Fultz v. Union-Commerce Associates, Docket No. 121613. Calendar No. 10.

• Decision Date: 14 July 2004
• Docket Number: Docket No. 121613. Calendar No. 10.
• Parties: Sandra Gail FULTZ and Otto Fultz, Plaintiffs-Appellees, v. UNION-COMMERCE ASSOCIATES, Comm-Co Equities, Namer Jonna, Arkan Jonna, Laith Jonna, Mohsin Kouza, and Gladys Kouza, Defendants, and Creative Maintenance, Ltd., Defendant-Appellant.
• Court: Michigan Supreme Court

683 N.W.2d 587

470 Mich. 460

Sandra Gail FULTZ and Otto Fultz, Plaintiffs-Appellees, v. UNION-COMMERCE ASSOCIATES, Comm-Co Equities, Namer Jonna, Arkan Jonna, Laith Jonna, Mohsin Kouza, and Gladys Kouza, Defendants, and Creative Maintenance, Ltd., Defendant-Appellant.

Docket No. 121613. Calendar No. 10.

Supreme Court of Michigan.

Argued December 10, 2003.

Decided July 14, 2004.

Powers, Chapman, DeAgostino, Meyers & Milia, P.C. (by Brian P. Gijsbers), Troy, MI, for the plaintiffs.

Collins, Einhorn, Farrell & Ulanoff, P.C. (by J. Mark Cooney and Noreen L. Slank), Southfield, MI, for Creative Maintenance, Ltd.

CORRIGAN, C.J.

This case arises from an injury that plaintiff Sandra Fultz sustained when she slipped and fell on an icy parking lot owned by defendant Comm-Co Equities (Comm-Co). We reverse the Court of Appeals decision holding a snow removal contractor, defendant Creative Maintenance Limited (CML), responsible for plaintiff's injury on the basis of its alleged failure to plow or salt the parking lot. The injured plaintiff has no cause of action against CML because it breached no duty owed to plaintiff. The injured plaintiff's husband filed a loss of consortium claim. Because this claim is derivative of her cause of action, this claim necessarily fails as well. Plaintiff's remedy lies solely against the premises owner. The threshold question for negligence claims brought against a contractor on the basis of a maintenance contract between a premises owner and that contractor is whether the contractor breached a duty separate and distinct from those assumed under the contract. Because the contractor in this case, CML, owed no duty to plaintiff, her claim fails. The Court of Appeals thus erred in affirming the jury verdict for plaintiff. Accordingly, we reverse the judgment of the Court of Appeals.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff fell and injured her ankle while walking across defendant Comm-Co's snow- and ice-covered parking lot. Defendant CML had previously entered an oral contract with defendant Comm-Co to provide snow and salt services for the lot. At the time plaintiff fell, CML had not plowed the lot in approximately fourteen hours and had not salted the parking lot.

Plaintiff sued Comm-Co and CML for negligence. The trial court entered a default judgment against defendant Comm-Co, which is not a party to this appeal. The jury found no breach of the oral contract between defendants CML and Comm-Co, but awarded plaintiff compensatory damages after finding that defendant CML had been negligent by failing to perform under the contract and that CML's negligence was the proximate cause of plaintiff's injuries.

The Court of Appeals affirmed the jury's verdict. It held that Osman v. Summer Green Lawn Care, Inc., 209 Mich.App. 703, 532 N.W.2d 186 (1995), compelled the conclusion that defendant CML owed a common-law duty to provide the contracted snow removal service in a reasonable manner. The Court of Appeals further concluded that CML breached this duty by failing to perform its contractual obligation.

We granted defendant CML's application for leave to appeal limited to two issues: (1) whether plaintiff can establish a duty owed her arising from a contract to which she was not a party and (2) whether a landowner's defenses are available to a contractor acting for the landowner. 468 Mich. 883, 661 N.W.2d 232 (2003).

We need not reach the second question regarding defenses because we hold, as a matter of law, that defendant owed no contractual or common-law duty to plaintiff to plow or salt the parking lot.

II. STANDARD OF REVIEW

Whether defendant CML owed a duty to plaintiff is a question of law. We review de novo questions of law. Byker v. Mannes, 465 Mich. 637, 643, 641 N.W.2d 210 (2002).

III. DISCUSSION AND ANALYSIS

It is well-established that a prima facie case of negligence requires a plaintiff to prove four elements: duty, breach of that duty, causation, and damages. Case v. Consumers Power Co., 463 Mich. 1, 6, 615 N.W.2d 17 (2000); Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 96 n. 10, 485 N.W.2d 676 (1992). The threshold question in a negligence action is whether the defendant owed a duty to the plaintiff. "It is axiomatic that there can be no tort liability unless defendants owed a duty to plaintiff." Beaty v. Hertzberg & Golden, PC, 456 Mich. 247, 262, 571 N.W.2d 716 (1997).

Plaintiff does not claim that any statute or ordinance imposes a duty on CML to maintain the parking lot where she was injured, nor does she claim that she was a third-party beneficiary of the contract between defendant CML and the premises owner. She contends instead that defendant CML, by contracting to plow and salt the parking lot, owed a common-law duty to plaintiff to exercise reasonable care in performing its contractual duties. Plaintiff further alleges that defendant's failure to plow or salt the parking lot breached that duty under the common-law tort principles expressed in Restatement Torts, 2d, § 324A:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect [sic, perform] [¹] his undertaking, if

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(b) he has undertaken to perform a duty owed by the other to the third person....

Michigan courts have accepted the Restatement of Torts, 2d, § 324A, as an accurate statement of Michigan law and used the principles stated above in analyzing plaintiffs' claims in the past. See, e.g., Smith v. Allendale, 410 Mich. 685, 303 N.W.2d 702 (1981)

; Callesen v. Grand Trunk W. R. Co., 175 Mich.App. 252, 437 N.W.2d 372 (1989),

Cleveland Cunningham v. Continental Cas. Co., 139 Mich.App. 238, 361 N.W.2d 780 (1984),

Staffney v. Michigan Millers Mut. Ins. Co., 140 Mich.App. 85, 362 N.W.2d 897 (1985),

Schanz v. New Hampshire Ins. Co., 165 Mich.App. 395, 418 N.W.2d 478 (1988).

While these opinions have endorsed § 324A, they must not be invoked uncritically or without regard to limiting principles within our case law. As we stated in Smith, supra at 713, 303 N.W.2d 702:

Unlike a statute which expresses a legislative directive for the treatment of future cases, the Restatement seeks primarily to distill the teachings of decided cases and is descriptive.... Even where a particular Restatement section has received specific judicial endorsement, cases where that section is invoked must be decided by reference to the policies and precedents underlying the rule restated.

Thus, we must reconcile the principles expressed in § 324A with our case law that limits their breadth.

If one voluntarily undertakes to perform an act, having no prior obligation to do so, a duty may arise to perform the act in a nonnegligent manner. Home Ins. Co. v. Detroit Fire Extinguisher Co., Inc., 212 Mich.App. 522, 529, 538 N.W.2d 424 (1995); Osman, supra;

Keeton, Prosser & Keeton, Torts, § 56, pp. 380-381 (5th ed., 1984).

We described this common-law duty in Clark v. Dalman, 379 Mich. 251, 150 N.W.2d 755 (1967):

Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law....

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Such duty of care may be a specific duty owing to the plaintiff by the defendant, or it may be a general one owed by the defendant to the public, of which the plaintiff is a part. Moreover, while this duty of care, as an essential element of actionable negligence, arises by operation of law, it may and frequently does arise out of a contractual relationship, the theory being that accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done, and that a negligent performance constitutes a tort as well as a breach of contract. [Id. at 260-261, 150 N.W.2d 755.]

In defining the contours of this common-law duty, our courts have drawn a distinction between misfeasance (action) and nonfeasance (inaction) for tort claims based on a defendant's contractual obligations. We have held that a tort action will not lie when based solely on the nonperformance of a contractual duty. See Hart v. Ludwig, 347 Mich. 559, 79 N.W.2d 895 (1956); Chase v. Clinton Co., 241 Mich. 478, 217 N.W. 565 (1928); Churchill v. Howe, 186 Mich. 107, 152 N.W. 989 (1915).

This Court described the nonfeasance/misfeasance dichotomy in Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 498-499, 418 N.W.2d 381 (1988):

In determining standards of conduct in the area of negligence, the courts have made a distinction between misfeasance, or active misconduct causing personal injury, and nonfeasance, which is passive inaction or the failure to actively protect others from harm. The common law has been slow in recognizing liability for nonfeasance because the courts are reluctant to force persons to help one another and because such conduct does not create a new risk of harm to a potential plaintiff. Thus, as a general rule, there is no duty that obligates one person to aid or protect another.

In Hart, supra at 564-565, 79 N.W.2d 895, this Court opined that the misfeasance/nonfeasance distinction is often largely semantic and somewhat artificial:

The division thus made, between misfeasance, which may support an action either in tort or on the contract, and the nonfeasance of a contractual obligation, giving rise only to an action on the contract, is admittedly difficult to make in borderland cases. There are, it is recognized, cases in which an incident of nonfeasance occurs in the course of an undertaking assumed. Thus a surgeon fails to sterilize his instruments, an engineer fails to shut off steam, a builder fails to fill in a ditch in a public way. These are all, it is true, failures to act, each disastrous detail, in itself, a "mere" nonfeasance. But the significant

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