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Who is responsible when a construction worker is injured due to unsafe working conditions? Often the injured worker is an employee of a subcontractor. Is the owner of the site liable? What about the general contractor, other subcontractors, or the subcontractor which employs the injured worker? The answer will often depend on the amount of control over the site and the work retained by the various parties.

Consider a hypothetical in which a painter, Bob, is injured when the scaffolding on which he is standing collapses because it was improperly erected. Bob is employed by High Wire Painting, Inc., a contractor. High Wire is employed by the site owner, a bank. At the time of the accident, Bob was not wearing a safety harness as required by state regulations.

The bank, through its manager, Johnson, acts as its own general contractor, employing various contractors for specific parts of the job. High Wire reports to Johnson, but there is no written contract between High Wire and the bank.

Johnson, on behalf of the bank, visits the construction site almost every day. While on site, Johnson has the opportunity to examine the scaffolding and to observe the manner in which High Wire and its employees, including Bob, are doing their work. He can observe that Bob is not wearing fall protection on the day of the accident or on any prior day.

The bank, through Johnson, exercises some control over the manner in which High Wire and Bob do their work, giving specific directions as to how particular areas are to be painted. In addition, High Wire and Bob are told that all questions about the work should be directed to Johnson.

Based upon these facts, Bob has a reasonable likelihood of proving that although the bank hired an independent contractor, High Wire, to perform the painting work, the bank retained sufficient control over the work, including safety issues, to have a responsibility to protect the safety of persons on the worksite.

The general rule is that, as stated by the Supreme Judicial Court in Corsetti v. The Stone Company,

if the employer [of an independent contractor] retains no control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise and he, rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it’.[1]

However,

if the employer retains the right to control the work in any of its aspects, including the right to initiate and maintain safety measures and programs, he must exercise that control with reasonable care for the safety of others, and he is liable for damages caused by his failure to do so….

… “The rule … is usually, though not exclusively, applicable when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job. In such a situation, the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know that the subcontractors’ work is being so done, and has the opportunity to prevent it by exercising the power of control which he has retained in himself.” Id., comment b.[2]

“Whether an employer has sufficient control over part of the work of an independent contractor to render him liable … is a question of fact for the jury.”[3]

The amount of control retained need not be significant to trigger liability on the part of one who employs a contractor. As noted by the Corsetti Court, the amount of control need not be such as would establish a master/servant (employment) relationship, rendering the employer vicariously liable for negligent conduct of the employee within the scope of the employee’s employment. Further, the control “need not descend to the last detail of method or operation for the imposition of liability to result….”[4]

On the other hand,

it is not enough, that [the employer] had merely a general right to order the work stopped or resumed, to inspect its progress, or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such retention of a right of supervision that the contractor is not entirely free to do the work his way.[5]

In addition, before liability can be imposed on the employer of an independent contractor it must be shown that the employer knew or should have known of the dangers posed by the contractor’s performance and that the employer had the opportunity to use its retained control to remedy the danger.[6]

The cases concerning retained control are highly fact-specific and often focus heavily on the provisions of a contract between the owner and the general contractor, the general contractor and subcontractors, or both, especially those provisions allocating responsibility for construction site safety.

In our hypothetical there is no contract. However, the facts tend to support the conclusion that the bank retained at least some control over the work, including safety issues, that the bank, though Johnson, knew or should have known that High Wire’s employees, including Bob, were working on scaffolding without required fall protection, and that the bank could have exercised its retained control to require that the work be continued in compliance with fall protection requirements.

As set forth above, Johnson, on behalf of the bank, visited the construction site almost every day. He, therefore, had the opportunity to examine the scaffolding, to observe the manner in which High Wire and its employees were doing their work and to see that they were not wearing fall protection on the day of the accident or on any prior day. Johnson also exercised some control over the manner in which High Wire and its employees did their work. For example, he gave them detailed directions about which items to paint.

Most importantly, High Wire and its employees, including Bob, understood that with regard to construction issues of any type, they were to follow the decisions and direction of Johnson/the bank.[7]

Thus, the amount of control retained by the bank arguably exceeded a mere right to inspect and to order the work stopped due to safety violations, which the courts have held to be insufficient to render an owner liable. The bank controlled, at least to some degree, the details of the work and the manner in which it was being done. A court would likely find that sufficient to impose liability on the bank under a theory of retained control. Bob should consider pursuing a claim against the bank.

If you have been injured in a construction accident, you should contact an attorney who can analyze the facts surrounding your injury, identify those parties who may be responsible and take steps to protect your rights.

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[1] Corsetti v. The Stone Company, 396 Mass. 1, 10 (1985).

[2] Id. at 10-11. (Footnote references omitted).

[3] Corsetti, 396 Mass. at 11.

[4] Paradoa v. CAN Ins. Co., 41 Mass. App. Ct. 651, 654 (1996); Cabreira v. Verizon New England, Inc., 2007 WL 1829382, *4 (6/14/07).

[5] Restatement (second) of Torts, §414 com. “c”; Foley v. Rust Intern., 901 F.2d 183, 184 (1st cir. 1990); Lopez v. Equity Office Management, LLC, 597 F. Supp.2d 189, 193 (D. Mass. 2009); Kelliher v. Brandeis University, 2008 WL 1932096, *2 (Mass. Super. 4/24/08); Bayliss v. Hannan Construction Corp., 2007 WL 738925, *2 (Mass. Super. 2/14/07); Cabreira v. Verizon New England, Inc., 2007 WL 1829382, *4.

[6] Corsetti, 396 Mass. at 10-11; Lopez v. Equity Office Management, LLC, 597 F. Supp.2d 189, 193 (D. Mass. 2009).

[7] See Callender, 2007 WL 2705529 (holding that where plaintiff’s employer viewed defendant company’s president as someone from whom it would accept direction, there was at least an issue of fact to be decided by the jury as to whether defendant company was a general contractor and had duties based on retained control under Corsetti).

An amendment to the Massachusetts Rules of Professional Conduct, effective January 1, 2013, makes mandatory the use of a written fee agreement in situations where it had merely been recommended before.

The pre-2013 version of Rule 1.5, concerning fees, states,

The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (Emphasis added).

As amended, Rule 1.5(b) (1) removes the “preferably in writing” clause, stating instead, “the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing before or within a reasonable time after commencing the representation.”  As under the pre-2013 version, a written agreement is not required where “the lawyer will charge a regularly represented client on the same basis or rate.”  In addition, the new Rule 1.5(b) (2) adds an exception for “a single-session legal consultation or where the lawyer reasonably expects the total fee to be charged to the client to be less than $500.”

A recent Superior Court decision may signal an expansion of an important theory by which a slip and fall plaintiff can hold a commercial property owner liable for damages.  The Court in Mills v. American Multi-Cinema, Inc., applied the “mode of operation” theory to hold the defendant cinema owner liable to a patron who, while walking in a darkened theater, slipped on food which had accumulated on the floor and was injured.  Application of the mode of operation theory to a non-supermarket defendant offers slip and fall plaintiffs an important new weapon.

The traditional premises liability rule.

Under traditional premises liability rules, where a foreign substance causes a plaintiff invitee’s slip and fall, the plaintiff can establish negligence on the part of the business owner in one of three ways: (1) by proving that the defendant caused the substance to be there (2) by proving that the defendant had actual knowledge of the existence of the foreign substance; or (3) by proving that the foreign substance was present on the defendant’s premises for such a length of time that the defendant should have known about it.  If, under (2) or (3), above, the owner knows or should know of the dangerous condition, then the plaintiff must also show that the owner should have expected that invitees would not discover the danger or protect themselves from it, and that the owner failed to exercise reasonable care to protect invitees from the danger.

The Sheehan decision.

In Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007), the Supreme Judicial Court adopted the so-called “mode of operation” approach, which focuses on whether the nature of the defendant’s business gives rise to a substantial risk of injury to customers. Under this approach, where a store owner’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner can be held liable for injuries to a customer if the customer proves that the owner failed to take all reasonable precautions necessary to protect customers from these foreseeable dangerous conditions.

The Sheehan Court held that the defendant supermarket’s use of a self-service mode of operation (in which customers select their items from the shelves rather than being waited on by store personnel) created the foreseeable risk that products would end up on the floor, posing a danger to customers who might be distracted by the store’s attractive displays of products. The plaintiff in Sheehan had slipped on a grape which had fallen to the floor in the self-service produce section of the store.

According to the Sheehan Court, the mode of operation approach does not eliminate the requirement that the store owner knows or should know of the presence of the foreign substance on the floor prior to the accident. However, notice is presumed where the owner knows or should know that its very method of operation is likely to cause such dangers. The plaintiff is relieved of the burden of proving notice by, for example, showing how long the foreign substance has been on the floor. The plaintiff is still required to show that the accident was caused by a foreign substance or other dangerous condition and that the store failed to take reasonable measures, commensurate with the dangers of self-service, to make the store safe for patrons. The plaintiff must also show that the dangerous condition was caused by the self-service mode of operation and not by other causes (e.g. a fall caused by a newly waxed floor). 

Expanded application of the mode of operation theory.

Although the mode of operation approach could, theoretically, apply whenever a defendant’s method of doing business poses foreseeable dangers to customers, until recently, the courts have applied it only in cases where defendant businesses were self-service establishments similar to supermarkets.

In Sarkisian v. Concept Restaurants, Inc., 2012 WL 5337230 (Mass. App. Div. October 19, 2012), the Massachusetts Appellate Division referred to a possible expansion of the mode of operation doctrine in future cases.  The Sarkisian Court held the doctrine inapplicable because the establishment in question (a night club where drinks were served by a bar tender) was not self-service.  However, the Court noted that the doctrine may, in the future, be expanded to cover situations in which, despite the lack of self-service, the owner’s mode of operation creates a foreseeable risk of injury.

In Mills, the Superior Court (Cornetta, J.), applied the mode of operation theory to a movie theater, a non-self-service defendant.  The plaintiff had arrived at the theater late for the movie she intended to see.  Having obtained tickets, she entered the darkened theater while the movie was showing.   After walking about six feet into the theater, the plaintiff slipped and fell forward, striking her shoulder on a metal railing and sustaining injuries.

The Superior Court held that the unique condition in a darkened movie theater warranted application of the mode of operation doctrine instead of traditional rules:

A theater (or cinema) is a unique venue.  Of necessity, it is a dimly lit or darkened space when a performance is being shown.  Often, (as in this case) there are food and beverage concessions owned and operated by the theater offering invitees to purchase food and beverages and to take them into the darkened auditorium where the performance is playing.

Persons entering this unique venue are often unable to observe the conditions of floors, aisles, and seats which may harbor hazards to unsuspecting patrons….

It is because of this unique environment that the traditional approach to premises liability is inadequate to the task of providing reasonable safety conditions….

Thus, the Mills Court limited its application of the mode of operation doctrine to the particular circumstances of the case before it, involving a darkened commercial premises made dangerous by the owner’s provision of food and beverages to patrons.  The Court even noted that traditional premises liability rules might apply to fully illuminated areas in the theater lobby.

Nevertheless, Mills represents an expansion of the mode of operation doctrine to a non-self-service defendant. It appears to be a step toward the expansion predicted in Sarkisian. Certainly, Mills supports application of the mode of operation doctrine whenever the defendant method of doing business both creates foreseeable dangers and makes it difficult for patrons to protect themselves.

It is a nightmare scenario.  After spending years building a successful business, you receive by email the resignation of your star salesperson.  Although he claims to want to spend more time with family, you soon discover that he has, in fact, started working for a competing business.  He solicits the customers he served for your business to follow him to his new employer, and many do so.  He also takes with him confidential trade secrets, including your customer lists and the secret plans for a product your business expects to begin selling next year.  Overnight, your business may lose millions of dollars in current and future sales.

A company’s trade secrets are valuable assets which give the company a competitive advantage and may be essential to its very survival.  While secret formulas immediately come to mind, many other types of information may qualify as trade secrets, including detailed quotes for work performed, information about sources of and special rates paid for raw materials, special methods of doing business or information about the history of particular customers’ accounts, among others.  Clearly, no company wants its trade secrets to fall into the hands of a competitor.  Massachusetts law offers protection to trade secrets, but only when the company owning those secrets takes reasonable steps to safeguard them.  Has your company protected itself?

The elements of a trade secrets claim.

To succeed on a claim for misappropriation of trade secrets or confidential business information, in violation of G.L. c. 93, § 42, and common law, a plaintiff must prove that:

(1) the information in question is a trade secret, (2) [plaintiff] took reasonable steps to preserve the secrecy of that information, and (3) [defendants] used improper means, in breach of a confidential relationship, to acquire and use that trade secret.[1]

Where a defendant knowingly benefits from a trade secret that a third party has obtained from its owner via breach of a confidential relationship, the defendant is liable for misappropriation of trade secrets.[2]  Thus, where an employee leaves his or her employer, goes to work for a competing business, and uses the former employer’s trade secrets to the new employer’s advantage, the new employer is liable if it was aware of the misappropriation.  

When is information a trade secret?

The first step in proving a claim for misappropriation of trade secrets is to establish that the information taken qualified as a trade secret.  General business information and routine data of a particular company normally is not protectable as confidential.  Massachusetts courts consider six factors in determining whether information constitutes a trade secret:

(1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the employer to guard the secrecy of the information; (4) the value of the information to the employer and to his competitors; (5) the amount of effort or money expended by the employer in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.[3]

Where the evidence as to these factors conflicts, the existence of a trade secret is a question of fact for the jury.[4] 

It is particularly important that a company take reasonable measures to protect information which it regards as a trade secret.  If the company fails to safeguard the information, it will be difficult to prove that the information is both secret and deserving of legal protection.  The reasonableness of measures taken to protect a trade secret depends on the facts of each case.[5]  Heroic measures need not be taken. A court will consider:

(1) the existence or absence of an express agreement restricting disclosure; (2) the nature and extent of security precautions taken by the possessor to prevent acquisition of the information by unauthorized third parties; (3) the circumstance under which the information was disclosed … to the extent they give rise to a reasonable inference that further disclosure, without the consent of the possessor, is prohibited; and (4) the degree to which the information has been placed in the public domain or rendered “readily ascertainable”.[6] 

Did the defendant obtain access to the trade secret through improper means in breach of a confidential relationship?

A company suing for misappropriation of trade secrets must also prove that the defendant obtained the trade secrets improperly through a breach of the defendant’s confidential relationship with, and his fiduciary duty to, the company.  An employee who ha signed a confidentiality agreement obviously acts improperly by misappropriating secret information covered by that agreement.  However, even an at-will employee who has not signed a confidentiality agreement owes his or her employer a duty not to steal the employer’s trade secrets.[7] 

Did the defendant use the misappropriated trade secrets and did the plaintiff company sustain harm as a result?

To prove a claim for misappropriation of trade secrets, the plaintiff must show that the defendant used the information and that the plaintiff was harmed as a result.  The required use and harm can be inferred based on the circumstances.  In Network Systems Architects Corp. v. Dimitruk, 2007 WL 4442349 (Mass. Super. 12/6/07), an employee had taken trade secrets, including information about customer accounts and proposals, from his employer, NSA.  After beginning work for his new employer, Accunet, the employee contacted customers he had serviced for NSA and convinced them to follow him to Accunet.  The court held that a jury could reasonably infer that the employee had made use of the trade secrets on behalf of Accunet and that such use had played some role in NSA’s loss of the customer to Accunet.  The court explained:

The evidence offered, including Lundberg’s findings, would support findings that Dimitruk sold to Bain on behalf of NSA; that shortly before his departure he communicated with Bain regarding his plans; that documents relating to Bain were on both laptop computers, and were among those deleted from the computers …, and that after Dimitruk’s departure Bain told [NSA] that it was transferring its business to Accunet.  From these facts, a factfinder could reasonably infer that Dimitruk made use of the NSA documents in his possession for purposes related to sales to Bain on behalf of Accunet, and that his use of such documents played some causative role in Accunet’s success in accomplishing those sales.  That is enough to prevent summary judgment.

2007 WL 4442349, *8.  (Emphasis added.)

What should you do?

Protecting trade secrets is primarily a matter of using common sense.  If your company wants certain sensitive information to remain secret, take steps to protect it.  A company hoping to protect its trade secrets should obtain confidentiality agreements from its employees, should expressly inform employees that the information is secret and confidential, and should ensure that access to the secret information is restricted to those employees who “need to know.”  If the information is in the form of computer files, they should be password protected.  Access to paper documents should be similarly limited, perhaps by placing them in a locked room.  

Your company’s trade secrets are valuable assets and perhaps critical to its future survival.  While Massachusetts law protects trade secrets, you must do your part by taking reasonable precautions to preserve their secrecy.

A recent order of the Administrative Justice of the Superior Court’s Business Litigation Session restricts the use of motions which dispose of some, but not all, claims or issues in a case.  Permission of the Court must now be obtained prior to filing such a motion.

In her order, which took effect September 4, 2012, Judge Judith Fabricant noted that motions for partial summary judgment, to dismiss or for judgment on the pleadings as to less than all claims, and other partial dispositive motions “consume substantial amounts of the court’s and the parties’ time and resources but often do not substantially reduce the length of the litigation or trial.”  Therefore, prior to filing such a motion, “the moving party shall confer with all other parties concerning [the motion’s] benefits and costs … its scope and effect on the balance of the litigation, and the time needed to prepare, argue and decide the motion.”

The moving party (or all parties if they have agreed) must then request a status conference with the Court.  That request may be made by a telephone call or brief letter to the session clerk.  At the conference, the Court and the parties will discuss “the proposed filing of the motion and whether its presentation to and disposition by the Court will materially and substantially advance or reduce the scope of the litigation.”  The Court will then decide whether to permit the filing of the motion and, it so, will develop a briefing schedule.

A copy of Judge Fabricant’s order can be found here.

The rules governing expert disclosures and default judgments are about to change.  Amendments to both the Massachusetts Rules of Civil Procedure and the Superior Court Rules will take effect January 1, 2013.

Expert disclosures.

A new Superior Court Rule 30B requires that the expert disclosure required by Mass. R. Civ. P. 26(b) (4) (A) (i) (“regarding any expert who is retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony and whose testimony is to be presented at trial”), be signed not only by the party but also by the expert.  The expert’s signature certifies that “the disclosure accurately states the subject matter(s) on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion to which the expert is expected to testify at trial.”

Default judgments.

Rule 55(b)(2) has been amended to provide that, at least 14 days prior to any hearing on a motion for default judgment, the moving party must give notice to all other parties, including any party against whom the judgment by default is sought, of the time and place of the hearing.  The notice must include a statement “setting forth the nature and type of all damages requested and the amount of any damages that are a sum certain ….”  The prior version of the Rule required only a seven-day notice to defendants who had appeared in the action (not to a defendant who had never appeared and who was the target of the motion for default judgment).

The “all damage” language of the new Rule 55(b)(2) requires the moving party to set forth both unliquidated damages (e.g. pain and suffering damages) and liquidated or sum certain damages.

The amendment to Rule 55(b) (2) is intended to solve a problem created by the Supreme Judicial Court’s decision in Hermanson v. Szafarowicz, 457 Mass. 39 (2010), in which the Court invalidated the first sentence of Rule 54(c), which had provided that a default judgment may not exceed the amount requested in the demand for judgment.  The Court found that this provision of Rule 54(c) conflicted with Massachusetts G.L. c. 231, §13B, which prohibits a demand in a complaint for a specific monetary amount, unless the damages are liquidated or ascertainable by calculation.  The problem created by Hermanson wasthat a defendant served with a complaint asserting claims for both liquidated and unliquidated damages, and faced with a motion for default judgment, would have no way of knowing how much the plaintiff was seeking in unliquidated damages, making it difficult for the defendant to decide whether it made financial sense to defend or to default.  Under the amended Rule, the 14-day notice will inform such a defendant of the amount of unliquidated damages the plaintiff claims.

An amendment to Rule 54(c) alters its language to comply with the Hermanson decision.  The amended Rule provides that, where damages sought in the compliant are in a sum certain, default damages may not exceed that amount.  Rule 5(a), concerning service, is also amended to require service of the 14 day notice on a defendant who is in default.

State, county and municipal governments are often sued by former employees who claim to have been fired without a hearing or other procedural safeguards.  Where the former employee has worked for long enough to attain civil servant or other tenured status, and hence a property interest in expected continued employment, such claims take on a constitutional dimension because the federal constitution prohibits the taking of life, liberty or property without due process of law.

Due process usually requires that a public employer provide such a civil servant a hearing prior to terminating his or her employment (Gilbert v. Homar, 520 U.S. 924, 929 (1997); Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985)), and the civil service laws require a pre-termination hearing.  See e.g. Massachusetts G.L. c. 35, § 51.  Therefore, if the public employer denies a civil servant the requisite pre-termination hearing, the civil servant may have a claim for damages under 42 U.S.C. §1983 (a “§1983 action”) based on a violation of his or her procedural due process constitutional rights.

However, a public employer accused of a procedural due process violation has an important defense in the so-called Parratt-Hudson Doctrine.  Under that rule, if a deprivation of property (e.g. the termination of a civil servant’s employment) “is occasioned by random and unauthorized conduct by state [or municipal] officials,” then no pre-deprivation hearing is required and due process is satisfied if “adequate post-deprivation remedies” are provided.  O’Neill v. Baker, 210 F.3d 41, 50 (1^st Cir. 2000), quoting Lowe v. Scott, 959 F.2d 323, 340 (1^st Cir. 1992).  (Emphasis added).  The United States Court of Appeals for the First Circuit applied the Parratt-Hudson Doctrine in Hadfield v. McDonough, 407 F.3d 11 (1^st Cir. 2005), cert. denied, 546 U.S. 961 (2005), in which the Sheriff of Plymouth County defeated claims that he had violated the first amendment rights of certain deputy sheriffs and an Assistant Deputy Superintendent (“ADS”) by terminating them on the basis of their political beliefs and had violated the due process rights of the ADS, who claimed to have tenured status, by failing to provide a pre-termination hearing.  Prior to trial, the lower court dismissed the claims of the ADS and he appealed only the due process issue after the jury at trial found for the Sheriff on all other counts.

Holding that there had been no procedural due process violation, the Hadfield court explained that the Parratt-Hudson Doctrine,

shields a public entity from a federal due process claim where the denial of process was caused by the random and unauthorized conduct of government officials and where the state has provided adequate post-deprivation remedies to correct the officials’ random and unauthorized acts.

407 F.3d at 19-20.  Stated another way:

Parratt and Hudson preclude §1983 claims for the “random and unauthorized” conduct of state officials because the state cannot “anticipate and control such conduct in advance.”…  In addition, … unauthorized deprivations of property by state employees do not constitute due process violations under the Fourteenth Amendment so long as meaningful post-deprivation remedies are available.

Brown v. Hot, Sexy and Safer Products, Inc., 68 F.3d 525, 535 (1st Cir. 1995).

While simple in its formulation, the Parratt-Hudson Doctrine raises numerous thorny problems in its application, among them the question what type of conduct by a public official is “random and unauthorized.”  For example, is a public official’s conduct “unauthorized” whenever it is in violation of an established, non-discretionary state procedure, or is something additional required.  Does conduct in violation of established procedures by a high ranking official (a policy maker) itself create new policy and render such conduct “authorized” by definition?  Another issue is what constitutes adequate post-deprivation remedy.  While not all federal circuits agree on every aspect of the Parratt-Hudson Doctrine, the First Circuit’s approach is relatively clear, and provides significant protection to state and municipal defendants.

General parameters of the Parratt-Hudson Doctrine.

The United States Supreme Court has recognized that while substantive due process violations occur at the time of the deprivation (because it is the deprivation itself which is unconstitutional), procedural due process violations are not complete at the time of the deprivation, but only when the state fails to provide due process (because it is the lack of appropriate process, not the deprivation, which is unconstitutional).  Zinermon v. Burch, 494 U.S. 113, 125-26 (1990).  The critical inquiry is what process the state provided and whether it was adequate.  Id.  There simply is no procedural due process violation if adequate state remedies are available.  The Parratt-Hudson Doctrine applies only to procedural, not substantive, due process violations.

In determining what process is due, a court must weigh several factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest….

Zinermon, 494 U.S. at 127, quoting Matthews v. Eldridge, 424U.S. 319, 335 (1976).

In Loudermill, the Court applied this balancing test to a claim that a school district violated its employees’ procedural due process rights when it terminated their employment without a prior hearing.  Although the terminated employees had a statutory right to appeal the termination, the statute made no provision for a pre-termination hearing.  Concluding that due process normally requires at least a minimal pre-deprivation hearing, the Supreme Court held that the terminated employees had stated a due process claim.

Like Loudermill, the Supreme Court’s decisions in Parratt v. Taylor, 451 U.S. 527 (1981), Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), Hudson v. Palmer, 468 U.S. 517 (1984), and Zinermon all apply the factors outlined in Matthews to determine what procedural protections are constitutionally required.  According to the Court in Zinermon, “Parratt is not an exception to the Matthews balancing test, but rather an application of that test to the unusual case in which one of the variables in the Matthews equation — the value of predeprivation safeguards — is negligible in preventing the kind of deprivation at issue.”  494U.S. at 128-29.

In Parratt, a state prisoner brought a §1983 action because prison employees had negligently lost materials he had ordered by mail.  While recognizing that a pre-deprivation hearing usually is required, the Court stressed the special situation in Parratt, noting that the loss was not due to “some established state procedure and the State cannot predict precisely when the loss will occur.  It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.”  451 U.S. at 541.  The Parratt Court pointed out that the deprivation in that case, “occurred as a result of the unauthorized failure of agents of the State to follow established state procedure.  There is no contention that the procedures themselves are inadequate nor is there any contention that it was practicable for the State to provide a predeprivation hearing.”  Id. at 543.

In Hudson, the Court extended the reasoning of Parratt to intentional deprivations of property, explaining that “[t]he state can no more anticipate the random and unauthorized intentional conduct of its employees than it can similar negligent conduct.”  468U.S. at 533.

In Logan, an employee filed a claim with the Illinois Fair Employment Practices Commission but the Commission, through inadvertence, failed to commence a fact finding conference within 120 days as required by statute and thereby lost jurisdiction to hear the case.  The employee claimed that the state’s established procedure, which divested the Commission of jurisdiction to hear the claim, violated his procedural due process rights.  The Supreme Court agreed, holding that Parratt did not apply because the employee was challenging not the random and unauthorized conduct of a state official but the established state procedure itself.

The Zinermon decision.

Zinermon is consistent with Parratt, Logan and Hudson, but involved circumstances that rendered the Parratt-Hudson Doctrine inapplicable.  In Zinermon, Burch had been admitted to a psychiatric institution as a “voluntary” patient but alleged that hospital staff had failed to obtain his informed consent and therefore, wrongfully had deprived him of his liberty.  The defendants claimed that the Parratt-Hudson Doctrine applied, but the Supreme Court disagreed.  While confirming that the Parratt-Hudson Doctrine can apply to deprivations of liberty as well as property, the Court stressed the distinction made in prior cases between losses caused by random and unauthorized conduct (to which Parratt-Hudson applied) and losses resulting from established state procedure (for which a § 1983 claim could be brought).  494U.S. at 130.

Applying that distinction, the Zinermon Court concluded that the loss suffered by Burch occurred because Florida’s statutes delegated broad power to hospital staff to admit psychiatric patients (depriving them of their liberty), but failed to circumscribe that power by requiring that a member of the staff determine whether the prospective voluntary admittee was mentally fit to give informed consent to a voluntary admission:

The Florida statutes, of course, do not allow incompetent persons to be admitted as “voluntary” patients.  But the statutes do not direct any member of the facility staff to determine whether a person is competent to give consent, nor to initiate the involuntary placement procedure for every incompetent patient….

Florida chose to delegate to petitioners a broad power to admit patients to FSH, i.e., to effect what, in the absence of informed consent, is a substantial deprivation of liberty….

***

Burch is not simply attempting to blame the State for misconduct by its employees.  He seeks to hold state officials accountable for their abuse of their broadly delegated, uncircumscribed power to effect the deprivation at issue.

Id. at 135.

The Court in Zinermon distinguished Parratt and Hudson in three ways.  First, due to the special nature of mental illness, it was foreseeable that under Florida’s statutory scheme, which did not require a procedure to determine the competency of a patient before voluntary admission, a patient seeking treatment for mental illness might not be competent and might be admitted despite a lack of informed consent.  Moreover, the state could predict precisely when that deprivation of liberty would occur.  In contrast, the Court noted that while the state in Parratt and Hudson might anticipate that on occasion a prison employee negligently or intentionally would lose or destroy an inmate’s property, the state could not predict when those deprivations would occur.  Id. at 136.

Second, the Court in Zinermon concluded that, unlike in Parratt and Hudson, pre-deprivation process was possible and would have been of value in avoiding the deprivation complained of.  The Court noted that Zinermon was not a case like Hudson in which the employee was “bent upon effecting the substantive deprivation and would have done so despite any and all predeprivation safeguards.”  Id. at 137.  Had the state in Zinermon established procedures for obtaining informed consent, there was no reason to believe that the staff would not have followed those rules.

Finally, in Zinermon, the Court said that the conduct of the hospital staff in that case was not “unauthorized” within the meaning of Parratt and Hudson, for two reasons.  First, the Court noted that the hospital staff had been delegated broad discretionary authority to commit the deprivation at issue while no such discretion had been delegated to the prison employees in Parratt or Hudson.  Second, “the Zinermon Court stressed that the defendants were dealing with persons ‘unable to protect their own interests.’”  San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465, 480 (2012), quoting Zinermon, 494U.S. at 138.

The First Circuit’s interpretation of “random and unauthorized.”

The Zinermon decision created confusion as to what type of conduct is “random and unauthorized” for purposes of Parratt-Hudson.  One view is that an official’s conduct is “unauthorized” whenever it violates an established non-discretionary state law procedure.  The contrary view is that even conduct in violation of such an established procedure can still be “authorized” if the official in question had the power to act as he or she did, but abused that power. Under the former view, for example, the act of a county sheriff in terminating civil servant deputies without the prior hearing required by law is unauthorized precisely because it violates the non-discretionary requirement that a prior hearing be conducted.  Under the latter view, however, such conduct would be authorized because a sheriff has the general power to terminate deputies, and simply abused that power by doing so without the required hearing.

These two approaches correspond to two views of §1983 liability generally, the legalist model and the governmental model. Bogart v. Chapell, 396 F.3d 548, 563-64 (4^th Cir. 2005) (Williams, J., dissenting).  The legalist model imposes liability on the state for an official’s constitutional violation only if the state (or municipality) has endorsed that violation.  Id.  Thus, conduct is “unauthorized”, the Parratt-Hudson Doctrine applies, and there is no state liability for a procedural due process violation, if the conduct at issue violates state law or established policy and there is an adequate post-deprivation remedy.  Language in Zinermon stressing the distinction between losses caused by random and unauthorized conduct and losses resulting from established state procedure supports the legalist interpretation.

The governmental model deems conduct to be authorized, imposes liability on the state, and renders Parratt-Hudson inapplicable, whenever the violation at issue was committed by an official in the scope of his or her employment, even if the conduct violates state law.  Id.  Courts adopting this view rely on the statement in Zinermon that the deprivation was “‘unauthorized’ only in the sense that it was not an act sanctioned by state law.” 494U.S. at 137-38.

The United States Court of Appeals for the First Circuit has consistently favored the legalist approach, narrowing §1983 liability by broadly applying the Parratt-Hudson Doctrine.  According to the Court in Hadfield,

Our cases establish that a government official has committed a random and unauthorized act when he or she misapplies state law to deny an individual the process due under a correct application of state law. … In other words, conduct is “random and unauthorized” within the meaning of Parratt– Hudson when the challenged state action is a flaw in the official’s conduct rather than a flaw in the state law itself.

407 F.3d at 20.  Similarly, in Chmielinski v. Comm. of Massachusetts, 513 F.3d 309, 315 (1^st Cir. 2008), the Court of Appeals explained that,

The Parratt-Hudson doctrine exists to protect states from needlessly defending the adequacy of state law process when the alleged due process violation results from a deviation from that process.

***

Neither the statute nor the regulations set out any procedural requirements, providing only that the hearing be “informal.” Thus, the hearing that Chmielinski received cannot be characterized as a deviation from the state law; it was not random and unauthorized.

(Emphasis added).  See also Bourne v. Town of Madison, 494 F.Supp.2d 80, 88-89 (D.N.H. 2007).

An additional issue left undecided by Zinermon is whether, if conduct consistent with established policies is “authorized,” conduct by a high ranking, policy making official must necessarily be deemed authorized because that very conduct effects a change in prior policy.  The Court of Appeals for the Second Circuit has adopted this rule (Dwyer v. Regan, 777 F.2d 825 (1985)), holding that conduct which otherwise could be considered random and unauthorized, including conduct in violation of established state law, is not random and unauthorized if the actor is a “high-ranking official having final authority over the decision-making process.”  Id. at 832.

However, the other circuits which have considered the issue have rejected the rejected the high ranking official exception to Parratt-Hudson.  The First Circuit has not considered the issue directly. Notably, however, while the plaintiffs in Hadfield raised the high ranking official exception, the Court, without discussion, held that Parratt-Hudson applied.

In San Geronimo, the Fist Circuit further explored the meaning of “random and unauthorized,” distinguishing the case before it from Zinermon and applying the Parratt-Hudson Doctrine to bar the plaintiff developer’s procedural due process claim.  The developer claimed that the Puerto Rico Regulations and Permits Administration (“ARPE”) had violated its procedural due process rights by mistakenly invoking emergency powers to stay its construction project (a deprivation of property), without a pre-deprivation hearing.  The Court affirmed the dismissal of the due process claim, finding that the ARPE’s conduct was random and unauthorized.

First, the San Geronimo Court held that, in contrast to Zinermon, the ARPE had not been delegated broad and uncircumscribed discretion.  While the flaw in the statute in Zinermon was that it allowed the a mental patient to be voluntarily admitted without requiring a finding that the patient was competent to give informed consent, the emergency statute in San Geronimo expressly required the ARPE to make and support a finding that an emergency, rising to the level of an “imminent danger,” existed.  687 F.3d at 481.  The Court noted that “Zinermon is best viewed as a case where the state statutory scheme conferred so much discretion on state officials so as to authorize the state officials’ actions in deprivation of procedural rights.”  San Geronimo, 687 F.2d at 486.  The statute in San Geronimo did not grant discretion to violate the plaintiff’s due process rights.  Rather, the violation resulted from the ARPE’ mistaken application of the law.  Id.

The San Geronimo Court also rejected the plaintiff’s claim that, like Zinermon, the deprivation of due process was foreseeable.  The Court noted that in Zinermon, “it was perfectly obvious that some individuals seeking non-emergency admission at a mental health facility would not be competent to give consent to admission,” and that a deprivation was predictable because the “statute did not require a threshold determination of competency.”  687 F.3d at 487.  In contrast, there was no such “clear risk” that ARPE would mistakenly misapply the emergency stay statute.

Third, the San Geronimo Court held that, unlike in Zinermon, no additional pre-deprivation safeguards were possible.  In Zinermon “there existed a straightforward cure for the statutory failing: the state could have easily imposed a requirement that a threshold determination of competency take place.”  687 F.3d at 487-88.  In San Geronimo, however, requiring a pre-deprivation hearing would have defeated the entire purpose of the emergency stay statute, to allow for swift action to protect the public.   Id. at 488.

What constitutes an adequate post-deprivation remedy?

For the Parratt-Hudson Doctrine to apply, an adequate state law post-deprivation remedy must have been available to the plaintiff at the time of the deprivation.  However, establishing the existence of a post-deprivation remedy is not difficult.  Citing Parratt, the Court of Appeals for the First Circuit has noted that such a remedy may be statutory or provided by common law, as in the case of a tort action.  Lowe, 959 F.2d at 341.  In addition, the availability of administrative and judicial review of decisions made by state officials constitutes adequate post-deprivation process.  Hadfield, 407 F.3d at 21, citing Herwins v. City of Revere, 163 F.3d 15, 19 (1st Cir.1998).  Notably, a state post-deprivation remedy may be adequate even where it fails to provide all of the relief which would have been available through a §1983 action.  Parratt, 451U.S. at 544.

In Hadfield, the Court of Appeals held that Massachusetts provided adequate post-deprivation remedies to the deputy sheriffs who had been terminated without prior hearing because G.L. c. 35, §51, allowed the deputies to appeal their terminations to the civil service commission and, if successful, to obtain reinstatement and back pay.

While a plaintiff may assert that a state provided remedy is inadequate because it would require the plaintiff to endure long delays associated with litigation, a court is likely to reject such an argument in all but the most extreme circumstances.  Although the United States Supreme Court has recognized that “at some point, a delay in the post-termination hearing would become a constitutional violation,” Loudermill, 470 U.S. at 547, the slow pace of normal litigation is not the kind of delay which renders a post-deprivation remedy inadequate.  In fact, the Loudermill Court held that a nine month delay in providing a hearing did not work a denial of due process, while other federal courts have held that delays of two years did not violate due process. Mathews v. Eldridge, 424 U.S. 319, 342, (1976) (eleven month delay); Isaacs v. Bowen, 865 F.2d 468, 477 (2d Cir. 1989) (19 months); Ritter v. Cohen, 797 F.2d 119, 124 (3d Cir. 1986) (20 months); Givens v. United States Railroad Retirement Bd., 720 F.2d 196, 201 (D.C. Cir. 1983) (19 months); Frock v. United States Railroad Retirement Bd., 685 F.2d 1041, 1047 (7th Cir. 1982) (two years).  In Easter House v. Felder, 910 F.2d 1387 (1990), the Court of Appeals for the Seventh Circuit, noting that “almost all litigation, whether conducted in a state or federal forum, may be characterized as a lengthy and speculative process,” stated:

[W]e should not reject the application of Parratt unless the remedy which an injured party may pursue in state court can readily be characterized as inadequate to the point that it is meaningless or nonexistent and, thus, in no way can be said to provide the due process relief guaranteed by the fourteenth amendment.

Id. at 1406.

A powerful weapon for government defendants.

The Parratt-Hudson Doctrine, especially as broadly applied in the First Circuit, affords state and municipal defendants substantial protection from §1983 lawsuits based on alleged violations of procedural due process.   While still subject to suit where the deprivation of due process was consistent with established policy, or where the state delegated to officials broad and uncircumscribed discretion to effect the deprivation complained of, Parratt-Hudson shields government employers from liability based on a public official’s unforeseeable violation of facially valid procedures.

This article is an updated version of an article co-authored by Kevin F.  Moloney and Roger T. Manwaring which appeared in the Massachusetts Academy of Trial Attorneys Journal in October 2008.  Mr. Moloney and Mr. Manwaring successfully defended the Sheriff of Plymouth County before the First Circuit in the Hadfield case and successfully opposed a petition for writ of certiorari in the United States Supreme Court.

After sitting in a hospital emergency room (“ER”) for more than four hours, waiting to see a doctor, Fred dies of a heart attack.  No one can explain how ER personnel had failed to immediately admit Fred, a seriously overweight 55 year-old who had come to the ER complaining of headache, nausea, dizziness and chest pains.  Although it promptly took Fred’s medical insurance information, the hospital failed to follow its own procedures for screening patients who came to the ER with symptoms indicating potential heart attacks.

Fred’s survivors consider a malpractice action against the hospital, and the doctors and nurses involved.  They also consider a claim under the federal Emergency Medical Treatment and Active Labor Act, 42 U.S.C. 1395dd (“EMTALA”).

However, the hospital claims that EMTALA is available only to indigent persons and not those capable of paying for treatment, through insurance or otherwise.  As explained below, the hospital’s defense is unfounded.  Although one purpose of EMTALA is to prevent hospitals from refusing to treat patients who lack insurance or other means to pay, EMTALA has a much broader reach.

 EMTALA  Overview.

EMTALA applies to almost all hospitals and governs a hospital’s obligations to patients who go to the ER or who are in or near the hospital and either ask for emergency treatment or are obviously in need of such treatment.  The statute requires hospitals: (1) to provide an appropriate medical screening to persons who come to the ER seeking medical assistance and (2) if an emergency medical condition exists, to render the services that are necessary to stabilize the patient’s condition.  Cruz-Queipo v. Hospital Espanol Auxilio Mutuo de Puerto Rico, 417 F.3d 67, 70 (1^st Cir. 2005), quoting Correa v. Hosp. San Francisco, 69 F.3d 1184, 1190 (1st Cir.1995).  (Emphasis added).  In addition, EMTALA restricts a hospital’s ability to transfer a patient suffering from an emergency medical condition to another hospital before stabilizing the patient’s condition.

“The essence of [the screening] requirement is that there be some screening procedure, and that it be administered even-handedly…. When a hospital prescribes internal procedures for a screening examination, those internal procedures set the parameters for an appropriate screening…. A hospital thus must adhere to its own procedures in administering the screening examination.”  Cruz-Queipo, 417 F.3d at 70, quoting Correa, 69 F.3d at 1190.

Notably, EMTALA does not provide a cause of action for medical malpractice.  Correa, 69 F.3d at 1192.  See also Ramos-Cruz v. Centro Medico del Turabo, 642 F.3d 17, 18 (1st Cir. 2011); Del Carmen Guadalupe v. Negron Agosto, 299 F.3d 15, 21 (1^st Cir. 2002); Rosado-Gonzalez v. Alejandro Otero Lopez Hosp., 836 F. Supp. 2d 48, 56 (D.P.R. 2011).  The mere fact that a patient receives substandard care or that ER personnel perform the required screening negligently does not, by itself, violate EMTALA.  “[A] refusal to follow regular screening procedures in a particular instance contravenes the statute, … but faulty screening, in a particular case, as opposed to disparate screening or refusing to screen at all, does not contravene the statute.”  Correa, 69 F.3d at 1192-93.

A patient can sue a hospital for damages arising from an EMTALA violation.  42 U.S.C. §1395dd(d)(2)(A).

Does EMTALA apply only to indigent patients?

Some defendants argue that EMTALA protects only patients who are indigent, and not those capable of paying for their own care, through insurance or otherwise.  That is not correct.

It is well established that both EMTALA’s screening requirement and its stabilization requirement apply without regard to a patient’s ability to pay or the hospital’s motivation.  In Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 252-53, 119 S.Ct. 685, 686-87 (1999), the United States Supreme Court held that EMTALA §1395dd(b), requiring that a hospital stabilize the patient before discharge, applies regardless of the hospital’s motivation.  Nor is the screening requirement applicable only to the indigent or uninsured.  In Correa, the Court of Appeals for the First Circuit stated:

[The hospital] maintains that depriving a patient of an appropriate screening, in and of itself, will not support an EMTALA claim. It suggests that a hospital can be liable for transgressing the statute only if economic concerns, such as the suspicion that the patient will be unable adequately to pay her way, drive the hospital’s actions. Since Ms. Gonzalez had insurance that permitted her hospital visit if an emergency existed, its thesis continues, its handling of her case could not have been motivated by concerns about her ability to pay….

Every court of appeals that has considered this issue has concluded that a desire to shirk the burden of uncompensated care is not a necessary element of a cause of action under EMTALA. … We think that these cases are correctly decided, and that EMTALA does not impose a motive requirement…. We hold, therefore, that EMTALA, by its terms, covers all patients who come to a hospital’s emergency department, and requires that they be appropriately screened, regardless of insurance status or ability to pay. See 42 U.S.C. § 1395dd(a).

69 F.3d at 1193-94.  (Emphasis added).  Monrouzeau v. Asociacion Del Maestro, 354 F.Supp.2d 115, 118 (D.P.R. 2005); Torres Otero v. Hospital General Menonita, 115 F.Supp.2d 253, 257 (D.P.R. 2000); Fuentes Ortiz v. Mennonite General Hospital, 106 F.Supp.2d 327, 332 (D.P.R. 2000).

By failing to screen Fred as required by its own procedures, the hospital may have violated EMTALA.  Fred’s family is not barred from bringing an EMTALA claim merely because Fred was not indigent.  Any patient who has been injured by a hospital’s breach of its EMTALA obligations should consider bringing an EMTALA claim.

As she looked at the exposed brick, high ceilings and massive windows of her new loft apartment, Jen could hardly believe her good fortune.  Located on the second floor of a converted mill building, the loft was in a trendy neighborhood populated by artists (and those who thought they were artists).  Her first floor neighbor was a small Italian bistro that shut down by 10:00 p.m. each night.  The situation seemed ideal and for a while it was.

Some months later, everything changes.  First, a mechanical problem interrupts the heat to her apartment.  Jen notifies the landlord who immediately takes steps to fix the problem.  Nevertheless, the heat remains off for two cold January days.

Next, the bistro closes and is replaced by a new tenant: a bar offering live music every night until 2:00 a.m.  While Jen likes music, she prefers not to listen to it through her floor in the wee hours of the morning.  Nor does she find interesting the drunken arguments which routinely take place on the sidewalk directly below her windows.

After a week of sleepless nights, Jen complains to her landlord.  However, the landlord claims to have no control over the bar or responsibility for the noise.  The landlord also points out that, in her lease, Jen expressly waives any claim against the landlord for failure to supply utilities or for interference with her use of the premises.

Jen wants the noise to stop, but does not want to move out and lose her dream apartment.  She considers suing the landlord both for the interruption in heat and the excessive noise.  Does she have any recourse?

Although the landlord most likely is not liable for the temporary lack of heat, Jen is probably entitled to damages for the landlord’s interference with her enjoyment of the loft due to the noise created by the bar.  She will also be entitled to an injunction prohibiting the landlord and the bar from continuing to interfere with her use of the apartment.

A.     Statutory protection.

Massachusetts G.L. c. 186, §14, states, in relevant part:

Any lessor or landlord of any building … 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 … to any occupant …, who willfully or intentionally fails to furnish such water, hot water, heat … at any time when the same is necessary to the proper or customary use of such building …, 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 … or by imprisonment…. 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….

 B.     The lease provision waiving the statute’s protections is unenforceable.

Even if Jen agreed in her lease not to hold the landlord responsible for failure to supply utilities or for interference with her use of the premises, those provisions are unenforceable.  Section 14 provides:

Any waiver of this provision in any lease or other rental agreement, except … for interruptions of any specified service during the time required to perform necessary repairs to apparatus necessary for the delivery of said service or interruptions resulting from natural causes beyond the control of the lessor or landlord, shall be void and unenforceable.

Thus, Jen has not waived her claims against the landlord.

C.     The failure to provide heat.

By its terms, §14 imposes liability for failure to deliver heat only when the landlord’s conduct is willful or intentional.  “A landlord may be found to have acted willfully and/or knowingly if he fails, after notice to supply the essential service or rectify the problem with same.”[1]  In Flynn, there was a water pressure problem.  Although the tenant was deprived of adequate water service for an extended period (four weeks), the Court held that the landlord was not liable under §14 because he had made prompt and reasonable efforts to solve the problem. The Court stated:

Shortly after moving in, plaintiff began to have problems with the water pressure. He had water sporadically throughout the day for about twenty minute intervals. The rest of the time there was no water. Plaintiff notified the defendant of this problem and immediately the defendant notified a well digger who came to assess the problem. Defendant hired a well digger and dug a trench himself to help facilitate the installation of the new well. It took about three to four weeks for the new well to be completed and hooked up to the house. Plaintiff was without adequate water for about four weeks. Defendant, upon notification by the plaintiff, took reasonable steps to have the water problem corrected, and it was, in fact, corrected.

***

… Finding that the defendant’s temporary failure to supply adequate water was neither willful or intentional, the Trial Judge entered judgment for the defendant. We affirm.

Id.  (Emphasis added).  In Jen’s case, the landlord’s conduct was not willful or intentional.  The landlord took immediate steps to fix the lack of heat, and the problem was, in fact, remedied within two days.  Therefore, the landlord is not liable for the lack of heat.

D.     The Noise.

Jen will likely prevail on her claim that the excessive noise from the bar interfered with her quiet enjoyment of her apartment and constituted a constructive eviction.  Constructive eviction results from a breach of the landlord’s covenant to protect the tenant’s right to quiet enjoyment of the premises during the term of the lease.  “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy–acts or omissions which impair the character and value of the leased premises.”[2]  While a breach of the covenant often arises from a landlord’s failure to provide services (heat, etc.), a breach can also result where the landlord undertakes repairs or alterations which interfere with the tenant’s use of the premises.[3]

Whether there is a breach of the covenant of quiet enjoyment depends, of course, on proof of the extent to which the landlord’s acts or omissions have actually interfered with the tenant’s reasonable use of the premises.  The interference must be “serious” and must “substantially impair” the value of the premises.[4]  A breach of the covenant of quiet enjoyment is sufficiently serious if it impairs the value of the leased premises.[5]

In order to establish a breach of the covenant of quiet enjoyment, the tenant must show some fault on the part of the landlord, amounting to at least negligence or unreasonable conduct.[6]  Thus, the tenant must prove that the landlord knew or had reason to know of the defective condition of the premises and unreasonably acted or failed to act despite such knowledge.  In Al-Ziab, the Court said:

[T]o obtain relief under §14 for a claim of lead paint poisoning it must be demonstrated that the landlord had notice of or reason to know of the presence of lead and failed to take appropriate corrective measures.[7]

It follows that, while there is no good faith defense to a quiet enjoyment claim[8], a landlord who acts to remedy a condition which interferes with quiet enjoyment immediately after receiving notice of the condition does not breach the covenant.[9]

Two issues raised by the facts of Jen’s case are whether she must have vacated the apartment to claim a constructive eviction and whether the landlord can be held liable for interference caused not by the landlord directly, but by another of the landlord’s tenants.  Although earlier cases required a tenant to actually abandon the premises in order to claim a constructive eviction, more recent case law makes clear that the tenant can remain on the premises and seek equitable relief and damages, for a breach of the covenant of quiet enjoyment/constructive eviction.[10]

Further, a landlord is responsible for the conduct of one tenant which interferes with another tenant’s use of his premises, if the landlord has the right to control the conduct of the interfering tenant.[11]

Jen should prevail because she can prove that the excessive noise is seriously interfering with her use of the apartment and, therefore, adversely affecting the value of the premises.  The landlord is responsible for the noise because the bar is a tenant and the landlord has some control over its conduct.  In Blackett, 371 Mass. 714, 358 N.E.2d at 819-20, the Supreme Judicial Court held a landlord liable for breach of covenant of quiet enjoyment where landlord rented first floor of residential apartment building to lounge, and lounge’s loud music interfered with other tenants’ residential uses.  The Court noted that landlord could control the lounge tenant and that the interference was the natural and probable result of the landlord renting to the lounge.

E.     Jen’s remedy.

Jen wants to stay in her apartment but to stop the noise.  If she establishes a constructive eviction, the Court should enter an injunction prohibiting the bar and the landlord from interfering with her quiet enjoyment of her apartment.

In addition, she will be entitled to recover damages for the interference which has already occurred.  Where a breach of the covenant of quiet enjoyment is established, the tenant is entitled to damages for all harm suffered as a result of that breach.  The Court in Simon v. Solomon, 385 Mass. 91 (1982), holding that emotional distress damages were available in an action for breach of the covenant of quiet enjoyment, stated:

Section 14 provides that tenants may recover “actual and consequential” damages from landlords who have interfered with their quiet enjoyment of leased premises…. The combination in §14 of both actual and consequential damages, therefore, suggests that the Legislature intended to include all reasonably foreseeable losses-personal as well as economic – within the scope of statutory recovery.

Section 10.2 of the Restatement (Second) of Property (Landlord-Tenant) also makes clear that damages for interference with quiet enjoyment cover all losses which are natural and probable consequences of the landlord’s conduct, including lost use of improvements previously paid for by the tenant, any cost to the tenant of eliminating the landlord’s default, and interest.

In Darmetko v. Boston Housing Authority, 378 Mass. 758 (1979), the Massachusetts Supreme Judicial Court discussed the measure of damages for breach of the covenant of quiet enjoyment where the tenant remains in possession:

Damages for breach of the covenant of quiet enjoyment where the tenant remains in possession of the premises are measured by the difference between the value of what the lessee should have received and the value of what he did receive.[12]

In determining the value of the premises in its defective condition, a court will consider “various factors including, but not limited to, the nature, duration and seriousness of defects and whether they may endanger or impair the health safety or well being of the occupants.”[13]  A court will take into account “the conduct of both parties” in setting damages.[14]

Finally, a violation of c. 186, §14, is a consumer protection violation under c.93A, potentially subjecting the landlord to double or treble damages.

Section 14 provides tenants like Jen with a potent weapon.  Its provisions relating to provision of utilities and, more generally, to quiet enjoyment, safeguard the tenant’s reasonable expectations, ensuring that the tenant has the opportunity to use the premises without undue interference by the landlord or other tenants.