
    Jennifer L. Quimby v. Anthony Gargiulo and Marsha A. Gargiulo, Trustees of Consulate Realty Trust, II
    Superior Court, Middlesex, SS
    No. 926129E
    Memorandum Dated January 17, 1995
   Cowin, J.

This is a negligence action brought by plaintiffs against defendants, Anthony Gargiulo and Marsha A. Gargiulo, Trustees of Consulate Realty Trust, II, for failing to provide security measures to their lessee, Hit or Miss and its employees. Defendants have moved for summary judgment on the grounds that because no duty was owed as a matter of law and the rapes of plaintiffs were not foreseeable, defendants are not liable for plaintiffs’ injuries.

The Court has not located, and the parties have not cited, any case in which the Supreme Judicial Court has ruled on the specific question in this case: whether a landlord may be held liable if it violates its duly of care with regard to the security of common areas and a relation can be shown between that breach and the injury that occurs within the leased premises. In view of the Supreme Judicial Court’s analysis in other cases in this area, see, for example, Fund v. Hotel Lenox of Boston, Inc., 418 Mass. 191 (1994); Whittaker v. Saraceno, 418 Mass. 196 (1994); Sharpe v. Peter Pan Bus Lines, Inc., 401 Mass. 788 (1988), and Mullins v. Pine Manor College, 389 Mass. 47 (1983), this Court believes that it is a reasonable application of the principles in these cases to hold that if the landlord falls below its duty of care in the common area and it can be shown that this violation contributed to the plaintiffs’ injuries, an action would lie against the landlord, notwithstanding the fact that the injury occurred within leased premises. The fact that the injury occurred within leased premises may have an impact on the extent of evidence necessary to establish liability, but it is not a fact which should immunize the landlord from liability under all circumstances.

Whether the landlord violated its duty of care in terms of the foreseeability of the rapes in this case and whether any such violation contributed to the plaintiffs’ injuries are questions of fact that cannot be decided on a motion for summary judgment.

ORDER

For the foregoing reasons, the defendants’ motion for summary judgment is DENIED.  