Wolfberg v. Hunter
| Decision Date | 02 March 1982 |
| Citation | 385 Mass. 390,432 N.E.2d 467 |
| Parties | Stephen WOLFBERG v. William HUNTER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William A. Hunter, pro se (Jill S. Hunter, with him), for defendants.
M. Robert Dushman, Boston, for plaintiff.
Before HENNESSEY, C. J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.
In November, 1978, William and Jill Hunter (tenants) notified Stephen Wolfberg (landlord) of their decision to withhold rent, pursuant to G.L. c. 239, § 8A, because of the landlord's failure to remedy certain defects in their apartment, principally an infestation of rodents. The landlord commenced a summary process action for nonpayment of rent, which was transferred to the Boston Housing Court. The judge entered judgment against the landlord on his claim for possession of the premises, and in favor of the tenants on their counterclaims of damages for retaliatory eviction in violation of G.L. c. 186, § 18 (), breach of the common law warranty of habitability, intentional interference with quiet enjoyment in violation of G.L. c. 186, § 14, and three of their claims of violations of G.L. c. 93A, § 2: those relating to rodent infestation, improper trash disposal, and retaliatory eviction. The judge denied the tenants' claims for damages for infliction of emotional distress. All parties appealed. 1
The landlord later filed a motion to amend the judgment and for a new trial; the tenants filed a motion seeking, primarily, reconsideration of their emotional distress claim. The judge granted the landlord's motion to reduce the amount of damages awarded to the tenants on their G.L. c. 93A claim for failure to remedy the rodent infestation and inadequate trash disposal. He ruled that damages should be calculated by adding to the tenants' out-of-pocket expenses the difference between the fair rental value of the apartment they occupied and the amount they paid in rent. Since the tenants withheld rent for the three-month period at issue, 2 the judge ruled that they were not entitled to recover damages under G.L. c. 93A () for the conditions that prevailed in their apartment during those months. All parties appealed from the amended judgment. The parties made further motions; the judge allowed only a motion to correct a clerical error in the judgment.
The tenants subsequently moved for an award of additional attorney's fees. A judge of the Boston Housing Court awarded the tenants' attorney $400 in fees for his services as appellate counsel. The tenants filed a notice of appeal from that order. The landlord, however, withdrew his notice of appeal, and only the tenants' appeal is now before this court. 3
On appeal, the tenants claim that the judge erred in failing to find the landlord liable for infliction of emotional distress (under both the common law and G.L. c. 93A), 4 and that the judge improperly limited the damages recoverable under G.L. c. 93A for rodent infestation, during the period that the tenants withheld rent, to expenses actually incurred by the tenants in their attempts to remedy that condition. We affirm the judge's decision that the landlord is not liable for infliction of emotional distress. We reverse the judgment and remand the case for entry of an amended judgment on the issue of damages.
1. Facts. The landlord is the owner of a four unit apartment building located in the South End section of Boston. The tenants' lease ran from July, 1976, until March, 1979, when they vacated. The tenants paid their rent ($330 per month during the months at issue) in a timely manner until November, 1978, when they began to withhold rent pending the landlord's correction of State Sanitary Code violations.
In mid-September, 1978, the tenants first spoke to their landlord concerning a problem with mice in their apartment. The landlord told them to purchase a commercially available rodent poison and to deduct the cost from their rent. They purchased and used such a poison, but the problem nonetheless worsened over the next few weeks. The landlord, despite the tenants' requests, did not agree to hire a professional exterminator until late October. The professional exterminator attempted a total of four times between October, 1978, and January, 1979, to rid the tenants' apartment of mice. The rodent problem inside their apartment was not alleviated, however, until the landlord caulked certain holes in the foundation of the building, and until Hunter filled holes in the walls of the apartment with steel wool.
The landlord did not, as the tenants suggested, hire an exterminator to identify the holes in the foundation and in the apartment walls through which the rodents were gaining access, nor did he respond immediately to their request that he block those holes. The landlord did, however, block the holes in the foundation within two weeks of the tenants' request. With respect to the holes in the tenants' apartment walls, the tenants and the landlord came to no agreement. The tenants were dissatisfied with the landlord's suggestion that either he or his maintenance man come to the apartment and block the holes. As a result Hunter blocked most of the holes himself early in November. The remaining holes were blocked in January, 1979, when the landlord had his plumber remove the tenants' dishwasher to make these holes accessible.
On or about November 10, 1978, the tenants posted notices in their building and in three nearby buildings, also owned by the landlord, soliciting information about other tenants' problems with living conditions in those buildings (including rodent infestation), and proposing the formation of a tenants' union. The next day, the tenants informed the landlord that they were withholding their rent because of the rodent problems. The landlord responded by stating that he would serve the tenants with a fourteen-day notice to quit and let a court decide whether the tenants were justified in withholding rent.
On November 8, 1978, the tenants reported State Sanitary Code violations in their building to the housing inspection department of the city of Boston. A subsequent inspection revealed several violations relating to rodents and rubbish. By the time of trial, on January 29, and February 5, 1979, the conditions involving rubbish disposal had improved and the tenants no longer saw evidence of rodents in their apartment, although rodents could still be heard on occasion inside the apartment's walls and ceilings.
2. Recovery at common law for infliction of emotional distress. The tenants argue that the trial judge erred in finding that the evidence would not support a conclusion that the landlord knew or should have known that severe emotional distress was the likely result of his conduct, 5 and that therefore they should be permitted to recover for the common law tort of intentional or reckless infliction of emotional distress. They rely primarily on the language of Agis v. Howard Johnson Co., 371 Mass. 140, 144-145, 355 N.E.2d 315 (1976), where the court stated that, "in order ... to prevail in a case for liability under this tort ... (i)t must be shown (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 ...." (citing Restatement (Second) of Torts § 46, comment i (1965) ). The tenants claim that the landlord knew that his failure immediately to accept and act upon the tenants' suggestions regarding the appropriate means of stemming the rodent invasion would cause Mrs. Hunter severe emotional distress.
The evidence introduced in this case clearly supports the judge's finding that the landlord was not reckless under the "knew or should have known" standard enunciated in Agis. Within a week of first learning that Mrs. Hunter was becoming very upset as a result of the rodent infestation, the landlord had the premises visited a second time by a professional exterminator. Within that same week, the landlord learned that the holes in the tenants' apartment walls had been blocked. Within three weeks, and before he learned of the Boston housing inspector's discovery of State Sanitary Code violations involving the holes in the foundation, the landlord blocked those holes (albeit with steel wool, a substance which, according to the housing inspector, did not meet the code's standards for materials to be used in masonry repair). 6
The tenants have failed, therefore, to demonstrate that the judge was clearly wrong in finding that there was insufficient evidence that the landlord intended to inflict emotional distress or that such distress resulted from reckless conduct. The landlord's conduct toward the tenants was not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Restatement (Second) of Torts, supra at comment d. Compare the facts of this case with those of Boyle v. Wenk, 378 Mass. 592, 392 N.E.2d 1053 (1979); Agis v. Howard Johnson Co., supra; George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915 (1971).
3. Recovery for infliction of emotional distress under G.L. c. 93A, § 9. The tenants argue that the judge erred in denying them damages for emotional distress in connection with their G.L. c. 93A claim involving rodent infestation. The judge held that the landlord had violated Regulation XVI A 9, 20 Code Mass.Regs., Part 5 at 44 (1975), promulgated by the Attorney General of the Commonwealth pursuant to G.L. c. 93A. He held further, however, that G.L. c. 93A created no right in the tenants to recover damages for emotional distress suffered as a result of this violation.
General Laws c. 93A, § 9(1), as amended through St. 1978, c. 478, § 45, which was in effect on the date of entry of both the...
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