MY COMMENTS:
I am not a fan of looting but I guess it has its place. Last week the “conservatives” on the SCOTUS decided to give something to the crowd by stating being gay is not a reason to get fired and that the Dreamers Act stays in place and this week the SJC of MA comes up the a pro-landlord decision (what?). I know it’s not like they are afraid of any riff-raff breaking in, all that trembling under their togas must be due to overactive air-conditioning.
Here they find that lawyers cannot double-dip.
Tenant could not recover because the jury found his negligence was higher than that of the landlord.
NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12761
ROBERT GOREHAM vs. JOSE C. MARTINS & others.1
Essex. December 6, 2019. – June 22, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Snow and Ice. Negligence, Snow and ice, Comparative. Landlord
and Tenant, Snow and ice, Habitability, Quiet enjoyment.
Damages, Breach of implied warranty of habitability, Breach
of covenant of quiet enjoyment.
Civil action commenced in the Northeast Division of the
Housing Court Department on December 9, 2011.
The case was tried before David D. Kerman, J., and
posttrial motions were considered by him.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Louis J. Muggeo (Jared J. Muggeo also present) for the
plaintiff.
Peter C. Kober for the defendants.
Christine A. Knipper & Timothy P. Whooley, for
Massachusetts Defense Lawyers Association, amicus curiae,
submitted a brief.
1 Rose S. Martins; and Martins Construction Company, Inc.
2
Martin J. Rooney, for Boston Housing Authority, amicus
curiae, submitted a brief.
GANTS, C.J. The plaintiff, Robert Goreham (tenant), was
the second-floor tenant of a three-family home in Salem
(premises) owned by the defendants Rose and Jose Martins
(landlords).2 In the winter of 2010, the tenant slipped and fell
on ice in the driveway adjacent to the premises, severely
injuring himself. He brought an action in the Northeast
Division of the Housing Court Department against the landlords
and Martins Construction Company, Inc.3 (snow plowing contractor)
(collectively, defendants), the contractor retained to remove
snow and ice from the driveway. A jury found the landlords
negligent for failing to exercise reasonable care in keeping the
driveway free of ice. However, they also found that the tenant
was comparatively negligent and that he was more responsible for
the injury than the landlords, resulting in a finding of no
liability on the negligence claim.
The tenant also brought claims against the landlords
alleging breach of the common-law implied warranty of
habitability and violation of the statutory covenant of quiet
2 Jose Martins died prior to trial.
3 Martins Construction Company, Inc., is owned and operated
by the landlords’ son.
3
enjoyment, G. L. c. 186, § 14. Based on the jury’s finding, the
judge found the landlords not liable on these additional claims.
On appeal, the tenant contends that, because the jury found the
landlords negligent, the judge was required as a matter of law
to find that the landlords committed a breach of the implied
warranty of habitability and violated the statutory covenant of
quiet enjoyment and that he should therefore recover personal
injury damages notwithstanding the jury’s finding that he was
comparatively negligent.
We conclude that a tenant may not be awarded personal
injury damages on a claim for breach of the implied warranty of
habitability arising from a landlord’s failure to keep common
areas reasonably free of snow and ice. We also conclude that,
based on the facts of this case, the tenant may not recover
personal injury damages under the statutory covenant of quiet
enjoyment.4
Factual and procedural background. We recite the facts as
the jury could have found them, reserving certain details for
later discussion.
The tenant had resided at the premises as a tenant at will
since March 1, 2004. The premises had two entrances: a main
4 We acknowledge the amicus briefs submitted by the Boston
Housing Authority and the Massachusetts Defense Lawyers
Association.
4
entrance located on the side of the building and a fire escape
located at the rear. The main entrance led out to a few steps,
which ended at a sidewalk, and the rear fire escape led out onto
the driveway. The tenant testified that he used only the rear
fire escape because it was “easier” to enter and exit his
apartment that way.
The tenant also testified that, prior to his accident, the
winter had been “very snowy” and “a lot worse than most other
winters.” In fact, it had snowed between nine and eleven inches
in the week prior to the tenant’s fall. The tenant also said
that the snow plowing contractor had done a “great job” of
plowing the driveway in previous years but that during that
winter “it was just terrible”; he did not, however, complain to
the landlords about what he considered to be the dangerous
condition of the driveway.
On January 25, 2010, the tenant decided to run some errands
after returning from work. He left the building from the rear
fire escape and began to walk down the driveway in his sneakers,
traversing “diagonally” to avoid the iciest spots. Although he
believed that he could safely navigate the driveway, he slipped
approximately five feet away from the steps leading to the main
entrance. A neighbor who lived across the street saw the tenant
lying on the driveway and went to assist him, almost falling
herself in the process. Emergency personnel transported the
5
tenant to the hospital, where he was diagnosed with a dislocated
ankle and a fractured fibula. As a result of those injuries, he
required multiple surgeries over the next few years and
continues to experience pain in his ankle.
In December 2011, the tenant brought an action in the
Housing Court against the landlords and the snow plowing
contractor. The complaint alleged that the landlords were
negligent with respect to the removal of snow and ice on the
driveway, that they committed a breach of the common-law implied
warranty of habitability, and that they violated the statutory
covenant of quiet enjoyment.5 The complaint also alleged
negligence against the snow plowing contractor.
After a hearing on several motions in limine, the judge
decided to submit only the tenant’s negligence claims to the
jury because the judge believed that the tenant could not
prevail on his claims against the landlords for breach of the
warranty of habitability and violation of the covenant of quiet
enjoyment claims unless the landlords were negligent; the judge
reserved disposition of those claims for himself after trial.
At trial, the judge also explained that, although there were no
5 Prior to trial, the Housing Court judge dismissed
additional claims for violation of G. L. c. 93A and for strict
liability under the building code, G. L. c. 143, § 51. The
dismissal of those claims is not challenged on appeal.
6
Massachusetts appellate decisions on the issue, he believed that
damages awarded under both the warranty of habitability and
covenant of quiet enjoyment claims were subject to apportionment
based on the tenant’s own negligence.
The jury, in a special verdict, found that the landlords
were negligent, the snow plowing contractor was not negligent,
the tenant was comparatively negligent, the tenant’s injuries
were fifty-three per cent attributable to the tenant’s
negligence and forty-seven per cent attributable to the
landlords’ negligence, and the tenant suffered damages in the
amount of $25,000. Because more than fifty per cent of the
tenant’s injuries were attributable to the tenant’s own
negligence, the judge concluded that the landlords were not
liable for negligence, breach of the warranty of habitability,
or violation of the covenant of quiet enjoyment. On the
warranty of habitability claim, he determined that the tenant’s
negligence amounted to “unreasonable misuse” of the rear fire
escape — a doctrine that he borrowed from our products
liability jurisprudence, citing Scott v. Garfield, 454 Mass.
790, 795 n.7 (2009). On the covenant of quiet enjoyment claim,
he concluded that comparative negligence applied and that the
tenant therefore could not recover damages because his
negligence was greater than that of the defendants. Judgment
entered for the defendants on all of the claims.
7
On November 29, 2017, the tenant filed motions for a new
trial, for additur, for judgment in his favor on the warranty of
habitability and covenant of quiet enjoyment claims, and for an
award of attorney’s fees on the covenant of quiet enjoyment
claim. He contended that unreasonable misuse and comparative
negligence were not applicable defenses to the warranty of
habitability and covenant of quiet enjoyment claims,
respectively, and that a finding of any negligence by the
landlords meant that judgment should enter for him on both
claims as a matter of law. The judge denied the motions, and
the tenant appealed from their denial.6 We transferred the
appeal to this court on our own motion.
Discussion. Before we consider the tenant’s claims for
personal injury damages under the implied warranty of
habitability and covenant of quiet enjoyment, we look first to
the evolution of our common law regarding negligence liability
for slip and falls on snow and ice.
1. Landlord liability in snow and ice cases. Under the
traditional common-law rules that governed premises liability in
the Nineteenth Century and approximately the first two-thirds of
the Twentieth Century, the standard of liability of a property
6 The tenant appeals only from the judge’s ruling and order
on the posttrial motions, not from the jury’s verdict.
8
owner for injuries that occurred on the premises depended on the
status of the plaintiff, that is, whether the plaintiff was a
tenant, an invitee, a licensee, or a trespasser. Papadopoulos
v. Target Corp., 457 Mass. 368, 370-371 (2010), citing Young v.
Garwacki, 380 Mass. 162, 164 (1980). “If the plaintiff was a
tenant, the landlord had no duty to the plaintiff to maintain
any area under the tenant’s control in a safe condition: the
lease was treated as a transfer of property, and the landlord
was only potentially liable for failing to warn the tenant of
hidden defects that the landlord was aware of at the time of the
lease” or for wantonly or negligently placing a dangerous
obstruction in a common area. Papadopoulos, supra at 371. See
Watkins v. Goodall, 138 Mass. 533, 536 (1885). Snow and ice
were regarded as potentially dangerous obstructions, but a
landlord was not liable for injuries sustained by a tenant from
a slip and fall in a common area on a “natural accumulation” of
snow and ice. Papadopoulos, supra at 372. Rather, “[w]here the
obstruction was snow or ice on stairs or a walkway, a landlord
could be held liable to the tenant only if he placed the snow or
ice there, or was otherwise responsible for it being there.”
Id. at 373.
In contrast, “[i]f the plaintiff was an invitee, defined as
a person invited onto the property by the property owner for the
property owner’s benefit, . . . the property owner owed a duty
9
to use reasonable care to keep the premises ‘in a reasonably
safe condition in view of all the circumstances, including the
likelihood of injury to others, the seriousness of the injury,
and the burden of avoiding the risk.'” Id. at 371-372, quoting
Mounsey v. Ellard, 363 Mass. 693, 708 (1973). This duty
required a property owner to make reasonable efforts to protect
invitees from dangerous conditions, including those arising from
snow and ice. Papadopoulos, 457 Mass. at 375.
“In 1977, in King v. G & M Realty Corp., 373 Mass. 658, 661
(1977) . . ., the court abandoned the common-law distinction
between a property owner’s duty of care with respect to a tenant
and an invitee, and imposed on a landlord a general duty to keep
the common areas of a leased premises in a reasonably safe
condition.” Papadopoulos, 457 Mass. at 375-376. Yet rather
than extend this reasonable care standard to all hazards,
including snow and ice, the court later announced a rule that
landlords were not liable for slip and fall injuries that
occurred due to the “natural accumulation” of snow and ice, no
matter whether the injured person was a tenant or invitee. Id.
at 376, quoting Aylward v. McCloskey, 412 Mass. 77, 79 (1992).
Only where property owners allowed “unnatural and dangerous
condition[s] of snow and ice” to arise could they be held
liable. Sullivan v. Brookline, 416 Mass. 825, 829-830 (1994).
10
In Papadopoulos, 457 Mass. at 369, we abolished this
“distinction between natural and unnatural accumulations of snow
and ice,” and applied to the removal of snow and ice the same
reasonable care standard that applies to all other hazards. As
a result, a tenant or invitee who slips and falls on snow or ice
in a common area of the premises may now bring a negligence
claim and recover damages from a landlord who failed to exercise
reasonable care in removing the snow and ice, regardless of
whether it was “natural” or “unnatural,” unless the plaintiff is
comparatively negligent and is more than fifty per cent
responsible for his or her own injuries. Id. See G. L. c. 231,
§ 85.
The tenant here argues that a plaintiff who is precluded
from recovering in negligence for a slip and fall on ice due to
comparative negligence may still recover damages for his or her
injuries under a contract claim for breach of the common-law
implied warranty of habitability because the comparative
negligence standard does not apply to such claims. Implicit in
this argument is the premise that a tenant may recover for
personal injuries from slip and falls on snow and ice in common
areas under the implied warranty of habitability. We now
examine that premise.
2. Implied warranty of habitability. Implied in every
residential lease is a warranty that the leased premises are fit
11
for human occupation and that they will remain so throughout the
tenancy. See Boston Hous. Auth. v. Hemingway, 363 Mass. 184,
199 (1973) (Hemingway). To understand the scope of this implied
warranty and to determine whether it extends to snow or ice on a
common area of leased premises, we begin by examining its
history and evolution.
This court first adopted the warranty of habitability in
1892 in the context of short-term residential rentals. See
Ingalls v. Hobbs, 156 Mass. 348, 350 (1892). The court reasoned
that, where a landlord rented a tenant a furnished house for a
summer, the landlord impliedly agreed to deliver a house fit for
human habitation, not one “infested with bugs.” Id. at 349.
Because the rented premises were uninhabitable, the court held
that the tenant could lawfully withhold or abate rent. Id. See
also Hemingway, 363 Mass. at 203 (“the landlord’s breach of its
implied warranty of habitability constitutes a total or partial
defence to the landlord’s claim for rent being withheld”).
In the 1940s, we expanded the scope of the warranty to
include a short-term tenant’s personal injuries resulting from a
landlord’s breach. See Hacker v. Nitschke, 310 Mass. 754, 757
(1942). In that case, a tenant leased a furnished cottage for
one month and was injured when a defective ladder leading to a
bunk bed collapsed. Id. at 755. As discussed supra, as the
common law existed at that time, the tenant did not have a claim
12
in tort because landlords were not liable for defects on the
premises unless those defects were hidden, the landlord knew
about them, and the landlord failed to warn the tenant. Id. at
756. Recognizing that public policy required that premises
offered for short-term lease be safe and fit for human
habitation, the court held that the tenant properly alleged an
action for breach of contract based on the implied warranty of
habitability, and that the jury could award damages where they
found that the tenant had suffered injury as a result of that
breach. Id. at 757. See also Horton v. Marston, 352 Mass. 322,
325-326 (1967) (tenant with nine-month lease could recover for
personal injuries under breach of contract theory where
defective oven exploded after tenant lit stovetop burner with
match).
We expanded the applicability of the implied warranty of
habitability to all residential leases regardless of their
length in Hemingway, 363 Mass. at 199. The plaintiffs were
long-term tenants of the Boston Housing Authority who withheld
rent pursuant to G. L. c. 239, § 8A, on the ground that their
apartments were in an uninhabitable condition in violation of
the sanitary code. Id. at 186. However, § 8A permitted tenants
to withhold rent under these circumstances only if they provided
proper notice to the landlords, which these tenants had failed
to do. Id. at 186-187. Consequently, the Boston Housing
13
Authority sued the tenants for nonpayment of rent, and judgment
entered against them. Id. at 187. Concerned about the harsh
effect of the tenants’ failure to provide proper notice, we held
that the implied warranty of habitability established as an
exception in Ingalls, 156 Mass. at 350, “must now become the
rule in an urban industrial society where the essential
objective of the leasing transaction is to provide a dwelling
suitable for habitation.” Hemingway, supra at 196-197. Damages
would accrue from the time the landlord knew or received notice
of the defective condition, whichever occurred first, and would
be calculated as the difference between the rental value of the
premises had it been habitable (“the rent agreed on may be
evidence of this value”) and the rental value of the premises in
its defective condition. Id. at 203. See McKenna v. Begin, 3
Mass. App. Ct. 168, 172 (1975).
Although this court in Hemingway explicitly did not
consider whether the warranty of habitability would apply to
personal injury claims by long-term tenants against landlords,
see Hemingway, 363 Mass. at 200 n.13, we reached that issue six
years later in Crowell v. McCaffrey, 377 Mass. 443, 444, 451
(1979), where a tenant was injured when a railing on the thirdfloor
porch gave way. Relying on the short-term lease decisions
in Hacker, 310 Mass. at 757, and Horton, 352 Mass. at 325, the
court held that the extension of the implied warranty of
14
habitability to long-term residential leases in Hemingway, supra
at 196-197, “logically carrie[d] with it liability for personal
injuries caused by a breach.” Crowell, supra at 451. However,
when Crowell was decided, in contrast with Hacker and Horton, a
tenant could prevail on a negligence claim against the landlord
who failed to “exercise reasonable care in keeping safe the
common areas of an apartment building or similar structure for
use by his tenants and their visitors.” Crowell, supra at 447,
citing King, 373 Mass. at 660-662. In fact, the court held in
Crowell, supra at 449, that the evidence was sufficient to
support a finding of liability on the tenant’s negligence claim.
The consequence of the evolution in our common law of the
implied warranty of habitability is that, where a defective
condition on leased premises results in injury to the tenant or
to a tenant’s guest, see Scott, 454 Mass. at 794-795, the
injured party may recover personal injury damages through both a
tort claim based on the landlord’s negligence and a contract
claim based on the landlord’s breach of the implied warranty of
habitability. If a tenant could recover personal injury damages
under the implied warranty for a slip and fall on ice in a
common area, we would need to consider whether the judge erred
as a matter of law in concluding that the tenant’s claim failed
because the jury’s finding of comparative negligence was
equivalent to a finding of “unreasonable misuse” of the rear
15
fire escape. However, we need not reach that question because
we conclude that personal injury damages for a landlord’s
unreasonable failure to clear snow and ice from a common area
may be recovered under our common law in a tort action based on
negligence but not in a contract action based on the implied
warranty of habitability.
In McAllister v. Boston Hous. Auth., 429 Mass. 300, 305-306
(1999), overruled on other grounds by Sheehan v. Weaver, 467
Mass. 734, 736 (2014), a tenant slipped and fell on ice on the
exterior stairs of the landlord’s premises and claimed that the
landlord was liable under the implied warranty of habitability
for failing to comply with State sanitary and building code
provisions that require the removal of snow and ice. We
declared that “the implied warranty of habitability applies to
significant defects in the property itself.” Id. at 305. And
we concluded that “[t]he natural accumulation of snow and ice is
not such a defect.” Id. at 306. However, as earlier noted,
under the common law at that time, the natural accumulation of
snow and ice was not deemed a defect in a tort claim for
negligence, even if the landlord acted unreasonably in failing
to clear it. See Sullivan, 416 Mass. at 827-828 (landlord not
liable where employees left ramp in icy condition after
shoveling it).
16
Now, under our common law, a landlord may be liable in
negligence for failing to act reasonably in snow and ice
removal, even if the accumulation of snow or ice was natural.
See Papadopoulos, 457 Mass. at 383. But in abolishing the
distinction between the natural and unnatural accumulation of
snow and ice in tort, we did not intend also to declare that a
tenant may now recover personal injury damages for a slip and
fall on snow or ice under the implied warranty of habitability.
Nor would recovery of personal injury damages in these
circumstances fit neatly within the implied warranty of
habitability.
The warranty of habitability is an implicit provision in
every residential rental contract and does not incorporate a
fault element. See Berman & Sons v. Jefferson, 379 Mass. 196,
200 (1979) (“Considerations of fault do not belong in an
analysis of warranty”). The warranty of habitability is not
intended to punish landlords for misbehavior but rather to
ensure that tenants receive what they are paying for: a
habitable place to live. Id. at 202. It recognizes that the
landlord’s promise “to deliver and maintain the demised premises
in habitable condition” and the tenant’s promise “to pay rent
for such habitable premises” constitute interdependent and
mutual consideration and that, consequently, “the tenant’s
obligation to pay rent is predicated on the landlord’s
17
obligation to deliver and maintain the premises in habitable
condition.” Hemingway, 363 Mass. at 198.
Strict liability for the rental of a leasehold that is not
habitable, based on the interdependence of rights and
responsibilities, is well-suited to the warranty’s original
context of rent abatement. It ensures that tenants who do not
receive what they are paying for may be compensated for the
reduced value of the premises during any period when it is
uninhabitable. See id. at 203.
But negligence, not strict liability, is the standard of
liability we generally apply in personal injury cases. As we
earlier explained, when we first awarded personal injury damages
on a warranty of habitability claim, tenants had little help
from negligence law to ensure that landlords made necessary
repairs, and we believed that the public policy of holding
landlords liable for furnishing unsafe premises justified
fitting a square peg (personal injury damages) into a round hole
(breach of the warranty of habitability). See Hacker, 310 Mass.
at 756-757. Despite this poor fit, we have continued to hold
that personal injury damages were recoverable for a breach of
the warranty of habitability even after a tenant could invoke
the same negligence standard as any lawful visitor. See Scott,
454 Mass. at 794-795; Crowell, 377 Mass. at 451. But in those
cases, there was considerable evidence that the landlord also
18
was negligent. See Scott, 454 Mass. at 796 (jury returned
verdicts in favor of plaintiff on both negligence and breach of
warranty of habitability claims); Crowell, 377 Mass. at 452
(jury could have found that landlord, in exercise of reasonable
care, could have discovered and remedied building and sanitary
code violations). See also Young, 380 Mass. at 164 (jury found
landlord negligent for failure to maintain premises). Perhaps
for that reason, we have consistently left unanswered the
question whether landlord liability for personal injury damages
under the implied warranty of habitability is strict liability
or whether it is subject to a negligence standard requiring
notice. See Scott, supra at 796 n.8; Simon v. Solomon, 385
Mass. 91, 98 (1982); Young, supra at 170 n.9; Crowell, 377 Mass.
at 452.
We need not answer that question here.7 Nor need we
consider whether, now that our common law requires that
7 We note that, in 1995, the California Supreme Court
reversed its earlier decision in Becker v. IRM Corp., 38 Cal. 3d
454, 457, 465 (1985), in which it held that a landlord was
strictly liable under the warranty of habitability for injuries
suffered by a tenant who slipped and fell against a shower door
made of glass that was not tempered. See Peterson v. Superior
Court, 10 Cal. 4th 1185, 1188 (1995) (“we erred in Becker in
applying the doctrine of strict products liability to a
residential landlord that is not a part of the manufacturing or
marketing enterprise of the allegedly defective product that
caused the injury”). In leaving behind the strict liability
standard, the California Supreme Court noted that “nearly all
states have recognized an implied warranty of habitability in
19
landlords exercise the same reasonable care towards tenants as
lawful visitors to the premises, we should retreat from the path
we previously have taken and allow tenants to recover for
personal injuries only in tort rather than in both tort and
contract.8 It suffices to say that, where personal injury
results from a slip and fall on snow or ice in a common area,
recovery of damages under our common law is limited to a tort
claim for negligence. Personal injury damages for such slips
residential leases,” but that Louisiana was the only other State
which imposed strict liability for personal injury claims. Id.
at 1205. At the time, Louisiana imposed strict liability upon
landlords by statute. Id. In 1996, however, the Louisiana
statute was amended to abandon strict liability and to adopt a
negligence standard instead. See Ford v. Bienvenu, 804 So.2d
64, 66 (La. Ct. App. 4th Cir. 2001).
8 We recognize that several of our sister States have
concluded that where personal injury is concerned, tort
principles provide a “more straightforward way” to delineate the
rights and duties of the parties. Favreau v. Miller, 156 Vt.
222, 229 (1991). See Auburn v. Amoco Oil Co., 106 Ill. App. 3d
60, 64 (1982) (“no action for personal injuries can result from
a breach of the implied warranty of habitability”); Chiu v.
Portland, 788 A.2d 183, 188 n.6 (Me. 2002) (“consequential
damages are an inappropriate remedy for breach of the statutory
warranty of habitability”); Curry v. New York City Hous. Auth.,
77 A.D.2d 534, 535 (1980) (finding it “quite improbable that the
[Legislature] contemplated extension of the principle of strict
liability to landlords for injuries and damages traditionally
the subject of tort liability”); McIntyre v. Philadelphia Hous.
Auth., 816 A.2d 1204, 1212(Pa. Commw. Ct. 2003) (permitting
recovery of personal injury damages on warranty of habitability
theory “would eliminate the fundamental distinctions between
contract and tort and only lead to further confusion regarding
the nature and role of these two theories of recovery”);.
20
and falls may not be recovered on a claim in contract under the
implied warranty of habitability.
There is a second reason for affirming the judge’s finding
that the landlord was not liable for breach of the implied
warranty of habitability, albeit on different grounds: viewing
the facts of this case in the light most favorable to the
tenant, as a matter of law there was no breach of the warranty.
Habitability is measured by minimum community standards, which
are generally, though not exclusively, reflected in the sanitary
and building codes. See Crowell, 377 Mass. at 451. Although
violations of the codes may provide compelling evidence that a
dwelling is not habitable, they do not establish per se breaches
of the warranty of habitability. See McAllister, 429 Mass. at
305 (“Not every breach of the State sanitary code supports a
claim under the implied warranty of habitability”). The
emphasis is on whether the premises are fit for human
habitation, not merely on whether the landlord committed a code
violation. Second, the violation must relate to the “provision,
maintenance, and repair of the physical facilities” of the
property. Doe v. New Bedford Hous. Auth., 417 Mass. 273, 282
(1994). “[T]he scope of the warranty of habitability includes
only the physical maintenance and repair of a dwelling unit.”
Id. at 281. Finally, the warranty of habitability applies only
21
to “substantial” violations or “significant defects.” See
McAllister, supra; Berman & Sons, 379 Mass. at 201-202.
The tenant makes no argument regarding whether the warranty
of habitability applies to the driveway; he proceeds on the
assumption that it does. Nor does he specify any building or
sanitary code violations that impaired the habitability of his
dwelling unit. We recognize that the sanitary code requires
that a property owner “shall maintain all means of egress at all
times in a safe, operable condition and shall keep all exterior
stairways, fire escapes, egress balconies and bridges free of
snow and ice.” 105 Code Mass. Regs. § 410.452 (2007). But,
even if we were to assume that the accumulation of ice on the
driveway violated this provision of the code, we decline to
extend the warranty of habitability to cover a violation of the
sanitary code that does not affect the habitability of a
tenant’s “dwelling unit.” See Doe, 417 Mass. at 281.
Given the strict liability standard, the scope of the
warranty of habitability must be interpreted to encompass only
those conditions that render the tenant’s apartment
uninhabitable. This does not mean that defects in common areas
under the landlord’s control can never render a dwelling
uninhabitable: if, for instance, the only way to exit the
building were through the driveway, and the landlord had dug a
gravel pit there, making any and all access to the apartment
22
dangerous, that would likely violate the warranty of
habitability because the tenant would be unable safely to access
the dwelling. However, those are not the facts in this case.
The tenant’s preference to use the rear fire escape when another
suitable and safe exit from the building existed does not
require us to conclude that the mere presence of snow and ice on
a driveway in the winter in Massachusetts rendered his apartment
uninhabitable. To do so would impose an unreasonable burden on
landlords given the realities of a New England winter.
2. Covenant of quiet enjoyment. Under G. L. c. 186, § 14,
a landlord who “directly or indirectly interferes with the quiet
enjoyment of any residential premises by the occupant” is
subject to liability.9 This statutory right of quiet enjoyment
9 General Laws, c. 186, § 14, provides in relevant part:
“Any lessor or landlord of any building or part thereof
occupied for dwelling purposes, . . . who is required by
law or by the express or implied terms of any contract or
lease or tenancy at will to furnish water, hot water, heat,
light, power, gas, elevator service, telephone service,
janitor service or refrigeration service to any occupant of
such building or part thereof, who willfully or
intentionally fails to furnish such water, hot water, heat,
light, power, gas, elevator service, telephone service,
janitor service or refrigeration service at any time when
the same is necessary to the proper or customary use of
such building or part thereof, . . . or any lessor or
landlord who directly or indirectly interferes with the
quiet enjoyment of any residential premises by the
occupant, . . . shall be punished by a fine of not less
than twenty-five dollars nor more than three hundred
dollars, or by imprisonment for not more than six months.
23
protects a tenant from “serious interference” with the tenancy,
meaning any “acts or omissions that impair the character and
value of the leasehold.” Doe, 417 Mass. at 285.
The statute does not require that the landlord act
intentionally to interfere with a tenant’s right to quiet
enjoyment. Al-Ziab v. Mourgis, 424 Mass. 847, 850 (1997). “In
analyzing whether there is a breach of the covenant, we examine
the landlord’s conduct and not his intentions.” Doe, 417 Mass.
at 285, citing Blackett v. Olanoff, 371 Mass. 714, 716 (1977).
Rather, liability under the covenant requires only “a showing of
at least negligent conduct by a landlord.” Al-Ziab, supra. The
key inquiry is whether the serious interference with the tenancy
is a “natural and probable consequence of what the landlord did,
what he failed to do, or what he permitted to be done” (citation
omitted). Doe, supra. Therefore, a landlord is liable for
“actual and consequential damages” under § 14 where the landlord
(1) “had notice of or reason to know” of the condition
interfering with the tenant’s quiet enjoyment of the premises,
Any person who commits any act in violation of this section
shall also be liable for actual and consequential damages
or three month’s rent, whichever is greater, and the costs
of the action, including a reasonable attorney’s fee, all
of which may be applied in setoff to or in recoupment
against any claim for rent owed or owing.”
24
and (2) acted at least negligently in failing “to take
appropriate corrective measures.” Al-Ziab, supra at 851.
In ruling on the covenant claim, the judge stated that the
jury’s finding of negligence against the landlords satisfied the
“fault or foreseeability” prerequisite to liability. See id.
(“some degree of fault or foreseeability should be a
prerequisite to liability under § 14”). He went on to state,
however, that where there was no showing of reckless, willful,
or intentional conduct on the part of the landlords, and where
liability was based solely on negligence, comparative negligence
principles applied. And because the jury found the tenant more
responsible for his injuries than the landlords, the tenant was
barred from recovery under the covenant. The landlords and the
amici urge us to adopt this standard, and the amici argue that
it would be unfair to provide for the recovery of statutory
damages on a showing of negligence while denying landlords the
defense of comparative negligence. The tenant argues that the
jury’s finding that the landlords were negligent satisfies the
covenant’s fault requirement; the tenant’s comparative
negligence is not relevant to liability.
We agree with the tenant that comparative negligence does
not apply to claims brought under G. L. c. 186, § 14. A
landlord who interferes with a tenant’s right to quiet enjoyment
is subject to both civil and criminal liability. G. L. c. 186,
25
§ 14 (landlords who violate statutory covenant of quiet
enjoyment “shall be punished by a fine of not less than twentyfive
dollars nor more than three hundred dollars, or by
imprisonment for not more than six months” and “shall also be
liable for actual and consequential damages or three month’s
rent, whichever is greater, and the costs of the action,
including a reasonable attorney’s fee”). Under a criminal
statute, an injured victim’s conduct is relevant only if it
justifies or mitigates the defendant’s conduct, such as where a
victim’s conduct justifies a defendant’s act in self-defense.
See, e.g., Commonwealth v. Kendrick, 351 Mass. 203, 210 (1966)
(circumstances of homicide committed in self-defense mitigate
crime from murder to manslaughter). Where, as with § 14, a
statute makes negligent conduct criminal, a landlord’s negligent
conduct is still criminal even if the injured victim was more
negligent. See Commonwealth v. Campbell, 394 Mass. 77, 87
(1985) (“In criminal cases, as opposed to civil negligence
suits, a victim’s contributory negligence, even if it
constitutes a substantial part of proximate cause [but not the
sole cause], does not excuse a defendant whose conduct also
causes” injury). Where a landlord may be found criminally
liable for negligence under § 14 regardless of the negligence of
the tenant, we are not persuaded that the Legislature intended a
different standard for the landlord’s civil liability. In the
26
absence of a strong indication of such legislative intent, we
will not apply the civil doctrine of comparative negligence to a
statute that provides for both criminal and civil liability.
However, the fact that comparative negligence is
inapplicable to claims brought under the statutory covenant of
quiet enjoyment does not necessarily mean that the landlords are
liable in this case: the landlord’s negligence is only one of
the necessary prerequisites to a finding of liability. To
succeed on his claim, the tenant must also demonstrate that the
landlords’ negligence caused “serious interference with his
tenancy” by “acts or omissions that impair[ed] the character and
value of the” leased premises. Doe, 417 Mass. at 285.
The “loss of use” of a common area under the control of a
landlord potentially might create a serious interference with a
tenancy. Id. at 286. In this case, however, no reasonable
finder of fact could find that the tenant lost the use of the
driveway because of the icy condition. He did not lose its use
as a parking area, because he was not entitled to park a vehicle
in the driveway under the lease. And even if the icy condition
caused him to lose its use as a safe means of egress to the
sidewalk, no reasonable finder of fact could conclude that the
temporary loss of this means of egress seriously interfered with
his tenancy where the premises had a main entrance that led
27
after a few steps to the sidewalk.10 The fact that the tenant
preferred to use the rear fire escape and access the sidewalk
from the driveway suffices to show that the icy driveway was a
temporary inconvenience, but it does not rise to the level of a
serious interference that impairs “the character and value of
the” leased premises. Id. at 285. We therefore affirm denial
of the tenant’s posttrial motion.
Conclusion. We affirm the judge’s denial of the tenant’s
posttrial motions. Judgment may enter for the defendant on all
claims.
Judgment affirmed.
10 At trial, the tenant did not present evidence that
exiting the building through the main entrance would have been
equally unsafe, and the jury’s finding that the tenant was
comparatively negligent and that he was more responsible for the
injury than the landlords indicates that they determined that
the tenant could have more safely exited the building through
the main entrance.