During the summer of 2004, a mother, child and infant of 1 1/2 years of age moved into a low income apartment located at 285 Central Street in Springfield, Massachusetts. Unbeknownst to the unsophisticated mother, at the time they moved in, the premises was the subject of a litany of building, health and safety code violations. When the cold winter replaced the summer heat, the temperature of the old fashion cast iron radiator in the children's bedroom soared to dangerous levels. This superheated radiator was not equipped with a shut-off valve or any temperature control device of any kind, and did not have a protective cover or heat shield. The mother verbally notified the landlord of the extreme temperature of the radiator on several occasions.

      On January 31, 2005, the infant was sleeping on top of his covers. He was wearing very little clothing as he usually did since the radiator kept the room almost too hot to withstand. At some point during the night, the infant came into contact with the radiator and sustained a full thickness burn to his upper left extremity. He was then taken to Baystate Medical Center in Springfield, where he underwent a split thickness skin graft in which skin tissue from his left thigh was removed and grafted to the burn area. He has sustained vicious and permanent scarring to both his upper left arm and left thigh as a result of his contact with the radiator.

      During the rental of any premises for residential purposes, there exists an implied warranty of habitability requiring that the premises are fit for human occupation. This means that at the inception of the rental there are no latent or patent defects in the facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire time in a condition which makes the property livable.

      Violation of the warranty of habitability carries with it liability for personal injuries caused by a breach. When a tenant suffers personal injury as a result of a landlord's breach of the implied warranty of habitability, the landlord’s contractual obligation to the tenant requires the payment of compensatory damages to the tenant under a strict liability standard. In addition, at a minimum, the warranty of habitability imposes on a landlord a duty to keep a dwelling in conformity with the State Sanitary Code.

      Further, the owner's actions and/or omissions relative to the unsafe condition can give rise to M.G.L. c. 93A exposure. A landlord who fails to meet his/her obligations arising under a warranty, including the implied warranty of habitability, has engaged in unfair and deceptive acts/practices violative of M.G.L. c. 93A §§ 2(a) and 9.

      It was fairly clear that since the subject property was in violation of both the State Building Code and State Sanitary Code, the owners had breached the implied warranty of habitability and were liable to Plaintiff for his injuries and damages resulting from the accident. It was the infant's position that since the owners violated the implied warranty of habitability, they had also violated the aforementioned statute giving rise to attorneys fees and double to triple damages. The problem was that of contributory negligence. The landlord was under no duty to put a protective cover over the hot radiator; however, the mother could, and probably should, have take steps to protect her infant from the radiator known to be dangerously hot for some time prior her infant getting badly burned.

      As a result of the above incident, the infant suffered a horrific injury that necessitated a surgical skin grafting and resulted in a decidedly grotesque scarring that he will carry for the rest of his natural life.

      The case settled for $228,500.00 after mediation despite the liability issues and having had no prior offers of settlement.