Wyman, et al. v. Ayer Properties, LLC (Lawyers Weekly No. 10-120-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11474 BRYAN WYMAN & others,[1] trustees,[2] vs. AYER PROPERTIES, LLC. Middlesex. March 4, 2014. – July 10, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Real Property, Condominium. Condominiums, Common area. Negligence, Construction work, Economic loss. Damages, Replacement or reconstruction of building, Repairs. Civil action commenced in the Superior Court Department on December 8, 2005. The case was heard by Paul A. Chernoff, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Thomas O. Moriarty (David M. Rogers with him) for the plaintiffs. Thomas H. Hayman (Patrick T. Uiterwyk with him) for the defendant. Henry A. Goodman, for Community Associations Institute, amicus curiae, submitted a brief. CORDY, J. On December 8, 2005, Brian Wyman, Frank Thoms, and Vincent Cascio, as trustees of the Market Gallery Condominium Trust (trustees), filed a civil action against Ayer Properties, LLC (Ayer), seeking damages stemming from the negligent construction of elements of a condominium building by Ayer. The trustees alleged that Ayer — which had purchased and converted the building in question into condominiums — had negligently constructed the window frames, the exterior brick masonry, and the roof of the building, resulting in damage to both the common areas of the building and individual residential units.[3] After a jury-waived trial, a Superior Court judge found that Ayer was negligent in its construction of the window frames, masonry, and roof. He awarded damages for Ayer’s negligence as to the window frames and the roof, because their improper installation had resulted in damage to both the common areas and several individual units. However, because he found that the damage resulting from the defective masonry work was limited to the masonry itself and did not cause or include damage to any individual units, the judge concluded that the economic loss rule precluded the trustees from recovering for Ayer’s negligence as to that portion of the building.[4] In determining the appropriate measure of damages, the judge first calculated the cost to repair and replace the damaged portions of the building,[5] and then reduced that amount by twenty per cent to reflect what the costs would have been at the time of the negligent construction rather than at the time of the actual expenditures for repair […]