South Boston Elderly Residences, Inc. v. Moynahan (2017)

Citation: South Boston Elderly Residences, Inc. v. Moynahan (2017)
Parent Document: South Boston Elderly Residences, Inc. v. Moynahan (2017)
Jurisdiction: Massachusetts (state)
Effective Date: 2017-05-09
Original Source: https://www.courtlistener.com/opinion/4389766/south-boston-elderly-residences... ↗

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       Whether a plaintiff is a person of ordinary sensibilities
has arisen in older cases involving the implied warranty of
merchantability. See, e.g., Payne v. R.H. White Co., supra at
65 (noting, in a case in which the plaintiff had what appears to
have been an allergic reaction to a dress she had bought, that
"[t]he plaintiff must show that the dress was unfit to be worn
by a normal person and cannot recover by merely showing that it
was unfit for her or for some unusually susceptible person to
wear"). However, such cases have addressed that issue as going
to whether there has been a breach of the warranty of
merchantability, not what the measure of damages should be if a
breach of warranty has been shown. Here, the judge found that
the lack of ventilation caused a material breach of the warranty
of habitability (a finding that is not in dispute). Moreover,
the same cases that have recognized an average sensibility
standard in the context of the warranty of merchantability have
also recognized that a plaintiff is entitled to a presumption
that he or she is a person of average sensibility (significantly
reducing the "bite" of such a test). See note 10, supra, citing
id. at 65-66.
                                                                    20 exposure.    However, that distinction supports rather than

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