Court upholds consumer-protection ruling against Fenway bar where patron fell down stairs and died

The Supreme Judicial Court ruled today that Our House East on Gainsborough Street engaged in "unfair or deceptive conduct" under the state's consumer-protection law by building an illegal and unsafe staircase down which Jacob Samuel Freeman fell to his death while talking on his cell phone in 2007.

However, the court sent the case back to a lower-court judge to reconsider the monetary awards, in particular, some $2.1 million in lawyers' fees.

A jury had ruled for the bar's owners on strict negligence grounds, saying that while the place violated state building codes, that didn't cause Freeman's death. The judge in the case, however, ruled that his death did violate the consumer-protection laws, and the state's highest court agreed:

The defendants' conduct in this case was unfair within the meaning of [the law]: the defendants consciously violated the building code for more than twenty years, thereby creating hazardous conditions in a place of public assembly where alcohol is served to commercial patrons. The potential for danger, and even death, was clear. ...

The defendants' conduct also may qualify as deceptive because if Jacob or other patrons had known of the highly dangerous conditions present at Our House East--conditions in clear violation of the building code--they very well may have taken their business elsewhere, or, in any event, Jacob may have decided not to take his telephone call in the alcove.

In its ruling, the court cataloged problems - and warnings about those problems - with the staircase:

Before Jacob's fall, on multiple occasions the kitchen manager had warned one of the trustees, Henry D. Vara, III, a manager and an owner of Our House East, that the stairs needed to be fixed or someone would get hurt. The kitchen manager also had informed management employees that she and a liquor distributor had both fallen on the stairs and that the staircase should be fixed.

According to the ruling, early on April 1, 2007, Freeman, a Northeastern student, moved to the back of Our House to try to find a quieter place for a phone conversation. Unfortunately for him, he wound up in front of some plastic strips, which failed to stop him when he fell backwards and crumpled down the stairs to the basement, suffering fatal brain injuries.

The court said the Our House's owners had managed to evade the need for inspections that might have forced repairs to the staircase:

The defendants had built the stairs leading from the first floor to the basement at Our House East in the early 1980's without obtaining necessary building permits and without complying with the building code, which required the staircase to be equipped with a self-closing "fire-rated" door and landing at the top of the stairs, compliant riser and tread dimensions with uniformity within limits set by the building code, and compliant hand rails on both sides of the staircase.

In 1984, Our House East expanded its operations into 54 Gainsborough Street, which had been a laundromat, without obtaining a "change in use" permit from the inspectional services department of Boston; in 1987, the restaurant expanded into the building at 50 Gainsborough Street, which had been a florist and beauty parlor, again without obtaining a change in use permit. The defendants thus evaded upgrade requirements, because in order to obtain change in use permits, the defendants would have had to bring the premises into compliance with the building code. The defendants again failed to acquire a building permit or to comply with the building code when they rebuilt the staircase to the basement in 1998. At all relevant times, the defendants knew that building permits and a change in use permit were required, as evidenced by the fact that the defendants filed, and then abandoned, multiple building permit and change in use permit applications.

• Complete ruling, Lisa KLAIRMONT & another, administrators, vs. GAINSBORO RESTAURANT, INC., and others