# Whelihan v. Markowski

> Massachusetts Appeals Court · August 25, 1994 · 37 Mass. App. Ct. 209

URL: https://www.frixlaw.com/law-library/cases/9721970

## Case

- **Full name:** Tracy Whelihan vs. Eugene Markowski & Another
- **Court:** Massachusetts Appeals Court
- **Decided:** August 25, 1994
- **Citations:** 37 Mass. App. Ct. 209; 638 N.E.2d 927; 1994 Mass. App. LEXIS 797
- **Precedential status:** Published
- **Opinion:** Concurring in part by Brown
- **Judges:** Brown, Perretta, Jacobs
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9721970

## How later opinions describe it (automated extraction)

- concluding that the prerequisite to suit under e. 93A, § 9, was met when the plaintiffs sent her demand to the defendants’ active counsel of record

## Opinion text

Brown, J.
(concurring in part and dissenting in part). Although I am in agreement, for the most part, with the majority’s opinion, I part company on the multiple damages issue. I do not think that on these facts the damages should be enhanced, let alone trebled. Granted, the owner’s building manager here had some maintenance experience and was more than a mere on-site representative, but, in my view, it is too great a stretch in these circumstances to elevate him to the *216 status of “a professional building manager” and one deemed to be fully cognizable with all State Building Code “requirements bearing an immediate relationship to the safety of those using the building,” thereby providing a basis for a wilful and knowing violation of c. 93A, rather than merely careless conduct. The majority posits liability on the theory of the evidence that the property manager “intentionally” put inappropriate windowpane glass in what he knew to be a “hazardous location,” the danger (i.e., “risk of physical harm”) of which he ignored by “choosing to remain uninformed about building code requirements.” All this is rather much and transforms routine negligence, for which the plaintiff is fully compensated, into a wilful act. I would have thought a wilful act meant something akin to knowing disregard. Let us not forget the observation of Holmes that “a dog distinguishes between being stumbled over and being kicked.” Holmes, The Common Law 3 (1881).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9721970. Public record. Not legal advice.