In Massachusetts, a Building Owner Can Be Liable for the Death of a Patron by Violating Building Safety Codes — Klairmont v. Gainsboro Restaurant, INC

Last year the Supreme Judicial Court of Massachusetts made an important ruling about wrongful death and survival claims in Klairmont v. Gainsboro Restaurant, INC. The ruling clarified whether loved ones could bring a survival action under Massachusetts consumer protection act, Massachusetts General Laws Chapter 93A § 9 (“c. 93A”).

Any time families lose a loved one, the loss comes with heavy emotional, physical, and financial costs. It can be especially burdensome when the reckless acts of another caused the loss. If a loved one has died due to the negligent acts of another, it is recommended that you speak with an experienced wrongful death attorney that can listen to your concerns and get you the compensation you need.

When a loved one dies due to the negligent acts of another there are two causes of action available to families. The first type, a wrongful death claim, allows certain family members to recover for injuries the family member personally suffered as the result of the loss. Damages can include such things as lost earnings, financial support, loss companionship, and moral support. In Massachusetts, the rules outlining wrongful death claims are found in Massachusetts General Laws Chapter 229 (“c. 229”).

The second type of claim is called a survival action, which gets its name because the claim survives the death of the person for which the claim is brought. Survival actions are brought by the deceased’s estate for any personal injury claims which the deceased would have claimed had he or she lived. Massachusetts survival statue can be found in Massachusetts General Laws Chapter 228 (“c. 228”).

Under the survival action statute, c. 228, the deceased’s estate can bring personal injury claims outlined in other statutes. In Klairmont v. Gainsboro, the estate brought a personal injury claim based upon Massachusetts consumer protection act, c. 93A. The act allows claims for injuries related to “Unfair or Deceptive Trade Practices” of businesses.

In Klairmont v. Gainsboro Restaurant, the deceased had been drinking at a restaurant. He walked into an area of the restaurant not normally used by patrons to use his phone. The patron fell down a stair case, later dying. The stairs had been built in the 1980s and then rebuilt again in the 1990s, both times without the required building permits. Only a vinyl sheet covered the staircase, and the top stair did not have a landing. A two by four had been nailed to the wall for a railing. All of these violated building code. The manager had complained to the restaurant owner about the stairs and employees were frequently warned about the dangerous stairs.

The trial judge and jury determined that none of the hazards would have existed had the establishment applied for the appropriate permits. The trial judge ruled that “knowingly, intentionally and willfully” building dangerous stairs in clear violation of building codes violated the consumer protection act. The judge awarded 750 thousand in damages. 93A allows for trebling of damages for willful on knowing violations, to which the trial judge also awarded 6.7 million in damages.

In determining whether a survival action claim could be brought for building code violations, the supreme court ruled that in “limited circumstances” 93A claims are within the scope of c. 228 and may be allowed when defendant’s violate building regulations. The court held that tort claims contemplated in c. 228 included 93A violations.

The plaintiff must prove the violation is unfair, deceptive, and occurs in trade or commerce. In the current case, the court noted that building a dangerous stair case in violation of building codes and maintaining the knowingly dangerous staircase for twenty years did constitute an unfair and deceptive practice perpetrated in the trade of commerce.

If a person suffers serious injuries or death in a slip and fall incident on another person’s business premises, it is important to hire an attorney knows the legal intricacies and best methods to prove the property owner was at fault.

Local attorney, John C. Manoog III, has extensive experience handling Premises Liability claims. For a free initial consultation, call the office at 888-262-6664 or reach us by email. There is always someone available to talk to you about your case. Additional Resources: Massachusetts Law About Consumer Protection, Feb. 23, 2014, Commonwealth of Massachusetts. Trial Court Law Libraries.

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