Do Violations of the Building Code Violate Chapter 93A?

The Massachusetts Consumer Protection Act, General Laws Chapter 93A, § 2, prohibits “unfair or deceptive acts or practices in the conduct of trade or commerce.” Since Chapter 93A was enacted in 1967, the Commonwealth’s courts have continued to define the scope and substance of the conduct that the law prohibits.

When it comes to building code violations, courts have rejected a bright-line rule for determining liability under Chapter 93A. Instead, the facts and circumstances of each case are analyzed with a focus on three questions: (1) Is the building code provision that was allegedly violated intended to protect consumers? (2) Was the conduct leading to the violation unfair or deceptive? (3) Did the conduct occur in trade or commerce?

One recent case where the Massachusetts Supreme Judicial Court answered “yes” to all three questions and affirmed an award under Chapter 93A was Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 173-176 (2013). In Klairmont, a lawsuit was brought by the parents of a young man who died after falling down a restaurant’s back staircase. In violation of multiple provisions of the building code, the stairs had no landing, no top door, and were partially obscured. The Supreme Judicial Court ruled that Chapter 93A recovery was proper because the restaurant intentionally and repeatedly failed to acquire necessary permits for the stairs, and the restaurant’s conduct was deceptive and motivated by economic gain.

In contrast to the ruling in Klairmont, in 2014, a tourist who was injured after tripping in Boston’s Old North Church argued unsuccessfully to the Massachusetts Appeals Court for Chapter 93A relief. In Patterson v. Christ Church in the City of Boston, 85 Mass. App. Ct. 157, 163-165 (2014), the Appeals Court rejected the plaintiff’s argument that Old North Church was liable under Chapter 93A because parts of the historic church were not in compliance with Architectural Access Board regulations when the plaintiff was injured. The Appeals Court contrasted the difference between the church’s noncompliance with Architectural Access Board regulations and the safety regulations violated in Klairmont. Unlike in Klairmont, the Appeals Court answered “no” to the three questions central to determining Chapter 93A liability. This is because the regulations in Patterson concerned accessibility, not consumers, and there was no evidence that Old North Church avoided compliance in a deceitful way or for economic reasons. Despite their opposite outcomes, or perhaps because of them, Patterson and Klairmont clarify the circumstances where building code violations can mean liability under Chapter 93A.

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