In Loweke v Ann Arbor Ceiling & Partition Co, LLC, __ Mich __ (#141168, 6/6/2011) the Michigan Supreme Court held that a contracting party’s assumption of contractual obligations does not extinguish or limit separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract.
In Loweke plaintiff, an employee of an electrical subcontractor, was injured at a construction site when several cement boards fell on him. The boards had been leaned against a wall by employees of defendant, a carpentry and drywall subcontractor, which, like plaintiff’s employer, had been hired by a general contractor to work on the construction project.
As this Court has historically recognized, a separate and distinct duty to support a cause of action in tort can arise by statute, Clark v Dalman, 379 Mich 251 (1967), or by a number of preexisting tort principles, including duties imposed because of a special relationship between the parties, see, e.g., Williams v Cunningham Drug Stores, Inc, 429 Mich 495 (1988), and Fultz v Union-Commerce Assoc, 470 Mich 460 (2004),, and the generally recognized common-law duty to use due care in undertakings, see, e.g., Clark, supra; Hart, 347 Mich at 564. In summary, “[w]hether a particular defendant owes any duty at all to a particular plaintiff [in tort],” Fultz, 470
Mich at 467 (emphasis added), is generally determined without regard to the obligations contained within the contract, , 568 F3d at 577. See, also, Davis Churchill v Howe, 186 107, 114; 152 NW 989 (1915) (explaining that although a tort can grow out of a contract, in general, a tort is a “wrong independent of a contract”). Accordingly, with the aforementioned principles in mind, we clarify that when engaging in the “separate and distinct mode of analysis” in Fultz’s analytical framework, see 470 Mich at 469-470, courts should not permit the contents of the contract to obscure the threshold question of whether any independent legal duty to the non contracting third party exists, the breach of which could result in tort liability. Instead, in determining whether the action arises in tort, and thus whether a separate and distinct duty independent of the contract exists, the operative question under Fultz is whether the defendant owed the plaintiff any legal duty that would support a cause of action in tort, including those duties that are imposed by law. Under Fultz, a contracting party’s assumption of contractual obligations does not extinguish or limit separate, preexisting common-law or statutory tort duties owed to noncontracting third parties in the performance of a contract. Accordingly, we clarify that when engaging in Fultz’s “separate and distinct mode of analysis,” courts should not permit the contents of the contract to obscure the proper initial inquiry: whether, aside from the contract, the defendant owed any independent legal duty to the plaintiff. In this case, defendant—by performing an act under the contract—was not relieved of its preexisting common-law duty to use ordinary care in order to avoid physical harm to foreseeable persons and property in the execution of its undertakings. That duty, which is imposed by law, is separate and distinct from defendant’s contractual obligations with the general contractor. Mich