Bernard v. Cameron and Colby Co. Inc.
| Decision Date | 15 April 1986 |
| Citation | 491 N.E.2d 604,397 Mass. 320 |
| Parties | , 63 A.L.R.4th 1015, 104 Lab.Cas. P 55,584, 2 IER Cases 678 Lynne A. BERNARD v. CAMERON AND COLBY CO. INC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Edward Greer, Cambridge (Edward L. Sweda, Jr., Boston, with him), for plaintiff.
John F. Kehoe (Gregory P. Hancock, Boston, with him), for defendant.
J. Cleve Livingston and Laurie E. Kermish, Boston, for Conservation Law Foundation of New England, Inc., amicus curiae, submitted a brief.
Before LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.
The plaintiff, Lynne A. Bernard, appeals from a summary judgment of the Superior Court. On January 11, 1982, the plaintiff filed a complaint against the defendant, Cameron and Colby Co. Inc., alleging that the defendant violated the terms of its contract with her, and inflicted emotional distress upon her. She sought damages in the amount of $56,152.64 and an order of reinstatement in her original position in a smoke-free work area. The plaintiff specifically claimed that she is allergic to tobacco smoke; that the defendant (for whom she worked as an independent contractor) provided her with a smoke-free work environment until March, 1981; and that the defendant, knowing of her allergy, assigned her to a work area in which smoking was permitted. The defendant counterclaimed for breach of contract when the plaintiff left her work assignment without notice. On June 7, 1984, the defendant filed a motion for partial summary judgment, which was allowed. Final judgment was entered after the defendant's counterclaim was dismissed without prejudice. The plaintiff appealed, and we transferred the case to this court on our own motion. 1 We affirm the judgment of the Superior Court.
1. Contract claims. The employment contract between the parties has no express provision requiring the defendant to provide a smoke-free environment. Thus, the plaintiff must show that is a requirement of the contract which is implied. (Emphasis added.) Dittemore v. Dickey, 249 Mass. 95, 104-105, 144 N.E. 57 (1924). See Spaulding v. Morse, 322 Mass. 149, 152-153, 76 N.E.2d 137 (1947), and cases cited. Compare LiDonni, Inc. v. Hart, 355 Mass. 580, 583, 246 N.E.2d 446 (1969).
The undisputed material facts before the motion judge demonstrated that there was no such implied term. The plaintiff relies on the fact that the resume she submitted to the defendant disclosed that she left one job because she had an allergy to tobacco smoke and dust, and that an allergist's letter was available upon request; upon the fact that she had a "Thank You For Not Smoking" sign on her desk before and at the time her contract with the defendant was executed; and upon the fact that up until the time she was moved to a larger work area where smoking was permitted, she was in a smoke-free work environment, specifically, a private office. All other facts related to events occurring after the contract was formed, and hence are not relevant.
These allegations are not sufficient to show that under her contract of employment the plaintiff was entitled to be provided with a smoke-free environment. There was nothing before the judge which would tend to show assent to such a term. The most that these allegations show, drawing inferences most favorable to the plaintiff, was that the plaintiff does not desire to work in a smoking environment, that in fact she was provided with a smoke-free environment for a time, and that the defendant knew of this preference. However, the plaintiff did not show that her preference was raised at the time the contract was entered into or implicitly agreed to by the defendant. Mere knowledge of her preference is not tantamount to mutual assent. The plaintiff failed to provide sufficient evidence that the implied term she seeks was "fixedly desired" by both parties.
2. Tort claims.
a. Duty to...
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