Anderson v. Fox Hill Village Homeowners Corp.

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” . . .

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.

The judge correctly ruled that the plaintiff was not an intended third-party beneficiary under the lease. . . .

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. . . . The intent must be clear and definite. . .

Under the lease the defendant assumed sole responsibility for operation and maintenance of a retirement complex. There is no indication, express or implied, that any obligations were imposed for the benefit of employees of the nursing facility. . . . In these circumstances the plaintiff is no more than an incidental beneficiary and cannot recover under the lease. . .

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. . . . 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. . . .

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.” . . . 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. . . . 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. . . . 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. . . . “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.” . . . This view is endorsed by a leading authority on tort law: “Tort obligations are in general obligations that are imposed by law on policy considerations to avoid some kind of loss to others. They are obligations imposed apart from and independent of promises made and therefore apart from any manifested intention of parties to a contract or other bargaining transaction. Therefore, if the alleged obligation to do or not to do something that was breached could not have existed but for a manifested intent, then contract law should be the only theory upon which liability would be imposed.” . . .

To conclude that tort liability exists solely because the defendant did not perform a contractual duty to remove snow and ice would give rise to a common law duty which we repeatedly have declined to impose on landowners. As we indicated in Sullivan v. Brookline, . . . quoting Aylward v. McCloskey, “under Massachusetts law, landowners are liable only for injuries caused by defects existing on their property and ... the law does not regard the natural accumulation of snow and ice as an actionable property defect, if it regards such weather conditions as a defect at all.”

Judgment affirmed.