HAROLD MORRIS & another [Note 1] vs. JAMES M. HOLT & another. [Note 2]

WILKINS, J. The plaintiffs purchased a house in Attleboro which once had been owned by the defendants. While the defendants owned the house, they negligently constructed an addition to it by placing the addition over a cesspool. The plaintiffs sustained damage to their property as a result of the negligent construction. We hold that the plaintiffs, who purchased the property from the defendants' grantee, are entitled to recover from the defendants in these

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circumstances, and we affirm the judgment entered after a jury verdict in the plaintiffs' favor. We transferred the defendants' appeal here on our own motion.

The defendants argue that their motion for a directed verdict should have been allowed. [Note 3] We summarize the evidence most favorable to the plaintiffs. Originally, a building for commercial use was constructed on the property, and a cesspool to serve the building was installed in 1938. The defendants, who had their home on an abutting lot, acquired the property from one Pinder in 1969, and shortly thereafter undertook to convert the building for use as a single family residence. One of the alterations was the addition of a room, ten feet by sixteen feet. Pinder had told the defendant James H. Holt (Holt) that the cesspool was sixteen feet from the house and that Holt should not construct his proposed addition that close to the cesspool. Holt performed or supervised the construction work himself and built a cement supporting wall for the addition. He testified that he knew that a corner of the addition was "sort of over the cesspool." Mrs. Morris testified that Holt told her that he had put the concrete blocks in the foundation and had "found out the septic system was inside." The State Sanitary Code required that a cesspool be twenty feet from a dwelling unit. Although plumbing work was done inside the house by a licensed plumber, he gave no consideration to the location of the sewage disposal system. In fact, the cesspool was under the addition, inside its foundation walls. The jury would have been warranted in finding that Holt did not obtain a building permit for the addition.

In April, 1971, the defendants sold the property to one Budjinski, who lived in the house until shortly before he sold it to the plaintiffs in June, 1973. The plaintiffs encountered problems with sewage disposal and smelled unpleasant odors which continued in greater or lesser intensity depending on weather conditions. They also had certain water problems

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in the cellar. [Note 4] In May, 1974, the plaintiffs consulted a "registered sanitarian" (see G. L. c. 112, Sections 87LL - 87OO), who discovered the basement toilet backed up and also a pool of water and methane gas in the closed crawl space under the addition. He found the cesspool, which was a hole in the ground about six feet deep and three or three and one-half feet around, located under the addition. The vertical walls of the hole were covered with a slime similar to that found in a dead septic system. As a city health agent, he found that the building was unfit for human habitation and ordered that a lawful sanitary disposal system would have to be installed within seven days or the house would be condemned for human habitation. The plaintiffs installed a new septic system at a cost of $1,500.

There is no serious question that Holt was negligent in the construction of the addition over the cesspool. That construction was a violation of the sanitary code, which the defendants concede is itself some evidence of negligence. See LaClair v. Silberline Mfg. Co., 379 Mass. 21, 27-28 (1979). The jury could reasonably infer that Holt knew the addition was constructed over the cesspool and that he acted unreasonably in so constructing the addition. [Note 5] Additionally, the

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plaintiffs' plumbing problems, the obnoxious odors in the house, and the need to build a new system in compliance with the sanitary code were foreseeable consequences of that negligence. [Note 6]

The fact that the plaintiffs and Holt had no contractual relationship does not aid the defendants. In McDonough v. Whalen, 365 Mass. 506 (1974), we rejected any requirement of privity in a similar (but not identical) situation and upheld the right of the purchaser of a new house to recover for the consequences of the negligence of both the designer and the installer of a septic system on the plaintiffs' premises. Id. at 510-512. See generally Annot., 25 A.L.R.3d 383, 399-402 (1969). We found no sound reason to treat a builder of houses or other realty structures differently from a manufacturer of chattels. McDonough v. Whalen, supra at 511. We held that a contractual relationship was not essential to the establishment of liability for foreseeable harm to the property or injury to persons living on or using the premises. Id. at 512. The principle of the McDonough case is controlling here, and thus it makes no difference that the plaintiffs were remote, rather than immediate, purchasers of the property once owned by the defendants.

Judgment affirmed.