Matyas v. Suburban Trust Co.

Digges, J., delivered the opinion of the Court. On the 4th day of December, 1967, the appellant Ludvik A. Matyas was walking to the branch office of the Suburban Trust Company, located in a shopping center in College Park, Maryland, for the purpose of cashing a check. At the time there was an accumulation of snow of some four days standing. The appellant was on a public sidewalk abutting the north side of the bank as he approached the shopping center property.

He stepped over a snowdrift, slipped on an unseen piece of ice, and was ³⁴¹ injured. The sidewalk, which was part of the College Park street system, had not been cleared on the day of his fall, and had never in the past been cleared of snow or ice by Samuel Rosenfeld (the lessor of the shopping center), Suburban Trust Company, or the Town of College Park. There was no town ordinance requiring property owners to keep public sidewalks abutting their property free of snow and ice. However, there was a lease agreement in effect between Suburban Trust Company and Samuel J. Rosenfeld which provided “[t]hat he [Suburban Trust] will keep the sidewalks immediately abutting said premises free from obstructions of all nature, properly swept and snow and ice removed therefrom.” On the basis of these undisputed facts the appellant filed an action in tort and not in contract against Suburban Trust, which in turn brought its lessor Samuel J. Rosenfeld into the case as a third party defendant.

On the motion of the defendants, summary judgment was granted in their behalf. The plaintiff has appealed only as to the defendant Suburban Trust Company. The peculiar facts of this case and the three-pronged contention of plaintiff reach the outer limits of tort liability to third persons, based on a contract involving the maintenance of public land abutting leased premises. The plaintiff contends 1) that the obligation to clear “the sidewalks immediately abutting the premises” includes both the sidewalks within the confines of the shopping center and those public walks outside of it.

Moreover, he asserts 2) that the nonperformance of this contractual duty extends in tort to third persons generally, and certainly to a customer approaching the bank with checkbook in hand. He contends 3) that he is a third party beneficiary of this lease provision. The trial court, however, did not decide these last two questions, since it ruled that the lease provision was clearly limited to the land over which the lessor had control. We do not think this conclusion can be reached without testimony, for we detect a lurking ambiguity in the ³⁴² phrase “the sidewalks immediately abutting said premises.” This phrase, even when read with other descriptive provisions of the contract, neither includes nor excludes abutting public sidewalks, and it is entirely reasonable to think that the lessor and lessee may have intended, for the benefit of their customers, to keep a public sidewalk leading into their shopping center free of ice and snow.

We do agree, nevertheless, that the summary judgment should have been granted. Even assuming that clearing the public sidewalk was part of the obligation of this lease, we find that the plaintiff, because of the place of his fall, cannot recover damages in tort on the basis of this contract for the injuries he sustained. In the absence of any common law or statutory duty to keep abutting public sidewalks free of snow and ice, we will not impose tort liability on the basis of a contractual obligation that was never undertaken. Since we are not confronted here with a snow removal statute we need not consider the possibility of positing tort liability on the basis of a statutory mandate.

Our inquiry, rather, must be directed to various forms of common law duty arising either from an affirmative requirement, in the absence of fault, to clear snow and ice from abutting public sidewalks, or from a gratuitous or contractual undertaking which was actually begun but negligently performed, or, as is the case here, a complete failure to initiate performance of a purely contractual duty. In New Highland v. Fries, 246 Md. 597, 601 , 229 A. 2d 89 (1967), we reiterated our often repeated