Filed: Jul. 30, 2012
Latest Update: Mar. 26, 2017
Summary: 1, For clarity, we will refer to both AMI and Penske as, Penske, because that company was the tenant under the lease at, the time of Fernandes's injury.truck maintenance and repairs at the Taunton facility.district court alleging negligence against AGAR.-5-, summary judgment.
United States Court of Appeals
For the First Circuit
No. 11-1772
LOUIS FERNANDES,
Plaintiff, Appellant,
v.
AGAR SUPPLY COMPANY, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
J. Michael Conley, with whom Kenney & Conley, P.C. was on
brief, for appellant.
Joseph T. Black, with whom Law Offices of Brown & Black was on
brief, for appellee.
July 30, 2012
LYNCH, Chief Judge. In this personal injury action,
Louis Fernandes sued AGAR Supply Company, Inc., for negligence in
federal district court under diversity jurisdiction. Fernandes, a
resident of Rhode Island, injured his back when he stepped into a
hole in the floor of a tire "shed" which was on property leased by
AGAR, a Massachusetts corporation, to Fernandes's employer, Penske
Truck Leasing. Whatever remedies Fernandes may have against
Penske, he sued AGAR on the theory that it owed him a duty of care
to maintain and repair the tire "shed" under the lease between AGAR
and Penske. The district court granted summary judgment to AGAR on
the duty of care issue under Massachusetts law, relying on Humphrey
v. Byron, 850 N.E.2d 1044 (Mass. 2006). See Fernandes v. AGAR
Supply Co., Inc., No. 09-10930,
2011 WL 2266537 (D. Mass. June 7,
2011). We affirm.
I.
We view the facts in the light most favorable to the
party opposing summary judgment, Fernandes. Guay v. Burack, 677
F.3d 10, 13 (1st Cir. 2012).
We put the word "shed" in quotation marks in the opening
paragraph because it is not a conventional shed. Rather, the tire
shed in which Fernandes suffered his back injury was an old
shipping container. It was located near, but separate from, a
garage building in Taunton, Massachusetts, that Penske leased from
AGAR. AGAR had previously been located in Boston, and, while
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there, its maintenance personnel had used the same container to
store their tools and later to store tires. When AGAR moved its
operations to Taunton in 2001, it brought the container along and
placed it on the property for use as tire storage.
Shortly after moving to Taunton, AGAR entered into an
agreement with a company called AMI Leasing for the leasing and
maintenance of tractor trailers. The agreement also stated that
AGAR would provide to AMI a lease on a "shop facility" located on
its Taunton property. This lease does not define "shop facility,"
nor does it mention the tire shed or a container. In 2004, after
AMI had taken over the Taunton garage and continued to use the
container for tire storage, Penske acquired AMI and became the
tenant under the same lease.1
Under the lease, Penske occupied the garage while AGAR
retained access to only limited facilities: a wash bay located at
one end of the garage and separated from the repair shop in the
garage by a cinder block wall. The lease at paragraph 29 obligated
AGAR to maintain and repair certain components of "the garage":
AGAR shall, at is [sic] expense, maintain,
repair and replace as necessary the roof,
walls, overhead doors, all structural
components, oil/water separator, electrical,
plumbing, and boiler/furnace issues in the
garage, except for repairs occasioned by the
1
For clarity, we will refer to both AMI and Penske as
"Penske," because that company was the tenant under the lease at
the time of Fernandes's injury.
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negligence of [Penske]. [Penske] agrees to
pay cost of utilities for the garage.
AGAR employed custodial and maintenance personnel, while Penske did
not.
For purposes of its motion for summary judgment, AGAR
conceded that it was the owner of the tire shed. Penske's use of
the tire shed was based on its lease of the shop facility. Penske
had placed a lock on the tire shed and had not given a key to AGAR.
The only copies of the key were kept in the garage's service
office, which was used exclusively by Penske. AGAR never used,
inspected, maintained, or repaired the tire shed during Penske's
lease of the shop facility.
Penske's service manager, Vincent Boschetti, was aware
before Fernandes's accident that the tire shed's floor was in an
unsafe condition. The roof of the container was rotted, and the
water that leaked in had softened the floor and created two or
three holes, each about eleven by seven inches in size. Several
Penkse employees, including Fernandes, had complained to Boschetti
about the holes in the floor. Boschetti had attempted to repair
the floor himself. When that did not work, he brought his concerns
to his superior at Penske, who told him that Penske would not pay
for any repairs to the tire shed and that he should instead talk to
AGAR. AGAR likewise told Boschetti that it would not spend any
money to repair the floor.
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At the time of his injury, Fernandes had been employed as
a technician by Penske for about three years, doing heavy duty
truck maintenance and repairs at the Taunton facility. He was
injured at about 3:00 A.M. on December 7, 2007, while working the
overnight shift. The tire shed had no lights, so Fernandes was
using a flashlight. In the course of moving the third of four
truck tires, which had been covering a known hole in the floor,
Fernandes stepped in the hole, losing his balance and wrenching his
back in an attempt to keep from falling. Fernandes was aware of
the hole, having seen it at least six to eight times before his
injury and stumbling into it at least twice. After Fernandes's
injury, Penske arranged for the removal of the tire shed. Penske
then entered into a separate lease agreement with another company
for a replacement container, which was also placed on AGAR's
Taunton property.
On June 3, 2009, Fernandes filed his complaint in the
district court alleging negligence against AGAR. This is a timely
appeal from entry of summary judgment in favor of AGAR.
II.
Our review is de novo, Velazquez-Ortiz v. Vilsack, 657
F.3d 64, 70 (1st Cir. 2011), and we apply Massachusetts law, as
agreed by the parties. This case turns on the interpretation of a
lease which, in the end, is a question of law. "The existence of
a legal duty is a question of law appropriate for resolution by
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summary judgment." Afarian v. Mass. Elec. Co., 866 N.E.2d 901, 905
(Mass. 2007). Fernandes's claim for negligence against AGAR only
lies if it can be established that a duty flowed to him from AGAR
under the commercial lease. See Remy v. MacDonald,
801 N.E.2d 260,
262 (Mass. 2004).
This case is, as the district court recognized,
controlled by the decision of the Massachusetts Supreme Judicial
Court (SJC) in Humphrey v. Byron. Humphrey recognized a difference
as to duty of care owed by lessors between leases of residential
property and leases of commercial property. 850 N.E.2d at 1048.
The SJC commented that the incentives to make repairs to avoid
injuries differed in the two situations. Even small commercial
tenants "would have an incentive to make repairs, for example, to
avoid workers' compensation claims and to maintain an orderly and
productive business without injuries to employees or customers. A
small commercial tenant, unlike a residential tenant, could also
regard repair expenses as a cost of doing business and raise prices
accordingly." Id. at 1049.
Humphrey sets forth the circumstances in which a lessor
of commercial property owes a duty of care to persons on the leased
property:
[A] lessor of commercial premises is liable in
tort for personal injuries only if either (1)
he contracted to make repairs and made them
negligently, or (2) the defect that caused the
injury was in a 'common area,' or other area
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appurtenant to the leased area, over which the
lessor had some control.
Id. at 1049 (quoting Chausse v. Coz, 540 N.E.2d 667, 668 (Mass.
1989)) (internal quotation marks omitted). By its terms, the
second prong of the Humphrey test applies only where the injury-
causing defect was in an area outside the "leased area" but "over
which the lessor had some control." This accords with
Massachusetts case law, which "recognizes a distinction between the
leased premises themselves and 'common' or 'appurtenant' areas
outside the leased premises, such that ordinarily, the tenant is
responsible for the leased premises and the landlord, perhaps
jointly with the tenant, is responsible for common or appurtenant
areas." Id.
Both parties agree that the tire shed, although not
specifically mentioned in the lease, was conveyed by AGAR to Penske
by the lease and so was part of the "leased area." The only issue
before us is "the interpretation of the lease relative to AGAR's
contractual duty to repair" under the first prong of the test in
Humphrey.2 If our examination of the lease reveals no contractual
2
Fernandes concedes that on this record there is no "need to
evaluate the parties' right of control" of the tire shed under the
second prong of the test in Humphrey v. Byron, 850 N.E.2d 1044,
1049 (Mass. 2006). Fernandes was correct to make this concession.
The tire shed was used exclusively by Penske. After AGAR conveyed
the premises to Penske by the lease, Penske put a lock on the
container and AGAR never received a copy of the key or otherwise
had access to the container. The undisputed facts show that AGAR
retained no control.
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undertaking by AGAR to repair the tire shed, then the duty of care
remains only with Penske, and Fernandes's negligence claim against
AGAR fails. See Sheehan v. El Johnan, Inc., 650 N.E.2d 819, 820
(Mass. App. Ct. 1995) ("If a [commercial] tenant . . . occupies the
entire premises -- i.e., there are no areas used in common with
other tenants -- then the tenant is responsible for keeping the
premises safe, absent a contractual undertaking to the contrary by
the landlord.").
The interpretation of a lease contract is a question of
law. Lumber Mut. Ins. Co. v. Zoltek Corp., 647 N.E.2d 395, 396
(Mass. 1995). If the terms of the lease are unambiguous, we
interpret it according to its plain terms, and "[s]ummary judgment
is appropriate when those plain terms unambiguously favor either
side." Farmers Ins. Exch. v. RNK, Inc.,
632 F.3d 777, 784 (1st
Cir. 2011).
The only provision of the lease between AGAR and Penske
which discusses maintenance and repair is paragraph 29, which
states in pertinent part that "AGAR shall . . . maintain, repair
and replace as necessary the roof, walls, overhead doors, all
structural components, oil/water separator, electrical, plumbing,
and boiler/furnace issues in the garage" (emphasis added). Neither
this provision nor any other provision in the lease specifically
uses the term "tire shed" or refers to a container. Paragraph 29
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provides for the maintenance and repair of the garage and for no
other structure on the Taunton premises.
Fernandes argues that the phrase "garage" in paragraph 29
should be read to include the free-standing tire shed. He argues
that the word "garage" as used in the lease refers not only to the
garage building on the Taunton property, but also to the entire
leased premises, including both the garage building and the tire
shed.
But paragraph 29 by its terms applies only to the
structural elements of and the amenities "in the garage." There is
no dispute that the tire shed was located outside of and separate
from the garage building. To interpret AGAR's repair obligation to
include the tire shed would contravene the plain language of the
lease.
The ordinary meaning of "garage" also works against
Fernandes. "Garage" is defined as "a building or component of a
building used for housing an automotive vehicle" and as "a repair
shop for automotive vehicles." Webster's Third New International
Dictionary 935 (1993). Neither of these definitions cover this
tire shed: a container used to store tires that has never been used
to house or repair vehicles.3
3
In analyzing the same dictionary definition of "garage" in
an unrelated area of law, the SJC has noted that "[t]he one certain
meaning of the word 'garage' in the aforementioned definition is
that it must be a 'building.'" Fitz-Inn Auto Parks, Inc. v. Comm'r
of Labor & Indus., 213 N.E.2d 245, 247 (Mass. 1965) (citing
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A lessor of commercial property has no obligation to make
repairs to that property unless he or she contracts to do so, see
Humphrey, 850 N.E.2d at 1049, and the parties to the lease are free
to limit the scope of the lessor's contractual repair obligations
by specifying which portions of the leased property the lessor is
to maintain and repair.
Fernandes's fallback argument is that two other
provisions in the lease -- paragraphs 26 and 27 -- should lead us
to interpret the term "garage" as used in paragraph 29 to refer to
the entirety of the leased property, including the tire shed.
Paragraph 26 states that Penske, "on paying the rent, shall have
quiet enjoyment of the garage." Paragraph 27 states that Penske
"shall have and hold the garage until" the separate vehicle lease
agreement between the parties is terminated. Fernandes argues that
because the lease states that Penske would "have quiet enjoyment of
the garage" and would "have and hold the garage," the term "garage"
as used throughout the lease, including the repair obligation in
paragraph 29, must be read to be coterminous with the entire leased
premises. We do not agree. The "quiet enjoyment" and "have and
hold" provisions are separate obligations from the repair
provision.
Webster's New International Dictionary (2d ed. 1956)). The tire
shed here is merely a container: it is not a "repair shop," and it
is not a "building."
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The lease did not obligate AGAR to maintain or repair the
tire shed, so Fernandes cannot hold AGAR liable under the test set
out by the SJC in Humphrey.
III.
We hold that under Massachusetts law, AGAR owed no duty
of care to Fernandes, so his negligence claim must fail.
The district court's decision is affirmed.
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