Ford v. Boston Housing Authority
Ford v. Boston Housing Authority
Opinion of the Court
In May, 1992, Dennis Ford (plaintiff) was injured while fleeing from a fire in an apartment building owned by the Boston Housing Authority (BHA). At the time, he was visiting a friend who lived in the building. The friend’s young nephew
The plaintiff filed a complaint in the Superior Court in May, 1994, under the Massachusetts Tort Claims Act, G. L. c. 258, alleging the BHA negligently failed to provide more than one means of egress from the building. After trial in May, 1997, the jury returned a verdict in favor of the plaintiff.
This reliance on Wheeler is misplaced. In that case, it was alleged that the BHA negligently failed to provide adequate security for persons lawfully on the premises, including failing to secure the front door and the door leading to the roof. The plaintiff there was injured during an exchange of gunfire between unknown persons on the rooftop and in the parking area. We held that the discretionary function exception was applicable because there were no prescribed statutory, regulatory,
The BHA seeks in this case to bring the locking of the roof door within the discretionary function exception by asserting that the door was locked to prevent criminal activity and to eliminate the potential for accidents which might result if tenants had access to the roof. The BHA cites the testimony of its program services coordinator, that the roof door was locked in 1982 or 1983, for what he termed security and safety reasons, after he had been directed to secure it. Although the issue is not central to our resolution of the case, that vague testimony does not necessarily indicate that the decision was “an integral part of governmental policy making or planning,” Wheeler v. Boston Hous. Authy., supra at 39, or one which can be “characterized by a ‘high degree of discretion and judgment involved in weighing [security] alternatives and making choices with respect to public policy and planning.’ ” Id. at 40, quoting from Whitney v. Worcester, 373 Mass. 208, 218 (1977).
Central to the plaintiff’s claim in this case is evidence that the building was not in compliance with the State Building Code. That code provides that buildings, such as the one at issue here, must have two means of egress. See 780 Code Mass. Regs. §§ 809.2, 3203.7 (1992). A violation of the code is evidence of negligence as to the consequences the code and its regulations were intended to prevent. See Perry v. Medeiros, 369 Mass. 836, 841 (1976), and cases cited. Unlike in Wheeler, where the BHA was determined to be exempt from a. statute which mirrored provisions of the State Sanitary Code, here the BHA cites no exemption, nor are we aware of any, from the State Building Code. “The first step in deciding whether a plaintiff’s claim is foreclosed by the discretionary function exception of [G. L. c. 258, § 10(6),] is to determine whether the governmental actor had any discretion at all as to what course of conduct to follow. . . . [I]f the governmental actor had no discretion because a course of action was prescribed by a statute, regulation, or established agency practice, a discretionary function exception to governmental liability has no role to play in deciding the case.” Harry Stoller & Co. v. Lowell, 412 Mass.
The BHA, relying on Perry v. Medeiros, supra at 842, argues that the judge improperly allowed the plaintiff’s expert to testify to the ultimate issue in the case. The expert stated, “It’s my opinion that if the door was locked at the time of the accident . . . that would have been noncompliance with the State building code.”
Judgment affirmed.
The jury returned a verdict for the plaintiff of $225,000, which was reduced to $100,000 by operation of G. L. c. 258. The jury found against Jean Ford on her consortium claim. The record does not indicate the resolution of the consortium claims of the other plaintiffs. Separate claims against the city of Boston were dismissed after its motion for a directed verdict was allowed.
Because of our decision, we do not address the plaintiff’s argument that the BHA waived its right to appeal by not renewing its motion for directed verdict at the close of all the evidence.
There was no objection to the question preceding this answer, which was, “What is your opinion, sir?” The previous question to which there had been an objection was a hypothetical asking whether the witness had an opinion whether having the door locked on the day in question “would or would not be in compliance with the State building code.” Although we treat the expert’s response, standing alone, as not directly responsive to the hypothetical question, we give the BHA the benefit of a general objection to any request that the expert render an opinion on the subject of the State Building Code.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.