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Denman v. Peoples Heritage
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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
Decision:1998 ME 12
Docket:Cum-97-265
Submitted
on Briefs:November 12, 1997
Decided:January 15, 1998


Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, and LIPEZ, JJ.




ROSE MARY DENMAN v. PEOPLES HERITAGE BANK, INC. and JACK FOX d/b/a FOX ENTERPRISES

WATHEN, C.J.


	[¶1]  Plaintiff Rose Mary Denman appeals from summary judgments
entered in the Superior Court (Cumberland County, Brennan, J.) in favor of
defendants Peoples Heritage Bank, Inc. ("Peoples") and Jack Fox, d/b/a Fox
Enterprises ("Fox").  Plaintiff argues on appeal that the court erred in
concluding (1) that defendants owed no duty of care to her because they
were not in possession of the public sidewalk on which she fell, and (2) that
she was not a third party beneficiary to the maintenance contract between
Peoples and Fox.  Plaintiff also argues that the court erred in failing to find a
genuine issue of material fact whether defendants assumed a duty of care by
undertaking to clear the public sidewalk or by creating a hazard thereon. 
Finding no error, we affirm the judgments.
	[¶2]  The undisputed facts may be summarized briefly as follows:
Plaintiff was injured on January 23, 1994, when she slipped on snow and ice
on a public sidewalk abutting the property of Peoples located on Forest
Avenue in Portland.  By virtue of a municipal ordinance, Peoples was
responsible for snow and ice removal from the public sidewalk.  Pursuant to
a contract with Peoples, Fox maintained the building, and shoveled and
cleaned the sidewalk.  On the day in question, Fox had not shoveled or
sanded before plaintiff's fall.
	[¶3] We review the Superior Court's "entry of summary judgment for
errors of law, viewing the evidence in the light most favorable to the party
against whom the judgment was entered."  Rodrigue v. Rodrigue, 1997 ME
99, ¶8, 694 A.2d 924, 926 (citation omitted).   We will uphold the summary
judgments if the evidence demonstrates that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a
matter of law.  Id.
	[¶4] Plaintiff first argues that there is a genuine issue of material fact
whether defendants were "possessors" of the sidewalk in front of the
building owned by Peoples and managed by Fox.  "'Under Maine law a
possessor of land owes a duty to use reasonable care to all persons lawfully
on the premises.'"  Quadrino v. Bar Harbor Banking & Trust, 588 A.2d 303,
304 (Me. 1991) (quoting Erickson v. Brennan, 513 A.2d 288, 289 (Me.
1986)). The court was required to determine whether defendants possessed
the public sidewalk at the time of plaintiff's injury.  Id.  Plaintiff is correct
that possession does not require actual title or ownership.  A possessor of
land is "one who, by occupancy, manifests an intent to control the land." 
Quadrino, 588 A.2d at 305 (citations omitted).  Whether a person owes a
duty of care to another is a question of law.  Quadrino, 588 A.2d at 304. 
Whether a person manifests an intention to control the land, however, is an
issue of fact.   See Hankard v. Beal, 543 A.2d 1376 (Me. 1988).
	[¶5] Because defendants maintained the public sidewalk, plaintiff
argues that a genuine issue of material fact exists concerning their
possession of the sidewalk.  We have previously stated that the owner of land
abutting a curb on which plaintiff tripped was not a possessor of the land
and did not owe a duty of care.  Quadrino, 588 A.2d at 305.  Plaintiff's
reliance on Pelletier v. Fort Kent Golf Club, 662 A.2d 220 (Me. 1995) is
misplaced.  In Pelletier we held that the owner of a golf course over which
railroad tracks crossed possessed the tracks because, "unlike the defendant
in Quadrino, the Club manifested an intention to have control over the land
on which the defect was located." Id. At 222.  In that case, the club
instituted a "free lift" rule allowing a golfer to pick up his ball and place it on
the other side of the track if the ball landed near the track in an area
designated by red markers, and invited the golfers to use the course which
included traversing the tracks.  Id. at 221-22.  In the present case, however,
there is no evidence to support a finding that defendants intended to
control the public sidewalk.  To the contrary, defendants' actions were
involuntary and undertaken in compliance with applicable law.  
	[¶6]  As an abutting landowner, Peoples was required to remove snow
and ice from the public sidewalk by Portland City Ordinance.{1}  We have
previously held that any failure to remove snow and ice in violation of an
ordinance does not create a cause of action in favor of pedestrians injured
thereby. Ouelette v. Miller, 134 Me. 162, 183 A. 341 (1936).  Our opinion in
Ouelette was based on the principle that: 

defendants, as owners and occupants of the land and building
abutting upon [the] Street, are not responsible to individuals for
injuries resulting to them from defects and want of repair in the
sidewalk, or by means of snow and ice accumulated by natural
causes thereon, although, by ordinances of the city, it is made
the duty of abutters, under prescribed penalties, to keep the
sidewalks adjoining their estates in good repair, and seasonably
to remove all snow and ice therefrom.  Such ordinances are
valid, and the work which is enforced upon them relieves, to the
extent of its cost or value, the city from charges which otherwise
it would be necessarily, in discharge of its municipal duties,
subjected to.  

Ouelette at 166 (quoting Kirby v. Boylston Market Association, 80 Mass.
249).  We held that the defendant "owed no duty to the plaintiff to keep the
sidewalk clear of ice and snow coming thereon from natural causes, or to
guard against the risk of accident by scattering ashes or using other like
precautions, whether or not any public duty was imposed upon him by the
ordinances of the city."  Id. (quoting Dahlin v. Walsh, 192 Mass. 163, 77 N.E.
830).
	[¶7]  Therefore, in the present case, the public duty imposed on
defendants by municipal ordinance does not give rise to a duty enforceable
by plaintiff.  The fact that Peoples hired Fox to remove snow and ice in
compliance with the ordinance does not establish a genuine issue of fact
concerning an intention to control and possess the public sidewalk.  The
court did not err in finding as a matter of law that defendants owed plaintiff
no duty of care.
	[¶8]  Plaintiff next contends that she has stated a claim against Fox as
a third party beneficiary of the maintenance contract between Peoples and
Fox.   She argues that the contract was intended to benefit pedestrians who
were using the public sidewalk to patronize Peoples' business establishment. 
The controlling law is set forth in the Restatement (Second) of Contracts as
follows:

(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.

Restatement (Second) of Contracts § 302 (1981).

"An incidental beneficiary acquires by virtue of the promise no right against
the promisor or the promisee."  Restatement (Second) of Contracts § 315
(1981).  
	[¶9]  In order for plaintiff to withstand a motion for summary
judgment and proceed as a third party beneficiary, she was required to
generate a genuine issue of material fact whether Peoples intended that she
receive an enforceable benefit under the maintenance contract.  Devine v.
Roche Biomedical Laboratories, 659 A.2d 868, 870 (Me. 1995) (citing F. O.
Bailey Company, Inc. v. Ledgewood, Inc., 603 A.2d 466, 468 (Me. 1992)).  "It
is not enough that [plaintiff] benefitted or could have benefitted from the
performance of the contract.  The intent must be clear and definite,
whether it was expressed in the contract itself or in the circumstances
surrounding its execution." Id.  There is no language in the contract before
us to generate an issue of Peoples' intention to create in plaintiff enforceable
rights as an intended beneficiary.  The contract between Peoples and Fox
provides simply for Fox to manage and maintain the building.  Plaintiff
offered no evidence of any circumstance attending the execution of the
contract that would support finding a clear intention to create in plaintiff
enforceable rights as an intended beneficiary.  The Superior Court did not
err in finding that plaintiff failed to establish a genuine issue of fact with
respect to her third party beneficiary claim.
	[¶10] Plaintiff argues further that she established separate theories of
liability on the basis that defendants actually assumed the duty of care when
they affirmatively arranged for and maintained the public sidewalk, and on
the basis that they created a hazard.  With regard to the first contention, we
need only note once again that defendants did not voluntarily undertake to
remove the snow and ice; they were under a legal obligation to clear the
public sidewalk, and no duty arises from acts performed in compliance with
the law. 
	[¶11]  The record reflects that Fox had not performed any
maintenance, shoveling or sanding services on the day of the incident and
does not suggest that any prior affirmative acts of defendants created a
hazard.  In opposing defendants' motions for summary judgment, plaintiff
offered no affidavits, depositions, answers to interrogatories, or admissions,
pursuant to M.R. Civ. P. 56(c) and 56(e).  Plaintiff's attempt to create a
genuine issue of fact concerning the condition of the sidewalk with
statements of an alleged witness to the incident is of no effect.  The
unsworn and unsigned statement of the witness is not in compliance with
the requirements of Rule 56.
	[¶12]  Finally, we do not reach plaintiff's argument that we apply the
standard of care set forth in Isaacson v. Husson College, 297 A.2d 98 (Me.
1972) to this case.  Because the Superior Court correctly concluded that
defendants owe plaintiff no duty of care, the degree of care need not be
addressed.
	The entry is:
					Judgments affirmed.

Attorney for Plaintiff: Paul F. Macri, Esq. (Orally) BERMAN & SIMMONS, P.A. 129 Lisbon Street P. O. Box 96l Lewiston, Maine 04243-096l Attorneys for Defendants: Thomas S. Marjerison, Esq. (Orally) NORMAN, HANSON & DeTROY 4l5 Congress Street, P. O. Box 4600 Portland, Maine 04ll2-4600 (for Fox Enterprises) Noah D. Wuesthoff, Esq. (Orally) MONAGHAN, LEAHY, HOCHADEL, & LIBBY 95 Exchange Street, P. O. Box 7046 Portland, Maine 04ll2-7046 (for Peoples Heritage)
FOOTNOTES******************************** {1} The ordinance requiring snow removal provides in part: In the business-pedestrian district, the owner, manager or any person having responsibility for any building or lot of land which abuts any street where there is a sidewalk shall remove snow from the entire sidewalk within twelve (12) hours after snow has ceased to fall. Portland City Ordinance § 25-173 (Ord. No. 132A-93, 11-15-93). The ordinance requiring ice removal provides in part: In the business-pedestrian district, whenever the sidewalk or any part thereof adjoining any building or lot of land on any street shall be encumbered with ice for six (6) hours or more during the daytime, it shall be the duty of the owner and any person having the responsibility for such building or lot to cause such sidewalk to be made safe and convenient by removing the ice therefrom or by covering the same with sand or some other suitable substance. Portland City Ordinance § 25-174 (Ord. No. 132A-93, 11-15-93).