Anderson v. Fox Hill Village Homeowners Corp.

• Decision Date: 06 March 1997
• Citation: 424 Mass. 365,676 N.E.2d 821
• Parties: Patricia ANDERSON v. FOX HILL VILLAGE HOMEOWNERS CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 821

676 N.E.2d 821

424 Mass. 365

Patricia ANDERSON v.FOX HILL VILLAGE HOMEOWNERS CORPORATION.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 4, 1996.

Decided March 6, 1997.

Matthew E. Krevat(Andrew W. Pasquina with him), Salem, for plaintiff.

Terri Lee Carabillo for defendant.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and MARSHALL, JJ.

LYNCH, Justice.

The plaintiff appeals from summary judgment for the defendant entered in her claim for damages arising from a slip and fall caused by an icy condition on property under the control of the defendant.We transferred the case here on our own motion and now affirm the judgment.

The following facts are not in dispute for the purposes of summary judgment.The defendant is a tenant of property used as a retirement community in Westwood.Its lease states in part:

"Tenant agrees to be solely responsible for maintaining the Premises and the Improvements and each and every part thereof in good condition throughout the term of this Lease, reasonable wear and use only excepted and agrees without limitation to: ... (iv) promptly remove snow and ice from all driveways and walkways "(emphasis added).

The plaintiff worked at Clark House, a skilled nursing facility, located on the premises.On December 9, 1990, while getting out of her automobile, she slipped and fell on a patch of ice in the Clark House parking lot.The defendant did nothing to remove the ice prior to that morning.

On appeal the plaintiff claims that she was entitled to recover on two theories.First, the plaintiff argues that she was an intended third-party beneficiary of the lease.Alternatively, the plaintiff argues that the defendant assumed a duty greater than that imposed under tort principles to remove the snow and ice promptly, and negligently failed to do so.¹

The judge correctly ruled that the plaintiff was not an intended third-party beneficiary under the lease.Choate, Hall & Stewart v. SCA Servs., Inc., 378 Mass. 535, 545, 392 N.E.2d 1045(1979).

In order to prevail under this theory the plaintiff must show that the defendant and the lessor intended to give her the benefit of the promised performance.SeeSpinner v. Nutt, 417 Mass. 549, 555, 631 N.E.2d 542(1994);Rae v. Air-Speed, Inc., 386 Mass. 187, 195, 435 N.E.2d 628(1982).See alsoRestatement (Second) of Contracts§ 302(1981).²We look at the language and circumstances of the contract for indicia of intention.Choate, Hall & Stewart v. SCA Servs., Inc., supra at 545-547, 392 N.E.2d 1045.The intent must be clear and definite.SeeHarvard Law Sch. Coalition for Civil Rights v. President & Fellows of Harvard College, 413 Mass. 66, 71, 595 N.E.2d 316(1992);Plymouth Hous. Auth. v. Plymouth, 401 Mass. 503, 505, 517 N.E.2d 470(1988).

Under the lease the defendant assumed sole responsibility for operation and maintenance of a retirement complex.³There is no indication, express or implied, that any obligations were imposed for the benefit of employees of the nursing facility.CompareRae v. Air-Speed, Inc., supra at 194-195, 435 N.E.2d 628(plaintiff and her decedent intended beneficiary of contract between employer and insurer to obtain insurance);Choate, Hall & Stewart v. SCA Servs., Inc., supra at 546-547, 392 N.E.2d 1045(named creditor intended beneficiary of contract with indemnity clause).In these circumstancesthe plaintiff is no more than an incidental beneficiary and cannot recover under the lease.SeeHarvard Law Sch. Coalition for Civil Rights v. President & Fellows of Harvard College, supra at 71, 595 N.E.2d 316.

Neither can the plaintiff recover in tort.As a general rule, there is no duty by a landowner to remove a natural accumulation of snow or ice.SeeSullivan v. Brookline, 416 Mass. 825, 827, 626 N.E.2d 870(1994);Aylward v. McCloskey, 412 Mass. 77, 80, 587 N.E.2d 228(1992).However, the plaintiff argues that the defendant assumed a greater duty than that imposed under the common law because the defendant agreed "promptly [to] remove snow and ice from all driveways and walkways."

We have held that a landlord, who agrees in a lease to remove snow and ice and negligently fails to perform that duty, may be liable to his tenant.SeeFalden v. Gordon, 333 Mass. 135, 137, 128 N.E.2d 778(1955);Carey v. Malley, 327 Mass. 189, 193, 97 N.E.2d 645(1951).

We have also concluded that one who assumes a duty under contract "is liable to third persons not parties to the contract who are foreseeably exposed to danger and injured as a result of its negligent failure to carry out that obligation."Parent v. Stone & Webster Eng'g Corp., 408 Mass. 108, 114, 556 N.E.2d 1009(1990), quotingBanaghan v. Dewey, 340 Mass. 73, 80, 162 N.E.2d 807(1959).SeeRestatement (Second) of Torts§ 324A(1965).Thus, a defendant who contracted to design and build an electric power plant was liable to a utility company employee injured as a result of the defendant's negligent performance of the contract.Parent v. Stone & Webster Eng'g Corp., supra at 114-115, 556 N.E.2d 1009.Similarly, a defendant who agreed to maintain an elevator in a safe condition was liable to third persons injured as a result of the negligent failure to carry out that obligation.Banaghan v. Dewey, supra.In those cases, the contract created a relationship between the defendant and third parties, by reason of which the law recognized a duty of reasonable care in the performance of the obligation, that supported a tort action.

However, failure to perform a contractual obligation is not a tort in the absence of a duty to act apart from the promise made.Abrams v. Factory Mut. Liab. Ins. Co., 298 Mass. 141, 144, 10 N.E.2d 82(1937).SeeRedgrave v. Boston Symphony Orchestra, Inc., 557 F.Supp. 230, 238(D.Mass.1983)("a breach of contract is not, standing alone, a tort as well")."Although the duty arises out of the contract and is measured by its terms, negligence in the manner of performing that duty as distinguished from mere failure to perform it, causing damage, is a tort."Abrams v. Factory Mut. Liab. Ins. Co., supra at...