The “Who, What, When, Where and How” of Claims for Code-Related Injuries
by
Ryan P. Avery on Oct. 14, 2014
Accident & Injury Personal Injury Real Estate Construction
Summary: Significant legal precedent has developed in Massachusetts recently concerning liability for personal injuries resulting from defective or unsafe conditions found on commercial and residential properties.
Significant legal precedent
has developed in Massachusetts recently concerning liability for personal
injuries resulting from defective or unsafe conditions found on commercial and
residential properties. This issue holds significant implications
for owners, landlords, tenants and property managers.
The easiest way to analyze
liability for defective conditions on commercial and residential property is to
conduct a simple “Who, What, Where When, and How” with respect to the events
leading to those injuries sustained.
More specifically:
Who was
in control of the building at the time of the injury; owner? The landlord (if different from the
owner)? A property management company? A commercial tenant? The issue of control is typically determined
by analyzing the various contractual arrangements in place at the time of
injury, and the obligations assigned thereunder. More than one party may be liable for the
failure to make a premises safe.
What
type of building – commercial or residential? Strict liability will be imposed on any person
in control of a commercial property as a result of any personal injuries
sustained on the property due to building code violations. With respect to mixed-use buildings,
residential areas can be distinguished from areas open to public; if the injury
takes places on a residential area, the next question is:
When did
injury occur – before or after notice to the person or entity in control of the
property? With respect to residential
properties, damages will be awarded for injuries sustained as a result of known
defects that the person in control has failed to repair within a reasonable
amount of time.
Where on
the premises was the unsafe or defective condition causing the injuries found? Somewhere vital to the use of the leased
premises? Not every building code
violation amounts to a material danger to the health and safety of
occupants. With respect to injuries
taking place on commercial properties, this question is important for purposes
of analyzing the foreseeability of whatever injury has occurred. With respect to residential properties, this
question is of utmost importance, because defects found on an area vital to the
tenants’ enjoyment of the property will constitute a “breach of the implied
warranty of habitability” if not timely repaired; any injured party can
subsequently seek 3X the amount of their actual damages in Court.
How – for any personal
injury action, the building code violation must be the proximate cause of the
injury in question; that is, the injured party must prove that there was
greater probability that the injury complained of was more likely due to the
defect or code violation in question than any other cause.
If you have any question concerning liability for conditions discovered on a piece of commercial or residential real estate you own, please contact the attorneys at The Law Office of Peter M. Mirageas.
