MARILYN SAUCIER v. DAVID S. WALD and another [Note 1]

KARSTETTER, J. Plaintiff Marilyn Saucier ("Saucier") sued her landlords, David S. Wald and Phyllis Z. Wald ("the Landlords"), for breach of the covenant of quiet enjoyment, intentional infliction of emotional distress, negligent infliction of emotional distress, and violations of G.L. c. 93A. She based those claims in large part on the theory that the Landlords failed to address harassment she suffered from another tenant, Tracy Casner ("Casner"). The Landlords moved for summary judgment, which was granted on all counts in the Newton District Court on February 24, 2017. Saucier timely filed this appeal. We affirm.

1. Background facts. The material facts were not disputed and are herein taken in the light most favorable to Saucier. [Note 2] Saucier resided at 54B Elm Street in Waltham, Massachusetts, which was owned by the Landlords; 54A Elm Street is located in the same building and is also owned by them. The premises comprise four apartments, a dental office, and a parking lot. Saucier's at-will tenancy began in 2002. Casner's tenancy at 54A Elm Street began some thirty years ago pursuant to a lease through the Waltham Housing Authority, which renewed annually in the fall.

For some time, and most especially beginning in late 2013 or early 2014, Casner harassed Saucier regarding parking and other issues at the premises. Saucier repeatedly sought the help of the police. She installed surveillance video cameras to record Casner's conduct. She communicated with the Landlords, as did Casner, throughout the end of 2014 and early 2015 about much of the conflict between them. She hired an attorney who, in early 2015, sent two letters to the Landlords outlining issues with Casner. [Note 3] Saucier also ultimately sought the aid of the court and, on August 7, 2015, obtained a harassment prevention order pursuant to G.L. c. 258E against Casner. For

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purposes of this recitation, it suffices to say that Casner's conduct substantially interfered with Saucier's quiet enjoyment of her unit and caused her emotional distress.

Initially, the Landlords responded to Saucier's complaints about Casner with the advice that she simply ignore Casner. In July, 2014, the Landlords wrote to "the tenants of 52 Elm Street" about not interfering with the rights of other tenants "to peacefully live in [their] apartment[s] . . . which could result in eviction from your apartment." On March 25, 2015, the Landlords wrote directly to Casner threatening eviction if she interfered "with our other tenants or their authorized guests." On August 5, 2015, the Landlords notified Casner that her lease would not be renewed on October 31, 2015.

2. Discussion. a. Breach of covenant of quiet enjoyment. General Laws c. 186, § 14 provides, in pertinent part: "Any lessor or any landlord of any building or part thereof occupied for dwelling purposes . . . who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant . . . shall . . . be liable for actual and consequential damages or three month's rent, whichever is greater, and the costs of the action, including a reasonable attorney's fee . . . ." While the statute does not require that the landlord's conduct be intentional, Simon v. Solomon, 385 Mass. 91, 100-103 (1982), it does require that the landlord's conduct cause a serious interference with the tenant's quiet enjoyment. Doe v. New Bedford Hous. Auth., 417 Mass. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982). Saucier's claim is that the Landlords indirectly interfered with her quiet enjoyment because they failed to prevent the direct interference from Casner.

The general rule is that a "landlord is not chargeable because one tenant is causing annoyance to another, even where the annoying conduct would be a breach of the landlord's covenant of quiet enjoyment if the landlord were the miscreant." Blackett v. Olanoff, 371 Mass. 714, 717 n.4 (1977). In analyzing whether there is a breach of the covenant, it is the landlord's conduct and not his intentions that controls. Id. at 716. A landlord may be held liable for the conduct of a third party only where a breach of a tenant's right to quiet enjoyment is the result of the "natural and probable consequence of what the landlord did, what he failed to do, or what he permitted to be done." Id. The landlord in Blackett was liable because he entered into a lease with a third party that permitted the third party to engage in the very activity (operation of a cocktail lounge with concomitant loud music) that the landlord knew would interfere with the rights of another tenant. Id. at 717. The Court distinguished its holding in Blackett from "the usual annoyance of one residential tenant by another, where traditionally the landlord has not been chargeable with the annoyance." Id. See also Katz v. Duffy, 261 Mass. 149 (1927); DeWitt v. Pierson, 112 Mass. 8 (1873). This case falls squarely within the general rule.

This case is distinguishable from Doe v. New Bedford Hous. Auth., 417 Mass. 273 (1994). In Doe, the grant of summary judgment to the landlord housing authority was reversed on the tenants' breach of the covenant of quiet enjoyment claim as well as on their statutory cause arising from G.L. c. 121B, §§ 32C and 32D. [Note 4] The landlord had

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notice of the ongoing threat to the tenants' health and safety as a result of crowds of people, both tenants and nontenants, engaged in drug dealing at a public housing project. The plaintiff tenants contended that the defendant caused a serious interference with their right of quiet enjoyment by failing to take necessary measures to provide reasonable security.

The Court in Doe did not hold that the conduct of the landlord constituted a breach of the covenant; it held, instead, that on the record before it, a trial was necessitated to determine what, if any, measures the housing authority had taken to remove the nontenants engaged in unlawful activity and to determine the seriousness or substantiality of the interference with the tenancies. Significantly, in Doe, the interfering conduct was criminal and affected numerous tenants, and the defendant was a public housing authority with a statutory duty under G.L. c. 121B, not private landlords being asked to deal with the harassment of one tenant by another. More importantly, the record before the Court in Doe was not sufficient for the Court to determine whether the landlord had taken steps to remove the nontenants engaged in unlawful activity.

Saucier's landlords did not affirmatively act to create or foster the circumstances giving rise to the interference with Saucier's quiet enjoyment. Her claim is merely that the Landlords had control over Casner's tenancy in the sense that they could have started eviction proceedings earlier. [Note 5] We view the facts in the light most favorable to Saucier and nevertheless conclude that summary judgment was appropriate.

b. Emotional distress claims. To survive summary judgment on her intentional infliction of emotional distress claim, Saucier must produce evidence that the Landlords intended to cause, or should have known that their conduct would cause, emotional distress; the Landlords' conduct was extreme and outrageous; the Landlords' conduct caused Saucier's distress; and Saucier suffered severe distress of a nature that no reasonable person could be expected to endure. Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976); Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 466 (1997).

No reasonable fact finder could conclude that the Landlords' conduct was "beyond all bounds of decency" and "utterly intolerable in a civilized community." Agis, supra at 145. Moreover, Saucier acknowledged in discovery that it was Casner who caused her emotional distress.

To recover for negligent infliction of emotional distress, a plaintiff must prove (1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case. Payton v. Abbott Labs, 386 Mass. 540, 557 (1982). To survive summary judgment on a negligent infliction of emotional distress claim, the plaintiff must do more than allege mere upset, dismay, humiliation,

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grief, and anger. Rather, the plaintiff must corroborate her mental distress claim with enough objective evidence of harm to convince a judge that her claim presents a sufficient likelihood of genuineness to go to trial. See Sullivan v. Boston Gas Co., 414 Mass. 129, 137-138 (1993); Bresnahan v. McAuliffe, 47 Mass. App. Ct. 278, 283-284 (1999).

Saucier claims as to the fourth element that her emotional distress manifested itself in a lack of sleep and excessive crying. Saucier did not provide any corroboration of her symptoms either by affidavits from witnesses to her symptoms or from a medical expert. Summary judgment was therefore appropriate.

c. Consumer Protection Act claim. The record does not contain evidence from which we could conclude that Saucier made sufficient written demands for relief as required by G.L. c. 93A, § 9(3). The record contains references to two letters having resulted in responses from the Landlords in February, 2015 and March, 2015, but as noted above, those letters are not in the record. In her brief, it appears that Saucier predicates her G.L. c. 93A claim on her quiet enjoyment and emotional distress claims. Because we have an insufficient record from which to assess her G.L. c. 93A claim as being based on anything other than her other claims, and because summary judgment was appropriate on the predicate claims, this claim too must fail. Having ruled thus, we need not reach her request for an award of appellate attorney's fees.

Judgment affirmed.