and to replace certain areas of rotted wood and plaster in the carport area. The scaffolding was approximately twelve feet high, on which Osorno and Suarez mounted a fortyfoot extension ladder. Suarez remained on the scaffold to hold the ladder. Osorno climbed the ladder to apply stain. At a certain moment the scaffold fell away from the wall and the ladder fell to the ground. After investigation, the police and the Occupational Safety and Health Administration (OSHA) concluded that the ladder had slipped through or between the planks in the center of the scaffold. As the ladder came down through the planks, the scaffold toppled away from the house. Osorno fell to the ground. It is undisputed that he suffered substantial and permanent injuries as a result of the fall.

Citations were issued against Bossman for, among other things, violating various Federal regulations incorporated into the State Building Code as set forth in the margin.⁵ There was ample evidence introduced at trial that the scaffold did not comport with the code and that neither Osorno nor Suarez had received any training in the use of scaffolds and ladders.

Osorno brought suit against Bossman for injuries caused by negligence. In a second amended complaint Osorno also brought a claim against the trustees, alleging that their negligence caused his injuries, and also asserting that the trustees, as nominal owner and party in control of the common areas of the condominium, were strictly liable for damages pursuant to G.L. c. 143, § 51, as his injuries were caused as a result of violations of the State Building Code.

Prior to trial, Osorno and Suarez settled their claims against Bossman and certain other persons. The remaining parties agreed that the applicability of G.L. c. 143, § 51, to the facts of this case was a question of law for the trial judge, and that, if necessary, the issue would be determined after the jury decided both claims. Following trial, the jury found that the trustees were not negligent in connection with the accident. The jury did find that there was a violation of the State Building Code, that the violation was the cause of Osorno's injuries, and that Osorno had suffered damages in the amount of two million dollars, an amount that greatly exceeded his settlement. After hearing argument with respect to the applicability of the statute, the trial judge issued a memorandum and order for judgment, finding that the Mariners Landing Condominiums, being a relatively small condominium, was not a "building" within the meaning of G.L. c. 143, § 51. Osorno's sole argument on appeal is that the judge erred in determining that, in circumstances such as these, the word "building," as used in G.L. c. 143, § 51, does not apply to a residential condominium where some of the units are rented by their owners, and where there are common areas to which members of the public are invited.

We set forth the pertinent language of G.L. c. 143, § 51, as amended through St.1993, c. 495, § 35:

"The owner, lessee, mortgagee in possession or occupant, being the party in control, of a place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building shall comply with the provisions of this chapter and the state building code relative thereto, and such person shall be liable to any person injured for all damages caused by a violation of any of said provisions."

In our decision in the case of Santos v. Bettencourt, 40 Mass.App.Ct. 90, 93, 661 N.E.2d 671 (1996), we determined that the word "building" in § 51 was limited, by the words preceding it in the statute, to structures that had a "commercial or public" use. That decision declared owners of single family houses to be excluded from the strict liability provision of G.L. c. 143, § 51. Id.⁶ We concluded that the broad definition of "building" in G.L. c. 143, § 1, as appearing in St.1972, c. 802, § 12, which defines "building" as "a combination of any materials, whether portable or fixed, having a roof, to form a structure for the shelter of persons, animals or property," was limited in § 51 by application of the principle of ejusdem generis. Id. at 92-93, 661 N.E.2d 671. By placing the words "or building" after the descriptive words "place of assembly," "theatre," "special hall," "public hall," "factory," "workshop" and "manufacturing establishment," the Legislature intended the strict liability provisions of the statute to apply only to public or commercial structures, and not to single family houses. Id.

Osorno argues that residential condominiums, such as Mariners Landing Condominiums, are markedly different from single family houses, and that the statute imposes liability on the organization of unit owners of the condominium, in this case, the trust; that unlike single family homeowners, condominium unit owners own their unit and an undivided interest in the common areas, making a condominium more than simply a collection of single family houses under one roof; that control of the common areas is relinquished to the organization of unit owners; that the common areas are open to and used by members of the public, and that, on occasion, certain of them have characteristics that approximate some of the structures and uses described in the statute, i.e., they may be used as a "place of assembly," a "theatre," a "special hall" or a "public hall"; and that unit owners may rent or lease their units, deriving income and making unit ownership a commercial enterprise.

Osorno observes that the Mariners Landing Condominium Trust is a separate legal entity that has exclusive control over the common areas (see Glickman v. Brown, 21 Mass.App.Ct. 229, 237, 486 N.E.2d 737 [1985]); that the trustees have the power and responsibility to maintain the common areas and to impose fees on the unit owners for such maintenance (see Blood v. Edgar's, Inc., 36 Mass.App.Ct. 402, 405, 632 N.E.2d 419 [1994]); and that the trustees have the sole power to conduct litigation concerning the common areas (see Strauss v. Oyster River Condominium Trust, 417 Mass. 442, 445, 631 N.E.2d 979 [1994]). See G.L. c. 183A, § 10(b)(4). Thus, Osorno argues, the trustees, in their control over the common areas, are not owners of the residential units in any sense and act with regard to the common areas in a commercial way.

As established in G.L. c. 183A, a residential condominium unit has attributes of a single family house. Each unit owner receives an exclusive fee interest in the individual unit. In addition, each unit owner becomes an owner, in common with other unit owners, of the common areas and facilities of the development. G.L. c. 183A, § 5. Conformably with G.L. c. 183A, §§ 8(d) and 10, the person submitting real estate to the regime of c. 183A must form an organization of unit owners to manage the condominium on behalf of all unit owners. If the unit owners association is a trust, the unit owners elect trustees to conduct the affairs according to the bylaws of the trust. The trustees are not charged with running either a commercial enterprise or a public facility; they act for and on behalf of the unit owners, not for the purpose of generating income or of providing management of spaces designed to attract public assembly, but simply to facilitate what would otherwise be the work of management of residential property by numerous tenants in common. See G.L. c. 183A, §§ 8(i), 10.

Our appellate courts have considered the scope of the word "building," as applicable to residential structures, on several occasions in recent years. In Commonwealth v. Duda, 33 Mass.App.Ct. 922, 923, 597 N.E.2d 1382 (1992), we reasoned that a watchman's residential cottage in a commercial marina qualified as a "building" under G.L. c. 143, § 51, for the purpose of notice as a precedent to a prosecution for violation of the State Building...