The “Who, What, When, Where and How” of Claims for Code-Related Injuries


Significant legal precedent has developed in Massachusetts recently concerning liability for personal injuries resulting from defective or unsafe conditions found on commercial and residential properties.   This issue holds significant implications for owners, landlords, tenants and property managers.

The easiest way to analyze liability for defective conditions on commercial and residential property is to conduct a simple “Who, What, Where When, and How” with respect to the events leading to those injuries sustained.   More specifically:

Who was in control of the building at the time of the injury; owner?   The landlord (if different from the owner)?   A property management company?  A commercial tenant?   The issue of control is typically determined by analyzing the various contractual arrangements in place at the time of injury, and the obligations assigned thereunder.   More than one party may be liable for the failure to make a premises safe.

What type of building — commercial or residential?  Strict liability will be imposed on any person in control of a commercial property as a result of any personal injuries sustained on the property due to building code violations.   With respect to mixed-use buildings, residential areas can be distinguished from areas open to public; if the injury takes places on a residential area, the next question is:

When did injury occur — before or after notice to the person or entity in control of the property?  With respect to residential properties, damages will be awarded for injuries sustained as a result of known defects that the person in control has failed to repair within a reasonable amount of time.

Where on the premises was the unsafe or defective condition causing the injuries found?  Somewhere vital to the use of the leased premises?  Not every building code violation amounts to a material danger to the health and safety of occupants.   With respect to injuries taking place on commercial properties, this question is important for purposes of analyzing the foreseeability of whatever injury has occurred.   With respect to residential properties, this question is of utmost importance, because defects found on an area vital to the tenants’ enjoyment of the property will constitute a “breach of the implied warranty of habitability” if not timely repaired; any injured party can subsequently seek 3X the amount of their actual damages in Court.

How — for any personal injury action, the building code violation must be the proximate cause of the injury in question; that is, the injured party must prove that there was greater probability that the injury complained of was more likely due to the defect or code violation in question than any other cause.

If you have any question concerning liability for conditions discovered on a piece of commercial or residential real estate you own, please contact the attorneys at The Law Office of Peter M. Mirageas.