Last
week, the SJC ruled on the Klairmont v. Gainsboro Restaurant case and decided for the first time that a
violation of the building code can, in some circumstances, constitute a
violation of Chapter 93A.
The case involved the death of a Northeastern University college student in 2007. He had left the defendant bar to take a call on his cell phone and ducked into the stairwell of the basement of the bar. There, with no door to the basement and no landing, he tumbled backwards down the stairs and later died from his injuries. The decedent's parents brought suit against the bar on claims of wrongful death and violations of Chapter 93A. The bar had never obtained a building permit for the work it performed on the basement stairs.
Affirming the superior court decision, the SJC found that the building code violations did, in this instance constitute a violation of 940 CMR 3:16. Had the bar obtained a building permit, the bar would have been required to install a door at the top of the stairs, rather than using the vinyl strips it had in place, a landing would have been required and handrails and lighting would also have been installed. In short, had a permit been obtained the building code followed, it is likely the decedent would not have been been able to access the basement, let alone fall down a flight of stairs.
The case involved the death of a Northeastern University college student in 2007. He had left the defendant bar to take a call on his cell phone and ducked into the stairwell of the basement of the bar. There, with no door to the basement and no landing, he tumbled backwards down the stairs and later died from his injuries. The decedent's parents brought suit against the bar on claims of wrongful death and violations of Chapter 93A. The bar had never obtained a building permit for the work it performed on the basement stairs.
Affirming the superior court decision, the SJC found that the building code violations did, in this instance constitute a violation of 940 CMR 3:16. Had the bar obtained a building permit, the bar would have been required to install a door at the top of the stairs, rather than using the vinyl strips it had in place, a landing would have been required and handrails and lighting would also have been installed. In short, had a permit been obtained the building code followed, it is likely the decedent would not have been been able to access the basement, let alone fall down a flight of stairs.
What makes this case important in the realm of home improvement contractor law is that to date, neither the SJC, nor the Appeals Court has found that a violation of the building code, by itself constitutes a 93A violation. Those Courts have upheld numerous decisions under Chapter 142A, the home improvement contractor statute. However, Chapter 142A only applies to home renovation projects and does not apply to new construction.
There is still a disconnect between Chapter 142A for renovations and new construction. For renovations, a violation of the building code is a per se unfair or deceptive act or practice. For new construction, even after this case, 93A liability is not automatic.
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