
    Mark A. Deloury v. Commons Shopping Center LP et al.
    Superior Court, Worcester, SS
    No. 990638
    Memorandum Dated April 16, 2002
   Murphy, J.

In this action arising out of a fall on a patch of black ice in a parking lot controlled by defendants Commons Shopping Center, LP and other defendants, the Defendant Russell Gibson [“Gibson”] seeks summary judgment on the count of the Plaintiff Mark A. Delouiy ["Delouiy”] against him for what sounds in negligent plowing of the premises in question.

The Court disagrees that the claim against Gibson is controlled by contract law in terms of whether or not Deloury is an “intended” or “incidental” beneficiary of any contract between the parties defendant for snow removal services. There is a direct claim of negligence which forms a valid cause of action.

The Court does, however, agree with Gibson’s alternative argument that the run-off from piled snow, later re-frozen into ice, cannot ground liability in tort for a fall on that ice. See Cooper v. Braver, Healey & Co., Inc., 320 Mass. 138, 139-40 (1946). The counter-argument of Deloury that the snow could have been piled differently, is too attenuated to create a genuine issue of material fact. Nothing on the summary judgment record either establishes the feasibility of such a different methodology or offers scientific proof that the water which became ice, seeking its own level, would have settled in any other spot had such a different plowing method been utilized by Gibson.

Snow is piled by snow plows in commercial parking lots, after a winter storm, where there is room to pile it.

Defendant Gibson’s Motion for Summary Judgment is hereby ALLOWED.  