Berish v. Bornstein, 437 Mass. 252 (2002)

Citation: Berish v. Bornstein, 437 Mass. 252 (2002)
Parent Document: Berish v. Bornstein, 437 Mass. 252 (2002)
Jurisdiction: Massachusetts (state)
Effective Date: 2002-06-28
Original Source: https://www.courtlistener.com/opinion/6578538/berish-v-bornstein/ ↗

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The motion judge’s dismissal of the negligence claim on the basis of the economic loss doctrine was error because his conclusion that the complaint did not allege damages beyond what that doctrine prohibits was based on an overly restrictive construction of the allegations in the complaint. The complaint alleges that the defects and deficiencies in the condominium development included poor construction of retaining walls, improper installation of skylights and sliding glass doors, improper construction of foundations, failure to install adequate flashing on the roofs, and failure to vent bathroom exhaust fans and attics to the outside. Accepting these allegations as true, it is reasonable to infer that the enumerated “defects and deliciencies” caused property damage beyond the defects in the condominium units themselves, and, therefore, that the trustees could have demonstrated that they were entitled to relief on their negligence claims. Spinner v. Nutt, supra at 550. In additian, the c. 93A demand letters, which were attached to the complaint and “made a part” of the c. 93A claim, contained specific allegations of property damage that occurred because of the construction defects, including water damage to the units. We therefore vacate the dismissal of the negligence claims (Counts I and II).

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