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:
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. Choate, Hall & Stewart v. SCA Servs., Inc., 378 Mass. 535, 545 (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. See Spinner v. Nutt, 417 Mass. 549, 555 (1994); Rae v. Air-Speed, Inc., 386 Mass. 187, 195 (1982). See also Restatement (Second) of Contracts § 302 (1981).
Under the lease the defendant assumed sole responsibility for operation and maintenance of a retirement complex.
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. See Sullivan v. Brook line, 416 Mass. 825, 827 (1994); Aylward v. McCloskey, 412 Mass. 77, 80 (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. See Falden v. Gordon, 333 Mass. 135, 137 (1955); Carey v. Malley, 327 Mass. 189, 193 (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
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 (1937). See Redgrave 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 144. 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." W. Prosser & W. Keeton, Torts § 92, at 656 (5th ed. 1984).
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