WILLIAM MAHONEY, JR., & another vs. GEORGE W. BALDWIN & another, trustees.

WILLIAM MAHONEY, JR., & another [Note 1] vs. GEORGE W. BALDWIN & another, [Note 2] trustees.

27 Mass. App. Ct. 778

March 14, 1989 - September 15, 1989

Plymouth County

Present: PERRETTA, WARNER, & FINE, JJ.

A tenant's action under G. L. c. 186, Section 19, against his landlord for injuries resulting from the landlord's failure to correct an unsafe condition on the premises was subject to the three-year statute of limitations, G. L. c. 260, Section 2A, applicable to tort actions, and not the four-year statute, G. L. c. 260, Section 5A, applicable to actions arising out of "violations of any law intended for the protection of consumers." [779-782]

CIVIL ACTION commenced in the Superior Court Department on July 17, 1987.

The case was heard by Suzanne V. DelVecchio, J., on a motion for summary judgment.

Brian E. Concannon for the plaintiffs.

Mark S. Shuman for the defendants.

PERRETTA, J. General Laws c. 186, Section 19, gives a tenant a right of action in tort against a landlord whose failure to correct an unsafe condition on the premises causes injury to the tenant. [Note 3]

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More than three years after the tenant William Mahoney fell on a stairway in the common area of his apartment house, he and his wife brought this action in the Superior Court. Concluding that the claim was time barred by the three-year statute of limitations applicable to tort actions, G. L. c. 260, Section 2A, the judge allowed the defendants' motion for summary judgment. The sole question raised by the appeal from the ensuing judgment is whether G. L. c. 186, Section 19, is subject to the four-year limitation period extended to actions arising out of "violations of any law intended for the protection of consumers." G. L. c. 260, Section 5A, as appearing in St. 1983, c. 636, Section 29. We affirm the judgment.

By its express language, c. 260, Section 5A, does not restrict itself to causes of action arising out of violations of only those laws therein specified. [Note 4] Rules of statutory construction lead us to

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conclude, however, that the phrase "including but not limited to," which precedes the specification, limits the applicability of Section 5A to those types of statutes therein particularized. As stated in an analogous case, Haas v. Breton, 377 Mass. 591 , 595 (1979): "Traditional methods of statutory construction reinforce our conclusion. `A general term in a statute or ordinance takes meaning from the setting in which it is employed. The literal meaning of a general term in an enactment must be limited so as not to include matters that, although within the letter of the enactment, do not fairly come within its spirit and intent.' Kenney v. Building Comm'r of Melrose, 315 Mass. 291 , 295 (1943). Accord, Commonwealth v. Baker, 368 Mass. 58 , 67-71 (1975); Koller v. Duggan, 346 Mass. 270 , 273 (1963). `The problem is to determine what particulars that were not mentioned are sufficiently like those that were, in ways that are germane to the subject and purpose of the act, to be made subject to the act's provisions by force of the general reference.' 2A C. Sands, Sutherland Statutory Construction Section 47.18, at 110 (4th ed. 1973)." We look to determine whether the plaintiffs' claims arising out of G. L. c. 186, Section 19, have the "same characteristics," Haas v. Breton, 377 Mass. at 596, as those laws specified in Section 5A, that is, "law[s] intended for the protection of consumers." G. L. c. 260, Section 5A.

"Consumer law, in a sense, becomes little more than the modern trend towards creating a more equitable balance for the consumer in the marketplace." Alperin & Chase, Consumer Rights and Remedies Section 1, at 2 (1979). See Commonwealth v. DeCotis, 366 Mass. 234 , 238 (1974). As can be seen from the consumer legislation listed in Section 5A, those laws seek to remedy the imbalance which exists primarily because of a lack of parity in bargaining power between the consumer and the provider of consumer goods or services. [Note 5]

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These statutes reflect a legislative attempt to achieve parity between the consumer and the provider of goods and services by requiring that certain disclosures be made to consumers so that they can make informed purchasing decisions and by prohibiting certain acts or conduct which, even if not tortious, exacerbate or exploit consumer bargaining disadvantages. The harm sought to be prevented by these statutes is, primarily, economic harm.

There are many statutes that prohibit certain conduct or impose obligations. It does not follow, however, that these many laws are swept within the ambit of G. L. c. 260, Section 5A, simply by reason of the fact that the claim is made by a purchaser of goods or services. If that were so, the applicable limitation period would turn on who was bringing the claim rather than the nature of the claim. Such would be the case with G. L. c. 186, Section 19, which gives a cause of action not only to a tenant but also to "any person rightfully on said premises."

Although some of the purposes of consumer legislation might be incidentally or indirectly furthered by G. L. c. 186, Section 19, that law does not have the protection of consumers as its intended and primary goal. As discussed in Young v. Garwacki, 380 Mass. 162 , 164-166 & n.3, 170-171 (1980), the statute reforms the common law by establishing a standard of care owed by landlords in repairing their premises irrespective of the status of the injured person (tenant, licensee, invitee). See also Great Atl. & Pac. Tea Co. v. Yanofsky, 380 Mass. 326 , 330-331 (1980). Its obvious purpose is to protect all persons against the risk of physical injury. See Young v. Garwacki, 380 Mass. at 167, quoting from Mounsey v. Ellard, 363 Mass. 693 , 707 (1973).

Notwithstanding the fact that the plaintiffs were tenants, purchasers of residential space, when they sustained their injuries,

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their claims do not arise out of a violation of a "law intended for the protection of consumers." G. L. c. 260, Section 5A. Their action is, therefore, time-barred under G. L. c. 260, Section 2A.

Judgment affirmed.

FOOTNOTES

[Note 1] Suzan Mahoney, who seeks damages for loss of consortium.

[Note 2] Maria C. Baldwin, who, with George W. Baldwin, is a trustee of Anthony Realty Trust.

[Note 3] This statute, inserted by St. 1972, c. 665, reads, in full:

"A landlord or lessor of any real estate except an owner-occupied two-or three-family dwelling shall, within a reasonable time following receipt of a written notice from a tenant forwarded by registered or certified mail of an unsafe condition, not caused by the tenant, his invitee, or any one occupying through or under the tenant, exercise reasonable care to correct the unsafe condition described in said notice except that such notice need not be given for unsafe conditions in that portion of the premises not under control of the tenant. The tenant or any person rightfully on said premises injured as a result of the failure to correct said unsafe condition within a reasonable time shall have a right of action in tort against the landlord or lessor for damages. Any waiver of this provision in any lease or other rental agreement shall be void and unenforceable. The notice requirement of this section shall be satisfied by a notice from a board of health or other code enforcement agency to a landlord or lessor of residential premises not exempted by the provisions of this section of a violation of the state sanitary code or other applicable by-laws, ordinances, rules or regulations."

[Note 4] Section 5A reads, in full:

"Actions arising on account of violations of any law intended for the protection of consumers, including but not limited to the following: chapter seventy-five C; chapter seventy-five D, section seven N of chapter ninety; sections twenty-one, twenty-one D, twenty-eight, forty-eight, forty-nine, sixty-nine, and seventy of chapter ninety-three; chapter ninety-three A; sections forty-six A to forty-six R, inclusive, and sections ninety-six to one hundred and fourteen B, inclusive of chapter one hundred and forty; chapter one hundred and forty D; section one hundred and twenty-seven A of chapter one hundred and sixty-four; chapter one hundred and seventy-six D; sections fourteen, fifteen B, fifteen C, and eighteen of chapter one hundred and eighty-six; sections thirteen I, thirteen J, and thirteen K of chapter two hundred and fifty-five; chapter two hundred and fifty-five B; chapter two hundred and fifty-five C; and chapter two hundred and fifty-five D; whether for damages, penalties or other relief and brought by any person, including the attorney general shall be commenced only within four years next after the cause of action accrues" (emphasis added).

[Note 5] See, e.g., G. L. c. 75C (private correspondence schools); G. L. c. 75D (private business schools); G. L. c. 93, Section 28 (collection agencies) Sections 48 & 49 (credit bureaus) Section 69 (multi-level distribution companies) Section 70 (certification of title for mortgage); G. L. c. 93A (unfair acts or practices in trade or commerce); G. L. c. 140, Sections 46A-46R (employment agencies) Sections 96-114B (small loan companies); G. L. c. 140D (consumer credit disclosure); G. L. c. 176D (unfair and deceptive acts and practices in insurance industry); G. L. c. 255B (retail installment sales of motor vehicles); G. L. c. 255C (insurance premium finance agencies); G. L. c. 255D (retail installment sales and service); G. L. c. 186, Sections 14, 15B, 15C, and 18 (unfair acts and practices by a landlord).