Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  April 5, 2013                                                                     Robert P. Young, Jr.,
                                                                                               Chief Justice

  145887                                                                             Michael F. Cavanagh
                                                                                     Stephen J. Markman
                                                                                         Mary Beth Kelly
                                                                                          Brian K. Zahra
                                                                                  Bridget M. McCormack
  THOMAS LaMEAU, Personal Representative of                                             David F. Viviano,
  the Estate of John M. Crnkovich,                                                                  Justices
                 Plaintiff-Appellee,
  v                                                      SC: 145887
                                                         COA: 289947
                                                         Oakland CC: 2007-083761-NO
  CITY OF ROYAL OAK, DETROIT EDISON
  COMPANY, ELDEN DANIELSON, and
  BRYAN WARJU,
            Defendants-Appellees,
  and

  GAGLIO PR CEMENT CORPORATION,
            Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the August 21, 2012
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

         MARKMAN, J. (dissenting).

         Plaintiff’s decedent was fatally injured when he illegally drove his motorized
  scooter down a closed sidewalk still under construction at a high rate of speed late at
  night with no light on his scooter while he was drunk and high on marijuana and collided
  with a guy wire located above the sidewalk. Plaintiff argues that defendant Gaglio PR
  Cement Corporation, by paving the sidewalk under a city contract, breached a duty to the
  decedent and should be held responsible for his death. I would reverse the judgment of
  the Court of Appeals and remand to the trial court for entry of an order granting summary
  disposition to defendant.

          Defendant entered into a contract with the city of Royal Oak to pave a sidewalk.
  The lower courts correctly recognized that a third party to a contract cannot recover for
  negligence unless “the defendant owed a duty to the plaintiff that is separate and distinct
  from the defendant’s contractual obligations.” Fultz v Union-Commerce Assoc, 470
  Mich 460, 467 (2004). They also correctly recognized that a “separate and distinct” duty
  will arise when the party rendering performance under a contract creates a “new hazard.”
  Id. at 469; Hill v Sears, Roebuck & Co, 492 Mich 651, 671 (2012). However, I believe
  that the lower courts erred by holding that there are genuine issues of material fact
  regarding whether defendant’s performance under the contract in this case created a “new
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hazard,” and thus that defendant owed a duty to the plaintiff’s decedent that was
“separate and distinct” from defendant’s contractual obligations.

       The trial court did not provide any explanation for its finding that there are
genuine issues of material fact regarding whether defendant’s performance under the
contract created a “new hazard.” The Court of Appeals held that “[a]lthough there was
evidence that the previously unpaved area was already being used by pedestrians, the
construction of a sidewalk expanded the foreseeable uses of the pathway and created the
impression that it was safe for uses commonly associated with a sidewalk, such as travel
by bicycle or certain motorized conveyances,” and thus “[t]he trial court did not err in
concluding that plaintiff’s negligence claim was based on a duty separate and distinct
from defendant’s obligations under its contract with the city.” LaMeau v Royal Oak,
unpublished opinion per curiam of the Court of Appeals, issued August 21, 2012 (Docket
No. 289947), p 5. I respectfully disagree. To begin with, defendant, by merely paving
the sidewalk, could not have possibly created the impression that it was somehow
appropriate to operate a motorized scooter on the sidewalk because MCL 750.419
expressly outlaws the operation of motorized scooters on sidewalks, as also does
common sense. Even more to the point, by merely paving the sidewalk, defendant most
certainly did not create the impression that it would be safe to illegally drive a motorized
scooter down that sidewalk at a high rate of speed late at night with no lights while drunk
and high on marijuana.

        Finally, in concluding that defendant, by paving the sidewalk, somehow “created
the impression” that the sidewalk was safe for travel and thus created a “new hazard,” the
Court of Appeals altogether ignored the fact that defendant placed barricades around the
area of the sidewalk where the guy wire was located. Indeed, defendant posted some 30
safety barricades of varying kinds around the area, including fencing, barrels, and cones.
The barrels had safety lights attached that were automatically activated when it became
dark. Caution tape was strung so that people could not pass through, and flags were hung
from the guy wire, which was already sheathed in a bright yellow covering. Defendant
drove by this site nearly every day to check on the barricades and to put them back in
place after they were unlawfully moved by unknown persons. The Court of Appeals did
not consider any of this evidence because it held that “issues involving defendant’s
efforts to avoid or limit the creation of the hazard, or to warn or guard the public from the
hazard, relate to whether defendant breached its duty of care, not the existence of a duty
in the first instance.” LaMeau, unpub op at 6. Again, I respectfully disagree. The fact
that defendant barricaded the area directly contradicts the Court of Appeals’ holding that
defendant, by paving the sidewalk, “created the impression” that the sidewalk was safe
for travel and thus created a “new hazard,” and this was the Court of Appeals’ sole
ground for concluding that defendant had created a “new hazard.” Because defendant did
not “create the impression” that the sidewalk was safe for travel or in any other way
create a “new hazard,” defendant did not owe a duty to the decedent that is “separate and
distinct” from defendant’s contractual obligations to the city.
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       Once again, defendant merely paved a sidewalk and erected barricades as it was
contractually obligated to do by the city. The city made the decision to build the
sidewalk, even after being informed about the potential risks of the guy wire. And the
Detroit Edison Company, the owner of the guy wire, failed to remove it, even after being
instructed to do so by the city. And unknown third parties unlawfully moved the
barricades. And the decedent is the one who chose to illegally drive his motorized
scooter down the closed sidewalk at a high rate of speed late at night with no light on his
scooter while he was drunk and high on marijuana.

       Defendant Gaglio Cement here did nothing wrong, and should not be held liable
for the actions and inactions of others. Defendant was not the one that made the decision
to build the sidewalk before the guy wire had been removed; it was not the one that failed
to remove the guy wire; it was not the one that unlawfully moved the barricades; and it
was not the one that illegally drove a motorized scooter down the closed sidewalk at a
high rate of speed late at night with no lights while drunk and high on marijuana. Some
combination of these actions and inactions are what caused the tragic accident in this
case, not Gaglio Cement’s faithful performance of its contractual obligation to pave a
sidewalk. The tort system of this state, and the duties that it imposes on persons and
businesses, are predicated on traditional notions of individual responsibility and personal
accountability. In my judgment, Gaglio Cement cannot reasonably be found to have
breached either of these standards in this case.

        The Court of Appeals’ decision involves more than the application of traditional
tort principles to a new set of facts. Rather, it has effectively imposed a new burden on
contractors, one with respect to which they must not only ensure that they do not perform
their own contractual obligations negligently, but apparently must also ensure that the
party with whom they have contracted has not performed its obligations negligently.
What distinguishes this case from one in which the contractor who paves the highway is
held responsible for the design defect in the city’s highway plan that leads to an injury?
And what distinguishes this case from one in which the contractor who lays the rug, or
places the tile, in the public building according to the state’s specifications is held
responsible for the design defect in the state’s building plan that leads to an injury? In
light of governmental immunity laws that protect public entities themselves from these
types of lawsuits, it seems likely that injured parties will look increasingly to hold private
contractors responsible in such circumstances despite their total lack of involvement in
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the formulation and design of such projects. Because I would not redefine the duties and
liabilities of contractors in this manner, I respectfully dissent.

      KELLY, J., joins the statement of MARKMAN, J.




                        I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        April 5, 2013                       _________________________________________
       t0402                                                                Clerk
