Simon v. Solomon

• Citation: 385 Mass. 91,431 N.E.2d 556
• Parties: Jeanette SIMON, executrix, v. Celeste SOLOMON.
• Decision Date: 18 January 1982
• Court: United States State Supreme Judicial Court of Massachusetts

Page 556

431 N.E.2d 556

385 Mass. 91

Jeanette SIMON, executrix, v. Celeste SOLOMON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 18, 1981.

Decided Jan. 18, 1982.

Robert Snider, Boston, for plaintiff.

Richard W. Cole, Roxbury (James H. Wexler, Boston, with him), for defendant.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

In this appeal, a landlord challenges a judgment entered after trial to a jury in the Housing Court Department of the Trial Court, awarding damages and attorneys' fees to a tenant for injuries caused by unsanitary conditions in her apartment.

Gem Realty Company (Gem) ¹ managed a large number of apartment buildings in Boston. It rented many of its apartments to low income tenants under a Federal rent supplement program. From December, 1973, to November, 1977, Celeste Solomon and her two young sons lived in the basement apartment of a building managed by Gem. In December, 1976, Gem began summary process proceedings to evict Solomon for nonpayment of rent. Solomon, citing floods, trash, rats, roaches, and more, denied that she owed rent. She also filed a counterclaim in four counts, claiming that Gem had (1) broken its implied warranty of habitability; (2) violated its implied covenant of quiet enjoyment; (3) caused Solomon emotional distress through its negligent failure to maintain her apartment; and (4) intentionally inflicted emotional distress.

Solomon's counterclaims are based primarily on her allegations of flooding in her apartment. She testified at trial that water and sewage, flowing from an adjoining basement area, flooded her apartment approximately thirty times during her tenancy. Solomon could not recall the date of any of the floods, but was able to name the months in which floods had occurred. She testified that each flood had occurred between twelve and two o'clock in the morning; she described stepping from bed into ankle deep water and slime. Each time this happened, Solomon would spend the night in her kitchen, drinking coffee, and waiting for the morning to call Gem. According to Solomon, a Gem cleanup crew would arrive several hours after her call to pump the water from her apartment. Solomon's testimony concerning the flooding was corroborated by photographs showing water damage, and by witnesses who had seen water or evidence of water in Solomon's apartment.

Solomon did not suffer bodily injury as a result of the flooding. She testified, however, that the floods caused her great emotional anguish. The recurrent water and sewage left her "withdrawn," "depressed," and "ashamed," unable to work or to care for her children. She began to spend much of her time in a darkened bedroom, crying, and on two occasions she sent her children to stay with relatives, so that they might escape the conditions in her apartment. Two psychiatric experts testified that Solomon had suffered serious emotional injury as a result of her living conditions, and was in need of substantial psychiatric treatment.

Gem admits that water entered Solomon's apartment on several occasions, but denies that thirty "floods" occurred. At trial, Gem's employees described in detail Gem's maintenance procedures and its answering service for tenants' complaints, and testified that they had no memory or record of repeated reports of flooding in Solomon's apartment. Gem also gave evidence concerning the structure of Solomon's building and the possible causes of flooding, and argued that third persons were responsible for any floods that occurred.

The judge granted summary judgment for Gem on Solomon's count for negligent maintenance, reasoning that a claim of negligence could not support recovery for purely emotional harm unaccompanied by physical injuries. The judge submitted the remaining three counts to the jury. ² The jury returned verdicts for Solomon on each count, awarding her $35,000 for recklessly inflicted emotional distress, $10,000 for breach of the covenant of quiet enjoyment, and $1,000 for breach of the warranty of habitability. The judge subsequently awarded Solomon counsel fees, as permitted by the "quiet enjoyment" statute, G.L. c. 186, § 14, in an amount of slightly more than $40,000. Gem has appealed the judgments entered on the verdicts and fee award. Solomon asserts that she is entitled to recover the total of the three verdicts, and the counsel fees, and has appealed the summary judgment for Gem on her count for negligently-caused emotional distress.

We affirm the judgments entered for Solomon on her claims for breach of the warranty of habitability, reckless infliction of emotional distress, and attorneys' fees. We also affirm the judgment entered for Gem on Solomon's claim of negligence. We vacate the $10,000 award for interference with quiet enjoyment.

1. Reckless infliction of emotional distress. Our decisions in recent years have firmly established that a plaintiff may recover for emotional distress inflicted recklessly or intentionally. Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976); George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915 (1971). See Restatement (Second) of Torts § 46 (1965). In Agis, we listed four elements necessary to a recovery on this theory. The plaintiff must show "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; ... (2) that the conduct was 'extreme and outrageous' ...; (3) that the actions of the defendant were the cause of the plaintiff's distress; ... and (4) that the emotional distress sustained by the plaintiff was 'severe' ...." Agis, supra 371 Mass. at 144-145, 355 N.E.2d 315. If each of these elements is proven, the plaintiff can recover for purely emotional suffering unaccompanied by physical injury. Id.

Gem does not seriously challenge the finding of the jury that Solomon suffered severe emotional distress as a result of the floods in her apartment. Instead, Gem stresses that Solomon did not identify a specific "defect" in the apartment building that Gem, as landlord, should have repaired. On this basis Gem argues that it did not act recklessly, did not engage in outrageous conduct, and did not cause Solomon's floods.

The central thrust of Gem's contentions appears to be that its conduct was not the proximate cause of Solomon's injuries-that it was not legally responsible for her misfortune. As Gem points out, the source of the floods was not clear. The water appears to have entered Solomon's apartment primarily from an adjoining basement area. Two waste stacks, admittedly very old, extended from roof to basement collecting waste from the bathrooms, and on occasion may have backed up through a drain in the basement. Gem's plumber, however, testified that the plumbing system and stacks were in good repair and complied with State plumbing regulations. He also stated that backups in the waste stacks were probably caused by objects that other tenants had introduced through the toilets or roof vents. On the basis of this uncontroverted testimony, Gem argues that it acted reasonably in its plumbing maintenance and therefore was not responsible for the flooding.

Gem's legal responsibility, however, depends on the duties it owed to Solomon, and Gem's arguments concerning plumbing misstate the scope of a landlord's duty to its tenants. We have held that every landlord that rents residential property warrants to its tenants that the premises will be delivered and maintained in a habitable condition. Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 293 N.E.2d 831 (1973). At a minimum, this warranty imposes on the landlord a duty to keep the dwelling in conformity with the State Sanitary Code. Id. at 200 n.16, 293 N.E.2d 831. Crowell v. McCaffrey, 377 Mass. 443, 451, 386 N.E.2d 1256 (1979). See also Hemingway, supra 363 Mass. at 215-219, 293 N.E.2d 831 (Quirico, J., concurring in part and dissenting in part). A landlord's breach of this duty abates the tenant's obligation to pay rent, even when the landlord is not at fault and has no reasonable opportunity to make repairs. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). Further, a landlord that fails to maintain a habitable dwelling for its tenant is liable for resulting personal injuries, at least when the landlord has failed to exercise reasonable care in maintenance. Crowell, supra 377 Mass. at 450-451, 386 N.E.2d 1256.

There was evidence at trial that the wall between Solomon's apartment and the adjoining basement area was extremely porous. There was also testimony suggesting that Gem may have considered cementing the wall to prevent floods, but never carried out this plan. The jury could reasonably conclude that Gem's failure to do so caused Solomon's injuries-that but for Gem's inaction, no floods would have occurred. ³ See Williams v. Fontes, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 633, 635-636, 417 N.E.2d 963; W. Prosser, Torts § 41, at 237 (4th ed. 1971). Further, a section of the State Sanitary Code (received in evidence), provides that apartments must be watertight. 105 Code Mass.Regs. § 410.000 (1978). In light of our decisions holding landlords responsible for injuries resulting from breaches of sanitary code provisions, Gem's behavior was a sufficiently "proximate" cause to justify the imposition of liability. W. Prosser, supra at 244. Crowell, supra 377 Mass. at 450-452, 386 N.E.2d 1256.

Having recognized that an inference was warranted that Gem failed in its duty to prevent the flooding, we find ample evidence in the record from which the jury could conclude that the remaining elements of an action for reckless infliction of emotional distress-recklessness, outrageous conduct, and severe emotional distress ⁴ -were present. See Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976). Solomon testified that she had repeatedly complained to Gem...