Order                                                                                       Michigan Supreme Court
                                                                                                  Lansing, Michigan

  July 15, 2011                                                                                       Robert P. Young, Jr.,
                                                                                                                Chief Justice

  142821                                                                                              Michael F. Cavanagh
                                                                                                            Marilyn Kelly
                                                                                                      Stephen J. Markman
                                                                                                      Diane M. Hathaway
  CHRISTOPHER TUCKER, by his Guardian,                                                                    Mary Beth Kelly
  PAMELA WATSON,                                                                                          Brian K. Zahra,
           Plaintiff-Appellee,                                                                                       Justices


  v                                                                SC: 142821
                                                                   COA: 294754
                                                                   Oakland CC: 2008-095097-NO
  VINCENT PIPITONE and VINCENT PIPITONE,
  JR., d/b/a PRO BUILT CONSTRUCTION, PRO
  BUILT CUSTOM BUILDING CORPORATION,
  PRO BUILT CUSTOM BUILDING, INC.,
  VINCE PRO BUILT, and IMPROVEMENTS
  UNLIMITED, INC.,
               Defendants,
  and

  RICHARD CARSON, d/b/a CARSON HOME
  MAINTENANCE,
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, the application for leave to appeal the February 15, 2011
  judgment of the Court of Appeals is considered, and it is DENIED. The Court of
  Appeals did not err in affirming the Oakland Circuit Court’s denial of the motion to
  dismiss the plaintiff’s negligence claim against defendant Richard Carson on the
  defendant’s stated basis that the plaintiff had failed to identify a legal duty that was
  separate and distinct from the defendant’s contractual duties pursuant to Fultz v Union-
  Commerce Assoc, 470 Mich 460, 467 (2004). The Court of Appeals correctly held that
  the plaintiff had alleged a separate and distinct common law duty on the part of the
  defendant to use ordinary care in order to avoid physical harm to foreseeable persons in
  the execution of his undertakings. Loweke v Ann Arbor Ceiling & Partition Co, LLC,
  489 Mich 157 (2011).

         HATHAWAY, J., would deny leave to appeal without the further statements found
  in the majority’s order.




                          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.
                          July 15, 2011                       _________________________________________
           t0712                                                              Clerk
