Davis v. R C & Sons Paving Inc.

• Decision Date: 11 August 2011
• Citation: 2011 ME 88,26 A.3d 787
• Court: Maine Supreme Court
• Parties: Marilyn R. DAVISv.R C & SONS PAVING, INC.

26 A.3d 787

2011 ME 88

Marilyn R. DAVIS

v.R C & SONS PAVING, INC.

Supreme Judicial Court of Maine.

Argued: May 10, 2011.Decided: Aug. 11, 2011.

Sheldon J. Tepler, Esq. (orally), Christian J. Lewis, Esq., Hardy, Wolf & Downing, P.A., Lewiston, ME, for Marilyn Davis.Jonathan W. Brogan, Esq. (orally), Kristina M. Balbo, Esq., Norman, Hanson & DeTroy, LLC, Portland, ME, for R C & Son Paving Company.Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.Majority: SAUFLEY, C.J., and ALEXANDER, LEVY, MEAD, and GORMAN, JJ.Concurrence/Dissent: SILVER, and JABAR, JJ.GORMAN, J.

[¶ 1] Marilyn R. Davis appeals from a summary judgment in favor of R C & Sons Paving, Inc. entered in the Superior Court (Androscoggin County, MG Kennedy, J.) on Davis's complaint seeking relief for injuries she sustained when she fell in her employer's parking lot, which R C & Sons had agreed to plow and sand. On appeal, Davis contends that summary judgment was improper because the court erred as a matter of law in determining that R C & Sons owed her no duty of care. We disagree with her contention and affirm the judgment.

I. BACKGROUND

[¶ 2] The following facts, viewed in the light most favorable to Marilyn R. Davis as the nonmoving party, are undisputed and established in the summary judgment record. See Bonney v. Stephens Mem'l Hosp., 2011 ME 46, ¶ 4, 17 A.3d 123, 125.

[¶ 3] On the morning of February 23, 2009, Davis, an employee of St. Mary's Regional Medical Center (SMRMC), was injured when she slipped and fell in a parking lot at SMRMC. SMRMC had contracted with R C & Sons to plow and sand all of its parking areas, and to clean and salt all of its sidewalks. At the time Davis was injured, R C & Sons was still plowing the parking lot but had not sanded it.

[¶ 4] In January 2010, Davis filed a two-count complaint against R C & Sons in the Superior Court.¹ In the first count, Davis alleged that, as a “direct and proximate result” of R C & Sons' negligence, she had “slipped on negligently treated or untreated ice,” and in the second count she alleged that R C & Sons breached its “duty of exercising reasonable care” to “provide reasonably safe premises.”

[¶ 5] R C & Sons subsequently filed a motion for summary judgment on Davis's claims, arguing that it did not owe Davis a duty of care. In its supporting memorandum of law, R C & Sons stated:

Although it is not entirely clear from the language of the Complaint, [Davis] appears to be alleging negligence against [R C & Sons] on the basis of premises liability or as a third party beneficiary asserting her rights under the Agreement entered into between [R C & Sons] and St. Mary's.

R C & Sons, referencing section 302 of the Restatement (Second) of Contracts (1981), asserted that it did not owe Davis a duty because she was not a “third party beneficiary” or an “intended beneficiary” of the snow removal agreement.

[¶ 6] In response, Davis argued that R C & Sons did owe her a duty of care as an intended beneficiary pursuant to section 302 of the Restatement. Davis also asserted that R C & Sons owed her a duty because it negligently created a dangerous condition in the parking lot.²

[¶ 7] Following a hearing, the court granted a summary judgment in favor of R C & Sons. The court first noted that if R C & Sons, as a non-possessor of the land, had negligently created a dangerous condition on the land, it could be held liable for the reasonably foreseeable harms caused by its negligence. It held, however, that because there was no evidence that R C & Sons had affirmatively created the dangerous condition that led to Davis's injuries, i.e., the snow and ice that had accumulated in the parking lot, R C & Sons had no duty to protect Davis from that dangerous condition.

[¶ 8] The court also concluded, based on section 302 of the Restatement (Second) of Contracts, that “Davis failed to demonstrate that there is any genuine issue of fact with regard to her third-party beneficiary claim.” Davis appeals the court's entry of a summary judgment.

II. DISCUSSION

[¶ 9] We review a grant of summary judgment de novo, viewing the evidence in the light “most favorable to the nonprevailing party to determine whether the parties' statements of material facts and the record evidence to which the statements refer demonstrate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Kurtz & Perry, P.A. v. Emerson, 2010 ME 107, ¶ 15, 8 A.3d 677, 680 (quotation marks omitted).

[¶ 10] To survive a defendant's motion for a summary judgment in a negligence action, a plaintiff “must establish a prima facie case for each of the four elements of negligence: duty, breach, causation, and damages.” Quirion v. Geroux, 2008 ME 41, ¶ 9, 942 A.2d 670, 673 (quotation marks omitted); cf. Ouelette v. Miller, 134 Me. 162, 166, 183 A. 341, 343 (1936) (“Actionable negligence arises from neglect to perform a legal duty.” (quotation marks omitted)).

[¶ 11] Davis argues that the court erred in granting a summary judgment in favor of R C & Sons based on its determination that no tort duty existed. Davis contends that R C & Sons owed her a duty of care because (1) she was a third-party beneficiary of the contract between SMRMC and R C & Sons, and (2) R C & Sons negligently created a dangerous condition by failing to sand the parking lot after plowing it. Whether a plaintiff is owed a duty of care and the scope of that duty are questions of law that we review de novo. See Gniadek v. Camp Sunshine at Sebago Lake, Inc., 2011 ME 11, ¶ 17, 11 A.3d 308, 313; Belyea v. Shiretown Motor Inn, LP, 2010 ME 75, ¶ 6, 2 A.3d 276, 278.

A. Davis's Claim of Duty Arising From Third–Party Beneficiary Status

[¶ 12] Section 302 of the Restatement (Second) of Contracts provides:

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either

(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or

(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

We have frequently applied this section to determine whether a plaintiff could assert a contract claim or enforce a contract as a third-party beneficiary. See Fleet Bank of Me. v. Harriman, 1998 ME 275, ¶¶ 6–10, 721 A.2d 658, 660–61; Devine v. Roche Biomedical Labs. ( Devine II ), 659 A.2d 868, 870–71 (Me.1995); F.O. Bailey Co. v. Ledgewood, Inc., 603 A.2d 466, 468–69 (Me.1992); see also Perkins v. Blake, 2004 ME 86, ¶¶ 8–9, 853 A.2d 752, 754–55; Stull v. First Am. Title Ins. Co., 2000 ME 21, ¶ 17, 745 A.2d 975, 981 (“Third parties to contracts are strictly limited in their ability to maintain an action under contract law. A third party harmed by a breach may only sue for breach of contract if the contracting parties intended that the third party have an enforceable right.” (citation omitted)).

[¶ 13] Citing our decisions in Devine II and Denman v. Peoples Heritage Bank, Inc., 1998 ME 12, 704 A.2d 411, however, Davis argues that her status as an intended third-party beneficiary of the snow removal agreement between her employer and R C & Sons gives rise to a tort duty of care. Given what appears to be confusion over some language from our decisions in Devine II and Denman, we take this opportunity to clarify that, in each case, we referred to section 302 of the Restatement (Second) of Contracts when discussing contract claims, rather than tort claims.

[¶ 14] In Devine II, the plaintiff asserted a breach of contract claim against two laboratories, alleging that he was a third-party beneficiary of the contract between one of the laboratories and his former employer, and arguing that his employment had been terminated as a result of what he claimed was a falsely positive drug test. 659 A.2d at 869; see also Devine v. Roche Biomedical Labs., Inc. ( Devine I ), 637 A.2d 441, 443–45 (Me.1994). Applying section 302 of the Restatement (Second) of Contracts, we concluded that the plaintiff could not proceed as a third-party beneficiary on his breach of contract claim. Devine II, 659 A.2d at 870–71.

[¶ 15] Denman involved a pedestrian who slipped on snow and ice on a public sidewalk that abutted property owned by a bank. 1998 ME 12, ¶ 2, 704 A.2d at 413. Pursuant to a municipal ordinance, the bank was responsible for removing snow and ice from the public sidewalk, and it hired a maintenance company to perform those responsibilities. Id. On the day the plaintiff was injured, the maintenance company had not shoveled or sanded the sidewalk. Id. In addition to the negligence claims she alleged against the bank and the maintenance company, the plaintiff asserted a breach of contract claim against the maintenance company, claiming that she was a third-party beneficiary of the maintenance contract between the company and the bank. Id. ¶¶ 7–10, 704 A.2d at 414–15. We identified section 302 of the Restatement as “[t]he controlling law” to determine whether the plaintiff could proceed as a third-party beneficiary on her contract claim against the maintenance company, and held that she failed to generate a genuine issue of fact relating to whether the bank intended that she receive enforceable rights as an intended beneficiary of the maintenance contract pursuant to section 302 of the Restatement.³ Id. ¶¶ 8–9, 704 A.2d at 414–15.

[¶ 16] A clear distinction must be drawn “between actions which sound in contract and those which sound in tort.” Adams v. Buffalo Forge Co., 443 A.2d 932, 938 (Me.1982) (noting that tort obligations and contractual obligations “create separate and distinct predicates of liability”). In contract actions, “[c]ontractual recovery is predicated...