          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


                                 -2-
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.

                                 -3-
          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.



                                 -4-
          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


                                 -5-
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


                                       -6-
             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.

                                       -7-
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




                                 -8-
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

                                      -9-
            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."

                                  -10-
          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.




                               -11-
