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A housing court in Massachusetts has found a landlord liable to his tenant for injuries the man sustained when he fell through a railing while intoxicated.

The judge applied the theory of strict liability to the case, rather than ordinary negligence, which can hold the tenant at least partially responsible.

According to Massachusetts real estate attorney Richard D. Vetstein, Esq., with the Vetstein Law Group in Framingham, this case signals a disturbing trend which demonstrates an increasingly hostile environment toward landlords.

In a blog post detailing the case, Vetstein explains that the property in question is a mixed use commercial/residential building. The tenant crashed through a top floor guardrail to the pavement below and was seriously injured. While there was evidence presented that the tenant was drunk, other evidence indicated the guardrail may have been defective, a violation of the building code.

Often, premise liability cases such as this one are tried under the theory of negligence. A landlord is negligent if they act unreasonably. For instance, it is reasonable to expect a landlord to inspect the property periodically, to remove or warn tenants about hazards, and to follow building codes.

One of the more significant features of negligence law is the comparative fault standard, which allows the jury to consider the actions of the victim along with the actions of the person being sued.

In this case, the jury found that the landlord was negligent because of the defective guardrail, but jurors reduced that portion of the  award by 40%, the amount they say the tenant contributed to his own injury.

However, the bulk of the $385,000 award in this case comes from a strict liability claim.

Strict liability is used in cases involving extreme risk –like dynamite blasting, skydiving, or operating a zoo. Strict liability places an absolute burden on those who participate in a sanctioned, but ultra-hazardous activity to keep others safe from harm.  Generally, in strict liability cases, any comparative fault by the victim is not considered.

Vetstein explains that the troubling part of this case is the judge’s decision to allow the strict liability claim to go to the jury. While a Massachusetts building code provides that strict liability can be applied to the maintenance of a commercial building, like a theatre or factory, where those who enter would have no control over the premises and may be unfamiliar with it, that regulation generally doesn’t apply to residential buildings. The court decided here that a mixed use complex was “public enough” to fall within the strict liability standard.

That means that by violating the building code, a landlord will always be liable for a tenant’s injury, regardless of what the tenant is doing at the time of the accident.

Vetstein says he fears this precedent will expand landlord’s liability in a way that was never intended by the law.
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