Davis v. R C & Sons Paving, Inc.Davis v. R C & Sons Paving, Inc.
Lead Opinion
Mаjority: SAUFLEY, C.J., and ALEXANDER, LEVY, MEAD, and GORMAN, JJ.
Concurrence/Dissent: SILVER, and JABAR, JJ.
[¶ 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.,
[¶ 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
[¶ 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:
Althоugh 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 Dаvis 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.
[¶ 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,
[¶ 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.,
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 tо 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,
[¶ 13] Citing our decisions in Devine II and Denman v. Peoples Heritage Bank, Inc.,
[¶ 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 аrguing that his employment had been terminated as a result of
[¶ 15] Denman involved a pedestrian who slipped on snow and ice on a public sidewalk that аbutted property owned by a bank.
[¶ 16] A clear distinction must be drawn “between actions which sound in contract and those which sound in tort.” Adams v. Buffalo Forge Co.,
[I]n tort, liability is grounded upon the status relationship between the parties. The status relationship which constitutes the predicate for tort recovery is entirely independent from and, indeed, foreign to any notions of the consensual features which form the basis of contractual liability.
Id. (citation omitted); see also McNally v. Nicholson Mfg. Co.,
[¶ 17] Here, Davis did not allege a contract claim against R C & Sons in her complaint, and she is not seeking to enforce the snow removal agreement between R C & Sons and SMRMC. As a
B. Davis’s Claim of Duty Arising From Negligent Creation of a Dangerous Condition
[¶ 18] Davis also contends that a duty of care arose because R C & Sons negligently created “the dangerous condition of untreated ice, covered by a thin skim of obscuring snow” by failing to treat the ice after plowing the area.
[¶ 19] In 1997, we recognized that a non-possessor of land “who negligently creates a dangerous condition on the land may be liable for reasonably foreseeable harms.” Colvin v. A R Cable Services-ME, Inc.,
[¶ 20] Similarly, in 2008, we concluded that a non-possessor defendant who removed and reattached awnings to a hotel did owe a duty to the plaintiff and other hotel patrons “to not cause an unreasonably dangerous condition through his work on the awnings.” Quirion,
[¶21] In this case, the question presented is whether R C & Sons, as a non-possessor of land, created a dangerous condition by failing to sand the SMRMC parking lot after рlowing it and therefore owed Davis a duty of care. Although it is clear that a non-possessor who negligently creates a dangerous hazard may be liable for reasonably foreseeable harms, in cases involving injuries sustained as a result of the annual risks posed by winter weather, it is particularly important to consider whether the dangerous hazаrd was created by the non-possessor’s actions or by the natural accumulation of snow or ice. In determining the existence and scope of a duty in cases involving injuries sustained as a result of snow and ice conditions, we are informed by the annual risks created by the relatively harsh winters in Maine and recognize that requiring landowners or non-possessors “to fully protect against hazards created by snow and ice [is] sim
[¶22] Here, the “precipitating cause” of the hazardous conditions in the parking lot was weather. Id. ¶ 31,
Judgment affirmed.
Notes
. We presume that 39-A M.R.S. § 104 (2010) bars Davis from bringing a negligence action against her employer, the owner of the property.
. Davis alleged in Count II of her complaint that R C & Sons breached its "duty to provide reasonably safe premises,” which is the duty owed by an owner or occupier of land to those lawfully on the property. See Belyea v. Shiretown Motor Inn, LP,
. We also affirmed the court's grant of a summary judgment in favor of the bank and the maintenance company on the plaintiff's negligence claims because neither defendant "possessed” thе public sidewalk simply by maintaining it, and there was no genuine issue of material fact suggesting that any affirmative act by either defendant had created a hazard. Denman v. Peoples Heritage Bank, Inc.,
. In any event, the record clearly demonstrates that Davis is not an intended third-party beneficiary of the agreement between SMRMC and R C & Sons for the following reasons: first, there is no language in the agreement demonstrating an intention to give employees of SMRMC enforceable rights in the agreement as intended beneficiaries: and, second, there is no evidence of circumstances indicating “with clarity and definiteness” that SMRMC intended to benefit its employees. Devine v. Roche Biomedical Labs. (Devine II),
. We have previously acknowledged that "an individual's common law duty will extend only so far in negligence actions related to winter weather, and we have on multiple occasions defined, limited, [or] restricted this duty.” Alexander v. Mitchell,
Concurrence in Part
with whom JABAR, J., joins, concurring in pаrt and dissenting in part.
[¶ 23] I concur with the majority as to Marilyn R. Davis’s claim of third-party beneficiary status and further agree this cause of action should be analyzed in tort rather than contract. Majority Opinion ¶¶ 11-18. However, I respectfully dissent from the remainder of the majority’s opinion. I would hold that because the hospital parking lot was used around the clоck, R C & Sons had a duty to remove snow and ice, similar to the duty we held that the defendant landowner had in Budzko v. One City Ctr. Assocs. Ltd. P’ship,
[¶ 24] It makes no sense to remove any legal duty at precisely the moment a snow and ice removal business begins to respond to the triggering storm, simply because the business had no hand in causing the storm. I would hold that R C & Sons had a duty “to reasonably respond to a foreseeable danger posed to ... invitees by a continuing snow or ice storm.” Id. This duty is consistent with that expressed in section 324A of the Restatement (Second) of Torts (1965), which states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered becаuse of reliance of the other or the third person upon the undertaking.
[¶ 25] We have held that if a duty exists, “the question of whether there was a breach of the standard of care would ordinarily be a question for a fact-finder, not susceptible” to summary judgment. Alexander v. Mitchell,