[1] ORDER [2] This matter came before a panel of the Supreme Court pursuant to an order issued to the defendant E R Realty, Inc. (E R) to appear and show cause why its appeal should not be summarily denied and dismissed. The defendant had appealed from summary judgment in favor of the co-defendant Providence Journal Company (Journal).
[3] In this case plaintiff had filed suit against the two defendants for injuries suffered when she tripped over a cable placed by E R around a parking lot it owned. The lot served a shopping center in which the Journal leased a store. A clause in the lease provided indemnity by the lessee in favor of E R.
[4] After examining the memoranda submitted by the parties and after hearing their counsel in oral argument, we are of the opinion that E R has failed to demonstrate that there was an issue of material fact to be decided.
[5] The court is also of the opinion that the trial justice reached the proper conclusion. In Muldowney v. WeatherkingProducts, Inc., 509 A.2d 441 (R.I. 1986) we stated:
"In order to successfully assert an action for indemnity, the prospective indemnitee must prove three elements. First, the party seeking indemnity must be liable to a third party. Second, the prospective indemnitor must also be liable to the third party. Third, as between the prospective indemnitee and indemnitor, the obligation [giving rise to the breach of duty] ought to be discharged by the indemnitor."
[6] In this case E R never contended that the Journal either erected the cable barrier initially or had any control over it. Thus, the Journal had no liability to the plaintiff.
[7] For these reasons, E R's appeal is denied and dismissed, the judgment appealed from is affirmed and the papers of the case are remanded to the Superior Court for further proceedings.
[8] WEISBERGER and KELLEHER, JJ., did not participate.