822 N.W.2d 190 (Mich. 2012), 143329, Hill v. Sears, Roebuck and Co.

Docket Nº:143329, 143348, 143633.
Citation:822 N.W.2d 190, 492 Mich. 651
Opinion Judge:MARY BETH KELLY, J.
Party Name:HILL v. SEARS, ROEBUCK AND CO.
Attorney:Mark Granzotto, P.C., Royal Oak (by Mark Granzotto), and Fraser & Souweidane, PC (by Stuart A. Fraser, Mount Clemens), for Marcy Hill, Christopher Hill, and Patricia Hill. Moffett, Vitu, Lascoe & Packus, P.C. (by Jerry A. Lascoe and Michelle M. Holwey, Birmingham), for Sears, Roebuck and Co. and ...
Judge Panel:YOUNG, C.J., and MARKMAN and ZAHRA, JJ., concurred with MARY BETH KELLY, J. MARILYN KELLY, J. (dissenting). CAVANAGH and HATHAWAY, JJ., concurred with MARILYN KELLY, J.
Case Date:August 16, 2012
Court:Supreme Court of Michigan
 
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Page 190

822 N.W.2d 190 (Mich. 2012)

492 Mich. 651

HILL

v.

SEARS, ROEBUCK AND CO.

Nos. 143329, 143348, 143633.

Supreme Court of Michigan.

August 16, 2012

Argued May 9, 2012.

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[Copyrighted Material Omitted]

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Mark Granzotto, P.C., Royal Oak (by Mark Granzotto), and Fraser & Souweidane, PC (by Stuart A. Fraser, Mount Clemens), for Marcy Hill, Christopher Hill, and Patricia Hill.

Moffett, Vitu, Lascoe & Packus, P.C. (by Jerry A. Lascoe and Michelle M. Holwey, Birmingham), for Sears, Roebuck and Co. and Sears Logistics Services, Inc.

Kallas & Henk PC, Bloomfield Hills (by Constantine N. Kallas and Courtney A. Jones), for Exel Direct, Inc., and Merchant Delivery, Inc.

Secrest Wardle, Troy (by Sidney A. Klingler and Thomas J. Azoni), for Mark Pritchard and Timothy Dameron.

OPINION

MARY BETH KELLY, J.

[492 Mich. 654] These cases arise out of an explosion that destroyed plaintiff Marcy Hill's Clinton Township home after she released natural gas through an uncapped gas line, which ignited when her adult daughter attempted to light a candle, after they had both actually smelled the gas in the home throughout the day and evening. Plaintiffs 1 filed suit against the retailers, delivery companies, and installers of plaintiffs' electric dryer, which had been installed nearly four years earlier and had functioned without incident. We heard oral argument on the applications to consider in part " (1) whether the defendant installers of the electrical appliance, Mark Pritchard and Timothy Dameron, had a duty to the plaintiffs with respect to the uncapped gas line in their home that was

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[492 Mich. 655] separate and distinct from their contractual duty to properly and safely install the electrical appliance" and " (2) whether these defendant installers created a new dangerous condition with respect to the uncapped gas line, or made an existing dangerous condition more hazardous...." 2

Because defendant installers and plaintiffs had a limited relationship that did not require defendant installers to undertake any action relative to the uncapped gas line, we hold that defendant installers owed no legal duty to plaintiffs with respect to the uncapped gas line in plaintiffs' home. Further, we conclude that the delivery and installation of the dryer did not create a new dangerous condition with respect to the uncapped gas line or make an existing dangerous condition more hazardous. We therefore reverse the judgment of the Court of Appeals and remand this case to the circuit court for entry of an order granting summary disposition for defendants.3

I. FACTS AND PROCEDURAL HISTORY

In August 2003, Marcy purchased a home from Charles and Oralia Lindsey. The home had a kitchen niche for the clothes washer and dryer. The Lindseys had used a natural-gas-powered dryer, which connected to a gas line that extended from the furnace room to the [492 Mich. 656] kitchen niche.4 When the Lindseys moved out of the home, they took their appliances with them and turned off the gas to the line supplying the dryer. They did not put a pipe cap on the end of the gas line in the kitchen, the end of which was visibly apparent.

A few weeks later, Marcy purchased a new washer and an electric-powered dryer from defendant retailers.5 The appliances were delivered by defendant delivery companies 6 and installed by Pritchard and Dameron on September 8, 2003.7 At the direction of Marcy's mother, defendant installers positioned the appliances in the designated area of the kitchen, in the same spot where the Lindseys' washer and dryer had been. After its installation, the electric dryer functioned without incident for almost four years.

On May 19, 2007, Marcy's kitchen faucet and the pipes under her sink required repair. The next day, after seeking repair advice, Marcy attempted to turn off the main water supply by turning various valves in the furnace room. In doing so, Marcy inadvertently opened the natural gas valve supplying the uncapped gas line

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in the kitchen. After smelling natural gas, Marcy attempted to shut off the valve by returning it to what she thought to be its original position, but she did not close the valve. Marcy continued to smell gas periodically throughout the day. Although she knew she " was supposed to call someone" under the circumstances, she did [492 Mich. 657] not do so.8 Instead, Marcy opened the windows and " thought there was nothing wrong," continuing to light and smoke cigarettes throughout the evening.

Later, when Marcy's daughter, Patricia, arrived, she told Marcy that she smelled gas. Like Marcy, Patricia knew the smell of gas " was dangerous" and that she should " get out of the house." 9 While Marcy and her daughter continued to periodically smell gas, they both continued to light and smoke cigarettes indoors and did nothing to remedy the situation except to open the windows.10 That evening, both Marcy and her son went to bed, while Patricia went out. When Patricia returned home at about 3 a.m., she again smelled gas near the dryer.11 Patricia then went to the living room, where she attempted to light a candle with a lighter. According to Patricia, " as soon as the lighter ignited," the house exploded. Plaintiffs escaped from the burning house, but all of them suffered some injuries.

Plaintiffs filed a lawsuit against the instant defendants, alleging that defendant installers negligently installed the new electric dryer and failed to properly inspect the uncapped gas line, discover the uncapped gas line, cap the gas line, and warn or give notice to plaintiffs of the uncapped gas line. Defendant installers [492 Mich. 658] moved for summary disposition under MCR 2.116(C)(8) and (10), while defendant retailers and delivery companies moved for summary disposition under MCR 2.116(C)(10). Defendant installers asserted that they did not owe plaintiffs a cognizable duty because they did not create a " new hazard" that did not previously exist and they had " absolutely no interaction" with the gas line. Defendant retailers and delivery companies argued that they had no duty to protect plaintiffs from the gas line, noting that they had merely sold Marcy the dryer or arranged for delivery services.

The circuit court first denied defendant retailers' and delivery companies' motions for summary disposition, reasoning in part that, " at a minimum, [these] defendant entities owed a duty to plaintiffs not to make the situation involving the uncapped gas line worse." The circuit court also denied defendant installers' motion for summary disposition, explaining:

[T]here is a social policy which applies to delivery personnel such that they are precluded from entering an individual's home and making a dangerous situation even worse. Plaintiffs have presented sufficient evidence that the uncapped gas valve, coupled with its concealment by the location of a new appliance, created a foreseeable risk of harm. There is

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no evidence that [defendant installers] attempted to cap the open gas valve or warn plaintiffs about the hazard. It cannot seriously be disputed that the nature of the harm posed a very serious risk. The Court therefore concludes that [defendant installers] owed a duty to plaintiffs not to make the hazard created by the uncapped gas valve worse by their actions, including, but not limited to, positioning the new appliances in such a way as to conceal the hazard from view.[12]

[492 Mich. 659] Defendant installers sought interlocutory leave to appeal in the Court of Appeals, which granted leave and affirmed the circuit court in an unpublished opinion per curiam.13 Addressing the issue of duty, the Court of Appeals held that defendant installers had a duty not to make the uncapped gas line more dangerous by " concealing" it with the electric dryer. The panel explained, " [T]he hazard that allegedly caused the explosion did not exist until [defendant installers] installed the dryer in a way that prevented the discovery of the uncapped gas line." 14

Defendants filed separate applications for leave to appeal in this Court. We heard oral argument on the applications. In lieu of granting leave to appeal, pursuant to MCR 7.302(H)(1), we reverse the judgment of the Court of Appeals.

II. STANDARD OF REVIEW

We review de novo a circuit court's determination on a motion for summary disposition under MCR 2.116(C)(10).15 Whether a defendant owes a plaintiff a duty of care is a question of law decided by the circuit court.16 We review de novo the determination whether a duty exists. 17

[492 Mich. 660] III. ANALYSIS

To establish a prima facie case of negligence, a plaintiff must prove that " (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the plaintiff suffered damages, and (4) the defendant's breach was a proximate cause of the plaintiff's damages." 18 This negligence action, however, principally concerns the element of duty and requires us to consider the threshold question whether defendants owed plaintiffs any of the claimed legal duties when the dryer was sold, delivered, and installed in plaintiffs' home nearly four years before the explosion.19 Defendants argue that the

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lower courts erred by concluding that they owed plaintiffs a duty to not create a new hazard by " concealing" an open view of the gas line. Plaintiffs counter that defendant installers owed a duty to either cap the gas line or warn plaintiffs of the existence of the uncapped line.

A. LEGAL DUTY

" ‘ It is axiomatic that there can be no tort liability unless [a] defendant[ ] owed a duty to [a] plaintiff.’ " 20 Every person engaged in the performance of an undertaking has a duty to use due care or...

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