In this appeal, a landlord challenges a judgment entered after trial to a jury in the Housing Court Department of the Trial Court, awarding damages and attorneys' fees to a tenant for injuries caused by unsanitary conditions in her apartment.
Gem Realty Company (Gem)
Solomon's counterclaims are based primarily on her allegations of flooding in her apartment. She testified at trial that water and sewage, flowing from an adjoining basement area, flooded her apartment approximately thirty times during her tenancy. Solomon could not recall the date of any of the floods, but was able to name the months in which floods had occurred. She testified that each flood had occurred between twelve and two o'clock in the morning; she described stepping from bed into ankle deep water and slime. Each time this happened, Solomon would spend the night in her kitchen, drinking coffee, and waiting for the morning to call Gem. According to Solomon, a Gem cleanup crew would arrive several hours after her call to pump the water from her apartment. Solomon's testimony concerning the flooding was corroborated by photographs showing water damage, and by witnesses who had seen water or evidence of water in Solomon's apartment.
Solomon did not suffer bodily injury as a result of the flooding. She testified, however, that the floods caused her great emotional anguish. The recurrent water and sewage left her "withdrawn," "depressed," and "ashamed," unable to work or to care for her children. She began to spend much
Gem admits that water entered Solomon's apartment on several occasions, but denies that thirty "floods" occurred. At trial, Gem's employees described in detail Gem's maintenance procedures and its answering service for tenants' complaints, and testified that they had no memory or record of repeated reports of flooding in Solomon's apartment. Gem also gave evidence concerning the structure of Solomon's building and the possible cause of flooding, and argued that third persons were responsible for any floods that occurred.
The judge granted summary judgment for Gem on Solomon's count for negligent maintenance, reasoning that a claim of negligence could not support recovery for purely emotional harm unaccompanied by physical injuries. The judge submitted the remaining three counts to the jury.
We affirm the judgments entered for Solomon on her claims for breach of the warranty of habitability, reckless infliction of emotional distress, and attorneys' fees. We also affirm the judgment entered for Gem on Solomon's claim of negligence. We vacate the $10,000 award for interference with quiet enjoyment.
1. Reckless infliction of emotional distress. Our decisions in recent years have firmly established that a plaintiff may recover for emotional distress inflicted recklessly or intentionally. Agis v. Howard Johnson Co., 371 Mass. 140 (1976). George v. Jordan Marsh Co., 359 Mass. 244 (1971). See Restatement (Second) of Torts § 46 (1965). In Agis, we listed four elements necessary to a recovery on this theory. The plaintiff must show "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; ... (2) that the conduct was `extreme and outrageous' ...; (3) that the actions of the defendant were the cause of the plaintiff's distress; ... and (4) that the emotional distress sustained by the plaintiff was `severe'...." Agis, supra at 144-145. If each of these elements is proven, the plaintiff can recover for purely emotional suffering unaccompanied by physical injury. Id.
Gem does not seriously challenge the finding of the jury that Solomon suffered severe emotional distress as a result of the floods in her apartment. Instead, Gem stresses that Solomon did not identify a specific "defect" in the apartment building that Gem, as landlord, should have repaired. On this basis Gem argues that it did not act recklessly, did not engage in outrageous conduct, and did not cause Solomon's floods.
The central thrust of Gem's contentions appears to be that its conduct was not the proximate cause of Solomon's injuries — that it was not legally responsible for her misfortune. As Gem points out, the source of the floods was not clear. The water appears to have entered Solomon's apartment
Gem's legal responsibility, however, depends on the duties it owed to Solomon, and Gem's arguments concerning plumbing misstate the scope of a landlord's duty to its tenants. We have held that every landlord that rents residential property warrants to its tenants that the premises will be delivered and maintained in a habitable condition. Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973). At a minimum, this warranty imposes on the landlord a duty to keep the dwelling in conformity with the State Sanitary Code. Id. at 200 n. 16. Crowell v. McCaffrey, 377 Mass. 443, 451 (1979). See also Hemingway, supra at 215-219 (Quirico, J., concurring in part and dissenting in part). A landlord's breach of this duty abates the tenant's obligation to pay rent, even when the landlord is not at fault and has no reasonable opportunity to make repairs. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). Further, a landlord that fails to maintain a habitable dwelling for its tenant is liable for resulting personal injuries, at least when the landlord has failed to exercise reasonable care in maintenance. Crowell, supra at 450-451.
There was evidence at trial that the wall between Solomon's apartment and the adjoining basement area was extremely porous. There was also testimony suggesting that Gem may have considered cementing the wall to prevent floods, but never carried out this plan. The jury could reasonably conclude that Gem's failure to do so caused Solomon's
Having recognized that an inference was warranted that Gem failed in its duty to prevent the flooding, we find ample evidence in the record from which the jury could conclude that the remaining elements of an action for reckless infliction of emotional distress — recklessness, outrageous conduct, and severe emotional distress
2. Negligence and strict liability. Solomon has appealed the summary judgment against her on her count for negligent maintenance. As the trial judge noted in his order, we have not recognized a cause of action for negligently inflicted emotional distress unaccompanied by physical injury. Dziokonski v. Babineau, 375 Mass. 555, 560 n. 6, 561 n. 7 (1978). McDonough v. Whalen, 365 Mass. 506, 517-518 (1974). Cf. Spade v. Lynn & Boston R.R., 168 Mass. 285, 290 (1897) (limited on other grounds, Dziokonski, supra at 561). See Ferriter v. Daniel O'Connell's Sons, 381 Mass. 507, 517-518 (1980). Solomon asks us to abandon the requirement of physical injury in actions brought by direct victims of negligence. See Molien v. Kaiser Foundation Hosps., 27 Cal.3d 916, 925-932 (1980); Rodrigues v. State, 52 Haw. 156, 169-174 (1970). She also suggests that in the landlord-tenant context, proof of negligence should not be necessary. She argues that the warranty of habitability imposes strict liability on landlords for injuries to tenants caused by unsanitary apartment conditions, including emotional injuries. See Berman & Sons v. Jefferson, 379 Mass. 196, 200-203 & n. 9 (1979); Crowell v. McCaffrey, 377 Mass. 443, 450-451 (1979). Compare Kaplan v. Coulston, 85 Misc.2d 745 (N.Y. Civ. Ct. 1976), with Segal v. Justice Court Mut. Hous. Coop., 105 Misc.2d 453 (N.Y. Civ. Ct. 1980). Cf. Back v. Wickes Corp., 375 Mass. 633 (1978).
We need not decide whether a tenant could recover for purely emotional harm on a theory of negligence or strict liability, or whether the Legislature intended to authorize such recovery as "consequential" damages under G.L.c. 186, § 14. We have affirmed Solomon's sizeable recovery for reckless infliction of emotional distress, and she has not demonstrated that she would be entitled to additional compensation if permitted to recover under a lesser standard
3. Liability under G.L.c. 186, § 14. The judge's award of attorneys' fees, and parts of his instructions on damages, were based on G.L.c. 186, § 14, which imposes civil and criminal liability on a landlord that "willfully or intentionally" fails to provide essential services that it is obligated to furnish, or "directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant."
First, Gem argues that § 14 does not create an independent civil action — that it cannot be the basis of a civil recovery until the landlord has been convicted under its criminal provisions. We reject Gem's interpretation. The statute states that one who "commits" any of the proscribed acts is civilly liable; it does not require "conviction." Moreover, a requirement of prior criminal conviction would defeat the efficiency of the civil remedy as a means by which tenants can enforce the statute and obtain compensation. This is particularly true in the context of summary eviction proceedings. By the express terms of the statute a tenant may apply its claims under § 14 against a claim for rent by the landlord. If a prior criminal conviction were required, however, tenants would rarely be able to raise such counterclaims in summary eviction proceedings based on nonpayment of rent. A statute should not be read in a manner that defeats its intended utility. See, e.g., Commonwealth v. Lamb, 365 Mass. 265, 269 (1974); Hein-Werner Corp. v. Jackson Indus., Inc., 364 Mass. 523, 527 (1974). We conclude, therefore, that a tenant may bring an action for civil damages under G.L.c. 186, § 14, without first pursuing criminal charges.
Second, Gem contends that § 14 prohibits only intentional conduct by a landlord. As we noted earlier, the jury did not find that Gem intended to harm Solomon. It did find, however, that Gem acted recklessly. With this finding in mind, we consider the purposes, language, and context of § 14.
Section 14 belongs to a body of statutes establishing tenants' remedies against landlords who fail to provide safe and sanitary housing. See, e.g., G.L.c. 111, §§ 127A-127L, c. 186, §§ 14, 15E, 15F, 18, 19; c. 239, § 8A. These statutes
Of course, general statutory objectives do not necessarily justify the broadest reading possible. See Morissette v. United States, 342 U.S. 246, 259 (1952). The Legislature may have contemplated a balance between tenant protection and the legitimate interests of landlords, and therefore may have intended that some degree of fault or foreseeability should be a prerequisite to liability under § 14.
When § 14 was first enacted, both categories of prohibited conduct — failure to provide services and interference with quiet enjoyment — were modified by the words "willfully or intentionally." St. 1927, c. 339, § 1. In 1973, the statute was rewritten. St. 1973, c. 778, § 2. The requirement of intentional conduct was retained for failure to provide essential services, but deleted from the quiet enjoyment clause; landlords were now liable for "directly or indirectly" interfering with tenants' quiet enjoyment of leased premises. One natural inference from this amendment is that the Legislature
The common law background of § 14 also suggests that malicious intent is not a condition of liability. The phrase "quiet enjoyment" is a familiar term in landlord-tenant law, signifying the tenant's right to freedom from serious interferences with his tenancy — acts or omissions that "impair the character and value of the leased premises." Winchester v. O'Brien, 266 Mass. 33, 36 (1929) (quoting from Brande v. Grace, 154 Mass. 210, 212 ). See Blackett v. Olanoff, 371 Mass. 714 (1977). Every tenancy is deemed to entail an implied covenant that the landlord will not disturb this right during the tenancy. Id. Although early cases applying the covenant of quiet enjoyment required intent on the part of the landlord, e.g., Katz v. Duffy, 261 Mass. 149 (1927), more recent decisions have imposed liability whenever the "natural and probable consequence" of a landlord's action was interruption of the tenant's rights. Westland Hous. Corp. v. Scott, 312 Mass. 375, 381-383 (1942). Shindler v. Milden, 282 Mass. 32, 33 (1933). See also Blackett v. Olanoff, 371 Mass. 714, 716 (1977).
Gem argues that because criminal penalties are possible under § 14, we should read a requirement of intent into the statute despite the contrary suggestions of its language and background. We disagree. Although we have often stated that penal statutes should be strictly construed, Commonwealth v. Clinton, 374 Mass. 719, 721 (1978), this maxim is a guide for resolving ambiguity, rather than a rigid requirement
As its third objection to Solomon's recovery on her count for interference with quiet enjoyment, Gem asserts that it was wrongly held responsible for the actions of third parties beyond its control. Pointing to its plumber's testimony that waste backups were caused by tenants' using unauthorized washing machines or introducing objects into the waste stacks, and to its unsuccessful attempts to evict tenants for using washing machines in their apartments, Gem argues that it was unable to control the source of the flooding. Cf. Blackett v. Olanoff, 371 Mass. 714 (1977). This contention echoes Gem's objections to the verdict for reckless infliction of emotional distress, and we reject it for the same reasons. The water in Solomon's apartment was a preventable situation, and one that Gem had a duty to prevent. See 105 Code Mass. Regs. 410.500; Crowell v. McCaffrey, 377 Mass. 443 (1979); Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973). The jury found in answer to a special question (see note 2, supra), that the water interfered with Solomon's quiet enjoyment of her apartment. Therefore, Gem is liable under G.L.c. 186, § 14.
4. Evidentiary rulings. Gem challenges the admission of two items of evidence. First, Gem asserts that the judge improperly allowed an expert witness to give an opinion on Solomon's truthfulness. The witness in question was a psychiatrist who testified, on the basis of an interview with Solomon, that she had suffered serious emotional disturbance as a result of the conditions in her apartment. The judge refused to allow this witness to state directly his opinion on Solomon's truthfulness during the psychiatric interview, but did permit the witness to testify that he ordinarily assessed patients' truthfulness. The judge also permitted Solomon's counsel to ask the witness what factors he had relied on in reaching his conclusion that the floods in Solomon's apartment were the cause of her distress. Immediately after this question, the judge instructed the jury that they alone were responsible for determining the truth of the parties' allegations, and that they should consider the witness's comments on truthfulness only as evidence of the process by which he had formed his opinion and the facts on which he had relied.
The role of an expert witness is to help the jury understand issues of fact beyond their common experience. Under modern standards, expert testimony on matters within the witness's field of expertise is admissible whenever it will aid the jury in reaching a decision, even if the expert's opinion touches on the ultimate issues that the jury must decide. Commonwealth v. LaCorte, 373 Mass. 700, 705 (1977). Commonwealth v. Montmeny, 360 Mass. 526, 527-528 (1971). See Fed. R. Evid. 704, and Proposed Mass. R. Evid. 704 (July, 1980), which state the rule in very broad terms. An expert may not, however, offer his opinion on issues that the jury are equally competent to assess, such as credibility of witnesses. Commonwealth v. Gardner, 350 Mass. 664, 665-667 (1966). See Commonwealth v. Montmeny, supra at 528-529. On such questions, the influence of an expert's opinion may threaten the independence of the jury's decision. Commonwealth v. Gardner, supra at 667. See McCormick, Evidence § 12, at 27 (2d ed. 1972).
Nevertheless, the psychiatric witness's testimony was admissible as an explanation of the basis of his opinion. An expert witness may state the grounds on which the has relied in forming his opinion, as part of the foundation for his testimony. Commonwealth v. Massachusetts Turnpike Auth., 352 Mass. 143, 151 (1967). Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Auth., 335 Mass. 189, 199 (1956). Cronin v. Fitchburg & Leominster St. Ry., 181 Mass. 202, 203-204 (1902). Such an explanation may be of great use to the jury in determining what weight to accord the expert's testimony. In the present case, for example, the jury might have discredited the witness's testimony if they had concluded from their own observations that Solomon was not sincere. An expert's testimony explaining the foundation for his opinion should not, of course, serve as a channel for the introduction of unnecessary and prejudicial evidence. See Hunt v. Boston, 152 Mass. 168, 171 (1890). In the present
Gem's second argument respecting evidence is that the judge should not have admitted two tenant complaint slips taken from Gem's telephone records. The slips were dated January 26, 1978 — several months after Solomon had moved out of her apartment. They showed that the new tenant had called Gem to complain that the ceilings were leaking and the "bedroom, living room and hall" were "flooded." The judge admitted these complaint slips for the limited purpose of showing that Gem's maintenance supervisor had notice of a "flood," and thereby impeaching his testimony on cross-examination that the only subsequent tenant complaint had involved "seepage through the bedroom window."
5. Damages. Gem objects to the judge's extensive instructions on damages, arguing that the judge misstated the damages authorized by G.L.c. 186, § 14, and incorrectly permitted the jury to assess redundant damages. Gem did not press these objections after the charge was delivered and before the jury retired, and therefore cannot claim appellate relief on the basis of defects in the instructions. Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). In this circumstance, we would not disturb the verdicts if, by any line of reasoning, the jury might have made a correct assessment of damages. Cf. Donahue v. Dal, Inc., 314 Mass. 460, 462 (1943). However, Gem did file seasonable motions for directed
We observe at the outset that much of the confusion that has arisen on the question of damages is attributable to the form in which the case was submitted to the jury. The jury were asked to return separate verdicts on the three counts of Solomon's claim, and responded by awarding $1,000 for breach of warranty, $10,000 for interference with quiet enjoyment, and $35,000 for infliction of emotional distress. Despite their tripartite form, however, these verdicts represent an assessment of the monetary consequences of a single problem — the flooding in Solomon's apartment.
In his instructions to the jury, the judge outlined the damages available under each of the three theories of recovery advanced by Solomon. For interference with quiet enjoyment, he instructed the jury to award the statutory measure
In light of these instructions, the verdict for interference with quiet enjoyment, if based on Solomon's actual damages, necessarily duplicated both the lost rental value awarded for breach of warranty, and the items of damage awarded for infliction of emotional distress.
Solomon suggests that the jury might have arrived at the $10,000 verdict for interference with quiet enjoyment by
The limitation does not, Solomon suggests, immunize a once recalcitrant landlord from liability for future violations. If new violations arise after the initial suit is filed, the tenant may recover triple rent in a new proceeding. Further, if the landlord persists in or repeats the original violation after a final judgment in the tenant's favor, the tenant may repeat his suit and recover a second time.
In sum, taking into account the relationships among the three counts of Solomon's claim, and the instructions that accompanied their submission to the jury, we find no acceptable basis for the verdict awarding $10,000 to Solomon for interference with quiet enjoyment. The jury could only have reached this verdict by duplicating items of damage subsumed in Solomon's recoveries for breach of warranty and emotional injury, or by making unwarranted use of the triple rent clause of § 14. Accordingly, we vacate it.
When the improper $10,000 verdict is removed, no overlap remains in Solomon's damages. The verdict for breach of warranty reflects only lost rental value, while the verdict for infliction of emotional distress represents only damages for personal injury. Therefore, we affirm the $35,000 and $1,000 verdicts in Solomon's favor.
6. Attorneys' fees. After trial, the judge assessed attorneys' fees of slightly more than $40,000 for Solomon, based on the fee provision of G.L.c. 186, § 14. Gem's primary objection to this award is that the judge improperly considered legal services related to Solomon's claim for emotional distress.
A statutory fee award should not cover effort expended on independent claims that happen to be joined with statutory claims in a single proceeding. See Hanner v. Classic Auto Body, Inc., 10 Mass.App.Ct. 121, 124 (1980). As we emphasized in our discussion of damages, however, the partition of Solomon's claims was a matter of form only, and
Section 14 provides that tenants may recover "actual and consequential" damages from landlords who have interfered with their quiet enjoyment of leased premises. We have noted that this provision was intended to expand the damages recoverable for breach of the covenant of quiet enjoyment. Darmetko v. Boston Hous. Auth., 378 Mass. 758, 761 n. 4 (1979).
We also reject Gem's contention that the fee award was excessive and unreasonable. The judge made detailed findings as to the fee award, following the guidelines we set out in Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979), and Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 629 (1978). He excluded duplicative and unnecessary work, and work spent on Solomon's negligence claim, on which he had directed a verdict for Gem. Judges have broad discretion in awarding fees, and we see no reason to disturb the judge's determination in this case. Linthicum, supra at 388. Heller, supra at 629-631.
In sum, we affirm the judgments for Solomon for reckless infliction of emotional distress, breach of the warranty of habitability, and attorneys' fees. We also affirm the judgment for Gem on Solomon's claim of negligence and strict liability. Finally, we vacate the $10,000 judgment for Solomon for interference with quiet enjoyment, and direct that judgment should be entered for Gem on that aspect of the case.
"Any lessor or landlord of any building or part thereof occupied for dwelling purposes, other than, a room or rooms in a hotel, but including a mobile home or land therefor, 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, light, power, gas, elevator service, telephone service, janitor service or refrigeration service to any occupant of such building or part thereof, who willfully or intentionally fails to furnish such water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service at any time when the same is necessary to the proper or customary use of such building or part thereof, or any lessor or landlord who directly or indirectly interferes with the furnishing by another of such utilities or services, or who transfers the responsibility for payment for any utility services to the occupant without his knowledge or consent, or any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant, or who attempts to regain possession of such premises by force without benefit of judicial process, shall be punished by a fine of not less than twenty-five dollars nor more than three hundred dollars, or by imprisonment for not more than six months. Any person who commits any act in violation of this section shall also be liable for actual and consequential damages or three months' rent, whichever is greater, and the costs of the action, including a reasonable attorney's fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing."