The American Tort Reform Foundation gave Massachusetts a “Dishonorable Mention” in the Foundation’s annual report on “judicial hellholes,” citing the Supreme Judicial Court’s opinion in Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165 (2013). This was a wrongful death action by the parents of a college student who, after a night of drinking, was found unconscious at the foot of a staircase in a bar/ restaurant. He died two days later.

Plaintiffs’ theory was that the student had walked from the main bar into a hallway leading to the rear door, seeking a quieter place to receive a call on his cell phone. Off the hall- way to the right was the kitchen, and on the left a staircase to the basement. The presence of the stairs was obscured by hanging vinyl strips. There was no door behind the vinyl strips. Plaintiffs’ contended the student had lost his balance and fallen down the stairs.

The complaint set forth counts for wrongful death and violation of the Consumer Protection Act, M.G.L. c. 93A. As to the latter count, plaintiffs alleged that the stairs as built and repaired failed to comply with the State Building Code, and that a violation of the Building Code constituted a violation of c. 93A. Plaintiffs relied on a regulation of the Attorney General that said failure to comply with any law or regulation intended to protect the public’s health, safety or welfare constituted a violation of c. 93A.

Concluding that the condition of the staircase was not a cause of the student’s death, the jury returned a defense verdict on the wrongful death count. The trial judge re- served and decided plaintiffs’ c. 93A claim on her own. Disregarding the jury finding of no causation, the judge concluded the stairs were the cause of death and found the bar liable. She awarded $2.25 million in compensatory dam- ages. Finding a “willful” violation of c. 93A, she tripled that amount to bring the award up to $6.7 million for a “willful” violation of c. 93A, and added $2.3 million in attorneys’ fees.

On appeal, the SJC held the trial judge was not bound by the jury’s findings and had decided correctly that a Building Code violation could also be a violation of c. 93A.

The American Tort Reform Foundation was troubled that a judge could (1) disregard the jury findings and (2) conclude that, because the stairway had been “constructed decades earlier without a permit and was not up to code, the bar had somehow willfully committed an unfair business practice.”