SHANENA BARNES & another [Note 1] vs. METROPOLITAN HOUSING ASSISTANCE PROGRAM.

FRIED, J. The plaintiffs, tenants in a federally subsidized rental assistance program, commenced an action against the Metropolitan Housing Assistance Program (METHAP), the State agency administering the program, for breach of its obligations to inspect for and provide safe housing. The plaintiffs allege that this breach led to lead poisoning of the minor plaintiff because of lead-based paint ingestion at the leased premises. A judge in the Boston Division of the Housing Court Department denied METHAP's motion for summary judgment. The parties filed a joint motion to request the judge to report his order and, in addition, to report certain underlying questions to the Appeals Court. The judge allowed the motion, and reported his ruling for a determination of its correctness. See Mass. R. Civ. P. 64, 365 Mass. 831 (1974). We transferred the case to this court on our own motion and vacate the denial of summary judgment.

I

The Federal government, through the United States Department of Housing and Urban Development (HUD), provides rental subsidies to low income tenants under the Section 8 Housing Assistance Program (HAP) of the United States Housing Act, 42 U.S.C. s.s. 1437 et seq. (1994 & Supp. 1 1995). The purpose of the act is to provide "decent, safe, and sanitary dwellings for families of lower income." 42 U.S.C. s. 1437 (1994). This program is administered through agreement with HUD by State and local agencies (public housing agencies or PHAs). METHAP is one such local agency. Administration of HAP is the subject of Federal statutory and regulatory provisions with which these agencies must comply. In Ayala v. Boston Hous. Auth., 404 Mass. 689, 696-697 (1989), we described the obligations of the PHA under Section 8 and its implementing regulations. For all relevant purposes they had not been changed at the time the contracts in this case were signed. These obligations include the obligation to inspect or to cause to be inspected the

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premises before occupancy by a Section 8 tenant, [Note 2] to assure that the unit is safe, to require the owner of the unit to make repairs before the owner receives a contract with the PHA, and to reinspect the unit on an annual basis thereafter. 24 C.F.R. s.s. 882.209 (h)(1) and (2) (1990); 24 C.F.R. s. 882.211 (b) (1990). The regulations specify that "immediate" lead paint hazards must be eliminated prior to occupancy. 24 C.F.R. s. 35.24 (b)(2)(i) (1990). The regulations define such hazards as paint which "is cracking, scaling, chipping, peeling or loose" in housing constructed at a time when lead-based paint was commonly used. 24 C.F.R. s. 22 (1990).

Under the Section 8 program, the PHA enters into a HUD approved contract with the owner, a housing assistance payments contract (HAP contract), and an annual contributions contract (AC contract) that set out the terms by which the PHA will make rental subsidy payments to the owner, and, among other things, obligates the owner to maintain the premises in a decent, safe, and sanitary condition. The tenant, having been approved by the PHA for participation in the program, executes a HUD prescribed lease with the owner. The lease obliges the owner to provide decent, safe, and sanitary housing in accordance with applicable HUD regulations and the State sanitary code and to make necessary repairs accordingly. This lease is signed by the tenant and owner. Additional provisions relating to other good cause termination of the tenancy by the owner, security deposits, and certain prohibited lease provisions are contained in an addendum, which provides that the PHA initial the addendum.

Barnes had applied to METHAP, and, after her eligibility was determined, housing search workers for the shelter where she was living with her children informed her of a vacancy. Prior to receiving housing, she attended a mandatory orientation program which informed her of the dangers of lead poisoning and advised her to have her children tested for lead poisoning every six months. At the completion of the program, she signed a HUD form entitled "Watch out for Lead Paint Poisoning." Angela Barnes's lease provided that the rent for the apartment in issue here would be $700 a month of which she would pay $39 and the balance would be

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paid by the PHA. A METHAP inspector inspected the premises prior to the occupancy, which began in May, 1989. Barnes stated that the inspector checked for chipped or cracked paint, and that he stated that the apartment was "up to standard." Some months after moving in, the ceiling in her daughter's room "caved in" because of a leak in an upstairs apartment. METHAP insisted that repairs be made, and the owner eventually made some repairs, which METHAP inspected and approved. Barnes also testified that she had found chips of paint in the window areas and that paint chips would appear every time she opened the windows. About eighteen months after she moved in, an inspection revealed the need for extensive deleading, and, two months later, her two year old daughter was diagnosed as having elevated levels of lead in her blood. Because of these problems, the family quit the premises.

The plaintiffs brought this suit against METHAP, stating two distinct grounds. Count I states that METHAP "had a contractual relationship with the plaintiffs . . . obligat[ing it] to provide plaintiffs with safe, habitable and fit housing," and that the minor's lead poisoning was the result of METHAP's breach of its obligations. Count II states that METHAP "owe[d] a duty of reasonable care to the plaintiffs [to provide them with] leadfree housing and [to do] reasonable and appropriate lead inspections." The judge in the Housing Court ruled that, following our decision in Ayala, supra, METHAP was obligated to the plaintiffs as third-party beneficiaries of its HAP contract and AC contract with the owners to provide them with lead-free housing or at least to inspect and protect them against lead hazards. Although the HAP contract and the AC contract had clauses explicitly excluding METHAP's liability to third parties, [Note 3] which the contracts in Ayala did not, the Housing Court held on the authority of Ayala, supra

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at 701, that such exclusionary language was against public policy. The judge then considered the effect of G. L. c. 258, s. 10, and especially s. 10 (f), which was enacted in 1993. The judge stated that he had "no doubt that the Legislature, in adopting [s. 10 (f)] sought to overturn the Ayala decision." [Note 4] Nevertheless, the judge declined to give the legislation retroactive effect, because he found that METHAP's contractual duties to the plaintiffs had vested prior to the enactment and the contract clause of the United States Constitution, art. 10, s. 1, subjects "a state-created impairment of its own obligations . . . to strict constitutional scrutiny," which it cannot survive. [Note 5]

As to plaintiffs' second count, "in looking at the document provided by the plaintiffs, the [judge ruled that he] cannot find that explicit and specific assurance, as defined in G. L. c. 258, s. 10(j) (1)," which would be necessary to impose liability on METHAP for breach of its duty to the plaintiffs apart from any contractual obligation.

The judge denied summary judgment, stating that he was "not finding that the statute as applied is unconstitutional." [Note 6] The judge then reported his order to the Appeals Court to

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determine its correctness. The judge also reported six questions to the Appeals Court. A trial judge, unlike a single justice of this court, may not report a question of law in a civil action, but may, in the circumstances described in Mass. R. Civ. P. 64, report the propriety of a ruling or an order as the judge did here. In such cases, we disregard the questions and evaluate the propriety of the ruling or order. See Jacobson v. Mailboxes Etc. U.S.A., Inc., 419 Mass. 572, 574 n.4 (1995); Roberts v. Worcester, 416 Mass. 804, 805 n.3 (1994).

II

A

METHAP owed no contractual duty to the plaintiffs. The Housing Court judge and the plaintiffs rely on our decision in the Ayala case for the proposition that Section 8 tenants are the intended beneficiaries of the contracts that public agencies like METHAP make with landlords to provide "decent, safe, and sanitary dwellings" - that include dwellings free from lead-based paint hazards. In Ayala, the local agency administering the HAP was the Boston Housing Authority (BHA), which had failed to inspect for lead paint hazards the premises it approved for the plaintiffs' use. The BHA was obligated by its AC contract with the owner to inspect the premises to make certain that it posed no lead paint hazard. We held that Section 8 tenants were intended third-party beneficiaries of this contractual obligation:

"Recognizing a right to enforce these promises against the BHA 'is appropriate to effectuate the intention of the parties.' Flattery v. Gregory, 397 Mass. 143, 148 (1986). . . . When faced with liability for breach of its contractual duty to inspect for, and oversee the remedying of, lead paint hazards, the BHA will have a strong incentive to achieve the goals of the Federal statutes and regulations. We conclude also that HUD, the promisee, intended the plaintiffs to benefit. Id. To rule that these plaintiffs were not intended beneficiaries would mock

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the very goals which Congress and HUD set out to achieve through the Section 8 program, at least as to the lead paint provision: to afford children of families of meager means a decent, safe, and sanitary place to live."

Ayala, supra at 700-701. But the AC contract in Ayala did not contain the exclusionary clause which was present here. The Housing Court, however, relied on Ayala to void that clause as against public policy. The judge held that the same considerations that led us to imply such an obligation in the AC contract in Ayala also rendered void as against public policy any attempt to exclude such an implication. The difficulty with this line of reasoning, which the plaintiffs repeat to us here, is that the Legislature, in enacting G. L. c. 258, s. 10 (f), undertook to negate the doctrine of the Ayala case, and implicitly expressed its conclusion, which we are bound to follow, that no such public policy exists. [Note 7] The exclusion of s. 10 (f) is subject to the saving provision of s. 10 (j) (1), by which an "explicit and specific assurance[] of safety [is] made to the direct victim or a member of his family." Whether or not the obligations stated in the AC contract are sufficiently explicit and specific, they most certainly are not made to the direct victim.

In order to reinstate the third-party contractual obligation to the plaintiffs, the Housing Court and the plaintiffs have recourse to the contract clause of the United States Constitution. The plaintiffs argue that the Legislature's judgment of public policy expressed in s. 10 (f), which was enacted after the contracts in this case were signed, may not be used to deprive the plaintiffs of relief because to do so would allow the State retroactively to alter its contractual obligations. It is not accurate to say, as the Housing Court did, that retroactive adjustments by the State of its contractual obligations must be subject to strict scrutiny. [Note 8] But this inaccuracy is beside the point. In order to reach the conclusion that s. 10 (f) retroactively affected METHAP's contractual obligation

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to the plaintiffs, the Housing Court had first to impose that implicit contractual obligation in the teeth of the very explicit exclusionary clauses. At the time that it entered into the contract with the owner, METHAP made as explicit as possible that it was undertaking no contractual obligations to persons in the plaintiffs' situation and that it intended no third-party beneficiaries to that contract. Quite clearly, any such obligation would be imposed by the court in spite of, not because of, the contract. When the Legislature enacted s. 10 (f), expressing its judgment that there was no public policy favoring third-party contractual liability, it was only confirming the understanding METHAP reasonably believed it had already achieved through the exclusionary clauses in the contracts. [Note 9] There is, therefore, not the kind of retroactive varying of a State's contractual obligation to which the contract clause is addressed. Cf. General Motors Corp. v. Romein, 503 U.S. 181 (1992) (no contract clause violation where Legislature enacted statute repudiating State Supreme Court's interpretation of earlier statute, with effect of increasing private employers' obligations to pay compensation benefits under employment contracts).

B

There remains the claim, implicit in Count 11 of the plaintiffs' complaint, that, quite apart from any contractual obligation to the plaintiffs as third-party beneficiaries to the

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AC contract, the defendant "made to the direct victim or a member of [her] family" the kind of "explicit and specific assurance[] of safety" that the Legislature in G. L. c. 258, s. 10 (j) (1), allowed to survive as a basis for tort liability. We recently considered this provision in Lawrence v. Cambridge, 422 Mass. 406 (1996), where we allowed a claim based on such an assurance of safety to survive the defendant's motion for summary judgment based on the plaintiffs affidavit that "the Cambridge Police promised to protect [the plaintiff] when [he] closed the store at night." Id. at 407. To satisfy the conditions of s. 10 (j) (1), we held that there must be "a spoken or written assurance, not one implied from the conduct of the parties or the situation [and that] the terms of the assurance must be definite, fixed, and free from ambiguity." Id. at 410. The contract with the owner does not meet the requirements of s. 10 (j) (1) if for no other reason because such assurances as it may contain are not "made to the direct victim or a member of [her] family." The only other materials the plaintiffs offer to meet the requirements of s. 10 (j) (1) are contained in Barnes's deposition. She testified that it was her "understanding" that the METHAP inspector "checked to see if there was chipped and cracked paint," that it was her "recollection that . . . the unit was up to standard and passed it . . . [a]nd that meant that [she was] able to move into it." She further testified in her deposition that, after the ceiling collapse and repairs, METHAP sent another inspector "to make sure that the work was done" and that "the inspector found that the apartment now passed." [Note 10] This is not enough to meet the requirements of the statute. It is not an explicit and specific assurance that the premises are free of lead paint hazards. Rather, it is the sort of assurance "implied from the conduct of the parties or the situation," that we have held does not meet the requirements of the statute. Lawrence v. Cambridge, supra. We would fail to respect the intent of the Legislature to make s. 10 (j) (1) apply to the truly exceptional case where direct and explicit assurances are given to a particular person quite apart from the normal carrying out of officials' routine duties if we allowed statements such as these to pass the bar of summary judgment. Accordingly, we conclude that the second count in the plaintiffs'

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claim should also be dismissed. The dismissal should be without prejudice, so that the Housing Court may, in its discretion, allow the plaintiffs to offer additional affidavits or other materials that may satisfy the standard we set out here for overcoming a motion for summary judgment.

The order of the Housing Court denying summary judgment with respect to Count I is vacated. In respect to Count II, the case is remanded to that court for further proceedings in accordance with this opinion.

So ordered.