Argued September 14, 2015.
Civil action commenced in the Superior Court Department on July 2, 2010.
Motions for summary judgment were heard by Judith Fabricant, J., and the case was tried before Thomas A. Connors, J.
Alicia L. Downey for the plaintiffs.
John D. Fitzpatrick for the defendant.
Present: Cypher, Green, & Hanlon, JJ.
After a trial, the jury returned a verdict for the defendant, Chutehall Construction Co., Ltd. (Chutehall). The plaintiffs, Christopher and Mairead Downey, appeal from the resulting judgment. Their appeal presents a narrow issue -- whether a contractor's potential liability for a violation of the relevant building code, which, pursuant to G. L. c. 142A, § 17(10), constitutes a per se G. L. c. 93A violation, is waived when a homeowner requests that the work be done in a manner that results in the code violation. We agree with the [42 N.E.3d 1195] Downeys that, at least in the circumstances of this case, an oral waiver of building code
requirements by the homeowner does not preclude the contractor's liability for a building code violation -- and the resultant c. 93A violation -- particularly where a violation carries potential public safety consequences.
The jury could have found the following facts. The Downeys hired Chutehall in 2005 to replace the roof and a roof deck on their townhouse in the Beacon Hill section of Boston. It is undisputed that the building code permits no more than two layers of roofing on the building. See 780 Code Mass. Regs. § 1512.3 (1997). The original proposal that Chutehall submitted to the Downeys, as well as the final bill, included a line item for stripping off the existing roof system. In fact, however, Chutehall did not strip the roof, but instead installed a new rubber membrane over the existing roof. Sharply disputed at trial was whether Christopher Downey represented to Chutehall that there was only one layer of roofing at the time of the work; refused to permit Chutehall to strip the existing layers from the roof; refused to permit Chutehall to do test cuts in the roof to determine the number of existing layers; and specifically instructed Chutehall to install a new rubber membrane over the existing roof.
A few years after Chutehall put on the roof, the Downeys sought to install heating, ventilation, and air conditioning (HVAC) equipment. The HVAC contractor cut a hole through the roof and discovered four layers of roofing materials and evidence of leaking (that is, wet insulation). The Downeys then hired a new roofing contractor to strip the roofing materials, put on a new roof, and reinstall the deck.
Thereafter, the Downeys filed this action against Chutehall seeking to recover the costs of replacing the roof and the deck. The only claim at ...