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Warranties for Injuries in Massachusetts

Often times in a personal injury practice we handle accidents occurring on leased or rented premises. In the past, Massachusetts courts differentiated between people who were on a property with the Courts using terms such as an invitee, licensee, and trespasser. Since the pivotal case of Mounsey v. Ellard, 363 Mass. 693 (1973) invitees and licensees have been merged into one category, those who are lawfully on the premises. The category of trespasser remains.

In the landlord-tenant context, the Supreme Judicial Court, the highest court in Massachusetts, has permitted a claim for breach of warranty for habitability. However, until recently, the person making the claim needed to be someone who leased the property or somebody living at the property. This changed a few years ago in Scott v. Garfield, 454 Mass. 790 (2009) when the Supreme Judicial Court widened the warranty of habitability. Now, not only can tenants and their resident family members make a warranty claim, but tenants’ guests can too. Guests have a reasonable expectation that the tenant’s home is safe. The Court sees that as part of the landlord’s contract and duties. Accordingly, the landlord needs to ensure that the premises comply at a minimum with the building and sanitary codes. Crowell v. McCaffrey, 377 Mass. 443 (1979).

People may wonder why this is significant. After all, guests could previously make a claim under a negligence count. However, there are two major factors that explain the importance of this change. First, if a plaintiff sues under a warranty claim, he/she will not be subject to the allegation of comparative negligence. In a negligence claim, comparative negligence could significantly lower the award. For example, in the event that the client is found 40% liable for the accident, his/her award is diminished by 40%. And if the client is found at least 51% liable, there is no award. But in a warranty claim, this is not a concern. The plaintiff’s damages will not be reduced by comparative negligence and even in the case where a plaintiff is deemed 51% or more negligent, it will not be eliminated. Correia v. Firestone, 388 Mass. 342 (1983).

The second reason why the broadening of who can file a warranty claim is so important is that it allows clients the right to bring a 93A action. A 93A action is brought under the Massachusetts Consumer Protection Act, which declares unfair acts in trade or business as unlawful. There are major advantages in being able to bring a 93A claim, chief among them the right to recover attorneys’ fees and even multiple damages. (That decision is typically made by the judge after the trial.) This right comes about from the Attorney General regulation declaring any breach of warranty an unfair and deceptive act. 940 CMR 3.08.

These two key factors significantly help the plaintiff’s chances of recovering a large award in the event of an accident as a guest of a tenant.

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