Klairmont v. Gainsboro Restaurant, Inc.
465 Mass. 165
| Mass. | 2013Background
- Jacob Freeman fell on a hazardous basement staircase at Our House East in Boston in the early hours of April 1, 2007 and died two days later.
- Plaintiffs, Jacob’s parents, sued Our House East and the Gainsborough Street Realty Trust trustees for wrongful death and 93A violations.
- Trial evidence showed decades of building code violations, lack of permits, and dangerous staircase conditions known to management.
- The judge reserved ruling on the 93A claim, found code violations, and held that those violations were unfair or deceptive under 940 CMR 3.16(3).
- The jury found no substantial causation for wrongful death under common-law theories, but the judge later awarded 93A damages and then trebled them.
- The court on appeal vacated the 93A damages and fees, remanding for recalculation consistent with 93A limitations and survivorship rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can building code violations support 93A liability under 940 CMR 3.16(3)? | Code violations may be unfair/deceptive in a trade/commerce context. | Not all code violations qualify; require unfair or deceptive conduct in commerce. | Yes, limited to unfair/deceptive conduct in commerce. |
| Does the 93A claim survive as a separate action under the Massachusetts survival statute? | 93A claim survives to vindicate decedent’s rights; damages run to estate. | Survival may be limited; wrongful death governs survivors’ damages. | Yes; 93A claim survives as a distinct survival action, with damages limited to what decedent would have recovered. |
| What damages may be recovered on a surviving 93A claim and how are they calculated? | Plaintiffs may recover estate-related damages including medical and conscious pain and suffering. | Some damages (e.g., future earnings) are duplicative or not recoverable in survival. | Damages limited to decedent’s actual losses up to death; future earnings not recoverable; loss of consortium not duplicative; remand for proper calculation and fee adjustment. |
| May the plaintiffs recover multiple damages and attorney’s fees in a 93A suit where the decedent dies? | Parallel damages and fees are permissible in 93A survival actions. | Need to limit or disallow where appropriate; ensure admissible conduct supports award. | Yes, multiple damages and attorney’s fees may be awarded; remand to recalculate in light of reduced damages. |
Key Cases Cited
- Miga v. Holyoke, 398 Mass. 343 (Mass. 1986) (established parallel remedies under wrongful death and survival statutes)
- Kraft Power Corp. v. Merrill, 464 Mass. 145 (Mass. 2013) (survival/damages framework for 93A in death context)
- Pobieglo v. Monsanto Co., 402 Mass. 112 (Mass. 1988) (joinder and survival concepts for related claims)
- Gasior v. Massachusetts Gen. Hosp., 446 Mass. 645 (Mass. 2006) (survival of punitive damages and contract-like theory in 93A context)
- Darviris v. Petros, 442 Mass. 274 (Mass. 2004) (business/entrepreneurial conduct standard for 93A in regulatory contexts)
- Kattar v. Demoulas, 433 Mass. 1 (Mass. 2000) (jurisdictional application of 93A to business context and causation)
- Hallett v. Wrentham, 398 Mass. 550 (Mass. 1986) (survival damages and wrongful death interplay)
- Walsh v. Chestnut Hill Bank & Trust Co., 414 Mass. 283 (Mass. 1993) (standard for clearly erroneous findings on causation)