The recent Massachusetts Superior Court decision in Field, et al. v. Highbridge Concierge, Inc., et al., 1784 CV 02486-B (Mass. Super. Ct. July 5, 2022) (Roach, J.), defines the standard of care that condominium trusts owe to unit owners and others lawfully within the common areas. The civil action in Field arose from the murders of two doctors in their penthouse unit in a condominium in South Boston (the “Condominium”). The personal representatives of the decedents (“Plaintiffs”) brought claims under the Wrongful Death Act, among others, against Bayberry Management, LLC (“Bayberry”), the Condominium’s management company; Highbridge Concierge, Inc. (“Highbridge”), the concierge service provider for the Condominium; and the Condominium Trust (“Trust”).

Given the decision, condominium associations should strongly consider attending to security concerns raised by unit owners and carefully review their security measures and contracts with management companies and/or concierge service providers.

The court denied the Trust’s and the other Defendants’ motions for summary judgment with respect the Plaintiffs’ wrongful death claims, and the case is still pending in the trial court. The Plaintiffs allege that the murderer, Bampumim Teixeira (“Teixeira”), was able to enter the building, invade the victims’ home and commit the murders because of the negligence of the Defendants. The Wrongful Death Statute permits a claim for negligence that causes the death of another. To prove a claim for negligence, a plaintiff must establish that (1) the defendant owed the plaintiff a duty of reasonable care, (2) the defendant breached that duty, (3) the plaintiff was harmed, and (4) and there was a causal relationship between the defendant’s breach and the plaintiff’s harm. The Defendants each moved for summary judgment arguing that they had no duty to protect the decedents from criminal activity. The court disagreed.

The Building

The factual record on summary judgment showed that the Condominium is a 144-unit, 11-story building with a three-level parking garage. Entering the lobby requires either a key fob or to be buzzed in by a concierge. A concierge was on duty 24/7, and there were 14 CCTV feeds viewable by the concierge. The only feed from the parking garage was pointed towards two vehicle garage doors. With respect to the building’s elevators, and at the time of the murders, anyone could enter the service elevator from level P-1 of the parking garage, but a key fob was still required to send the elevator to a residential floor. However, anyone without a key fob could gain access to any floor, including the penthouse unit, by waiting inside the elevator for it to summoned by someone else on a residential floor; exiting the elevator on that floor; and then using the unlocked internal stairwells to access other floors (which is what Teixeira allegedly did).

The Condominium Trust’s Duty of Care

With respect to the duty of care owed by the Trust, the trial court noted that there is no appellate court decision in the Commonwealth that addresses the duty of care, if any, owed by a condominium association to protect unit owners against criminal acts of third parties through the common areas. However, the trial court was persuaded by the rulings of courts of other states and existing social values and customs to find that that condominium associations should be held to the same duty of care for common areas as that of a landlord, and that such finding is consistent with Massachusetts law. The trial court further held that in Massachusetts, a landlord “is not a guarantor of the safety of persons in a building’s common area. A landlord is not free, however, to ignore reasonably foreseeable risks of harm to tenants, and others lawfully on the premises, that could result from unlawful intrusions.” Id. at 18 (citing Griffiths v. Campbell, 425 Mass. 31, 34 (1997)). The court held that, like a landlord, a condominium association bears a duty to exercise due care for the residents’ safety in those areas under the condominium association’s control and, based on the summary judgment factual record in Fields, the court found that the Trust owed a duty of care because it was reasonably foreseeable to the Trust that an intruder could enter the garage, access the penthouse unit, and then harm residents. Accordingly, the court denied the Trust’s motion for summary judgment.

The Management Company’s Duty of Care

The court held that Bayberry assumed the Trust’s duty to protect the common areas from intruders through its Management Agreement with the Trust. The Management Agreement requires that Bayberry enter into a contract for security services. The court noted that Bayberry’s duty to protect the common areas from intruders was further supported by evidence in the record, including: certain testimony of Bayberry’s president that he satisfied the security requirement by contracting for concierge services; emails between one of the decedents and Bayberry that demonstrated that the decedent relied upon Bayberry to protect the resident; and emails from Bayberry demonstrating that it took charge when security issues arose. Based upon the record, Bayberry owed a duty to the decedents and thus, the court denied Bayberry’s motion for summary judgment.

Highbridge

The court held that Highbridge also assumed the Trust’s duty to protect the common areas from intruders. The Concierge Services Agreement (“CSA”) under which Highbridge operated provides that its services include, among other things, access control, vendor management, and emergency response. Highbridge’s Concierge Services Manual further requires Highbridge to perform security-related functions, including making daily rounds of the building, monitoring the CCTV, reporting criminal activity, and unlocking elevator doors. Highbridge, on the other hand, relied upon the language in the CSA, which provides that Highbridge “is not an insurer of the building’s security, safety or general exposure.” The court held that the functions taken on by Highbridge were intended, at least in part, to prevent intruders from entering the Condominium through its common areas, and once security measures were taken on by Highbridge, it had a duty to perform those functions with reasonable care, which includes the prevention of foreseeable intruders from entering the common areas.

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It is important to understand that this was a trial court decision on the Defendants’ motions for summary judgment as to their respective theories of lack of a duty of care as a matter of law. At this stage, the court did not determine that the Defendants are liable, but rather the court merely rejected the Defendants’ arguments that the case should be dismissed because they could not be liable for third-party criminal activity as a matter of law. The court held that the Defendants had a duty to protect the decedents from criminal activity, and, if the case goes to trial, a jury will determine whether the facts of the case establish the remaining elements of Plaintiffs’ negligence claim.

While there was not a decision relative to liability, this case is of significant importance for condominium trusts, management companies, and concierge service providers because the court defined the required standard of care: i.e. a duty to exercise due care for the resident’s safety in those areas under the association’s control. Given the decision, condominium associations should strongly consider attending to security concerns raised by unit owners and carefully review their security measures and contracts with management companies and/or concierge service providers.

A copy of Field, et al. v. Highbridge Concierge, Inc., et al., 1784 CV 02486-B (Mass. Super. Ct. July 5, 2022) can be viewed here.