                                                                             Michigan Supreme Court
                                                                                   Lansing, Michigan
                                                       Chief Justice:          Justices:



Opinion                                                Robert P. Young, Jr. Michael F. Cavanagh
                                                                            Marilyn Kelly
                                                                            Stephen J. Markman
                                                                            Diane M. Hathaway
                                                                            Mary Beth Kelly
                                                                            Brian K. Zahra

                                                                                JUNE 6, 2011

                             STATE OF MICHIGAN

                                   SUPREME COURT


 RICHARD LOWEKE and SHERRI
 LOWEKE,

              Plaintiffs-Appellants,

 v                                                              No. 141168

 ANN ARBOR CEILING & PARTITION
 CO., L.L.C.,

              Defendant-Appellee.


 BEFORE THE ENTIRE BENCH (except ZAHRA, J.)

 CAVANAGH, J.
       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.

 Plaintiff sued defendant for negligence and defendant moved for summary disposition,

 asserting that, under Fultz v Union-Commerce Assoc, 470 Mich 460, 469-470; 683 NW2d

 587 (2004), and its progeny, it owed no duty to plaintiff that was “separate and distinct”
from defendant’s contractual duties to the general contractor. The trial court granted

defendant’s motion and the Court of Appeals affirmed.             We granted plaintiff’s

application for leave to appeal. Loweke v Ann Arbor Ceiling & Partition Co, Inc, 488

Mich 876 (2010).

      We take this opportunity to clarify Fultz’s “‘separate and distinct’ mode of

analysis,” 470 Mich at 467, and hold 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. Davis v

Venture One Constr, Inc, 568 F3d 570, 575, 577 (CA 6, 2009).1 In this case, plaintiff

asserts that defendant had a common-law duty, separate and distinct from its contractual

obligations to the general contractor, to use ordinary care in order to avoid physical harm

to persons and property in the execution of its undertakings. See, e.g., Clark v Dalman,

379 Mich 251, 261; 150 NW2d 755 (1967); Rinaldo’s Constr v Mich Bell Tel Co, 454

Mich 65, 84; 559 NW2d 647 (1997). Because defendant raised its motion for summary

disposition on the basis of an improper understanding of Fultz, and the Court of Appeals

affirmed the trial court’s decision granting summary disposition on that basis, we reverse

the judgment of the Court of Appeals and remand this case to the trial court for further

proceedings consistent with this opinion.


1
  Although the United States Court of Appeals for the Sixth Circuit has subsequently
opined that Michigan courts would have decided Davis differently, see Bennett v MIS
Corp, 607 F3d 1076, 1096 (CA 6, 2010), the Sixth Circuit’s interpretation of Michigan
law is not binding on this Court. Rasheed v Chrysler Corp, 445 Mich 109, 123 n 20; 517
NW2d 19 (1994). And, for the reasons stated later in this opinion, we reject Bennett’s
overly broad reading of Fultz.



                                            2
                       I. FACTS AND PROCEDURAL HISTORY

       Plaintiff, Richard Loweke,2 was an electrician employed by Shaw Electric, a

subcontractor on a construction project at Detroit Metro Airport. Walbridge Aldinger

Company, the general contractor for the project, also subcontracted with defendant to

provide carpentry and drywall services. Defendant’s employees leaned numerous 4- by

8-foot sheets of cement board against a wall in a hallway where plaintiff was working.

Plaintiff claimed that at the time of the accident, he was standing midway in front of the

cement boards when, for unknown reasons, sheets of the cement board began to fall.

Plaintiff attempted to stop the boards from falling on him, but to no avail: several sheets

of cement board fell onto plaintiff’s right leg, injuring him.

       Plaintiff sued defendant, alleging that defendant was negligent in stacking the

cement boards in an unstable position, creating a new hazard that previously did not exist.

Relying primarily on Fultz, defendant moved for summary disposition, asserting that it

was not liable to plaintiff in tort because plaintiff’s allegations were based on an assertion

that defendant negligently performed its contractual obligations to the general contractor

and, thus, were not based on any separate and distinct duty that defendant owed to

plaintiff. To support its argument, defendant cited its contract with Walbridge, which

held defendant responsible for “unloading, moving, lifting, protection, securing and

dispensing of its materials and equipment at the Project Site.” Defendant asserted that it

had not violated any duty that was independent of the contract because, in its view, the


2
 Because plaintiff Sherri Loweke’s claims are derivative of the injuries suffered by her
husband Richard, we will refer to Richard Loweke as the singular “plaintiff.”



                                              3
management and storage of its materials was a subject of its contract with Walbridge.

The trial court agreed with defendant and granted its motion for summary disposition,

reasoning that what had happened was within defendant’s obligations under the contract.

Plaintiff appealed.

       The Court of Appeals affirmed. The Court explained that, under Fultz, a “court

must look at the terms of the contract and determine whether the defendant’s action was

required under the contract.”     Loweke v Ann Arbor Ceiling & Partition Co, Inc,

unpublished opinion per curiam of the Court of Appeals, issued April 22, 2010 (Docket

No. 289451), p 3. Because defendant was required under its contract with Walbridge to

secure the cement board at the project site, the Court reasoned that plaintiff’s claim was

based on defendant’s negligence in performing its obligations under the contract and that

the alleged hazard had not presented any unique risk that was not contemplated by the

contract. Finally, the Court claimed that its holding was supported by two peremptory

orders of this Court: Mierzejewski v Torre & Bruglio, Inc, 477 Mich 1087 (2007), and

Banaszak v Northwest Airlines, Inc, 477 Mich 895 (2006).          We granted plaintiff’s

application for leave to appeal. Loweke, 488 Mich 876.

                             II. STANDARD OF REVIEW

       This Court reviews de novo a trial court’s decision on a motion for summary

disposition. In re Egbert R Smith Trust, 480 Mich 19, 23; 745 NW2d 754 (2008). This

Court also reviews de novo questions of law. Byker v Mannes, 465 Mich 637, 643; 641

NW2d 210 (2002). Whether a defendant is under a legal obligation to act for a plaintiff’s

benefit—i.e., whether a defendant owes a particular plaintiff a duty—is a question of law.




                                            4
Dyer v Trachtman, 470 Mich 45, 49; 679 NW2d 311 (2004); Valcaniant v Detroit Edison

Co, 470 Mich 82, 86; 679 NW2d 689 (2004).

                                     III. ANALYSIS

      To establish a prima facie case of negligence, a plaintiff must prove the following

elements: (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. Roulo v Auto Club of Mich, 386 Mich 324,

328; 192 NW2d 237 (1971). Accordingly, a defendant is not liable to a plaintiff unless

the defendant owed a legal duty to the plaintiff. Beaty v Hertzberg & Golden, PC, 456

Mich 247, 262; 571 NW2d 716 (1997). In this case, the issue is when a duty of care

arises between a party to a contract and a noncontracting third party. In other words,

when two parties enter into a contract and a noncontracting third party, i.e., one who is a

stranger to the contract, is injured, under what circumstances does a duty of care arise

between the contracting party and the third party?

      In Fultz,3 this Court attempted to clarify the standards for determining when a

negligence action based on a defendant’s contractual obligations with another and

brought by a third party to that contract may lie. Since Fultz and its progeny were issued,

however, courts have erroneously interpreted this Court’s decisions as rejecting accepted

tort-law principles and creating a legal rule “unique to Michigan tort law,” which bars


3
  Although the two concurring justices in Fultz remain committed to their positions in
that case, see 470 Mich at 470-476 (MARILYN KELLY, J., concurring), we recognize that
the principles announced by the Fultz majority are the law in Michigan and will apply
them here.



                                            5
negligence causes of action on the basis of a lack of duty if a third-party plaintiff alleges

a hazard that was the subject of the defendant’s contractual obligations with another.

Bennett v MIS Corp, 607 F3d 1076, 1091-1092, 1094-1095 (CA 6, 2010); see, also,

Hatcher v Senior Home Health Care Inc, unpublished opinion per curiam of the Court of

Appeals, issued August 19, 2010 (Docket No. 289208), p 5 (stating that a claim is barred

if an injury is “caused by a hazard that is even remotely connected to a contractual

relationship”). Because this broad interpretation is misguided, we write to clarify Fultz.

                              A. LEGAL BACKGROUND

       Before Fultz, when a plaintiff pleaded a tort arising out of a defendant’s breach of

contractual obligations, Michigan courts historically drew a distinction between

“misfeasance” of a contractual obligation—i.e., “active misconduct”—and “nonfeasance”

of a contractual obligation—i.e., “passive inaction,” Williams v Cunningham Drug

Stores, Inc, 429 Mich 495, 498; 418 NW2d 381 (1988), or “failing to do what one has

promised to do in the absence of a duty to act apart from the promise made,” Ferrett v

Gen Motors Corp, 438 Mich 235, 245 n 11; 475 NW2d 243 (1991) (quotation marks and

citation omitted). Under this dichotomy, a contracting party generally was not liable in

tort for the complete nonperformance of a contractual obligation, or nonfeasance,

whereas defective performance of a contractual obligation, or misfeasance, could support

an action in tort or contract. Rinaldo’s Constr, 454 Mich at 83-84; Ferrett, 438 Mich at

245 n 11; Chase v Clinton Co, 241 Mich 478, 486; 217 NW 565 (1928). As this Court

has stated, however, the fundamental principle distinguishing a cause of action in tort

from one in contract is the concept of duty.         Rinaldo’s Constr, 454 Mich at 83.

Accordingly, in cases of nonfeasance, a defendant who fails to perform his contractual


                                             6
duties is ordinarily not liable in tort because, as a general tort rule, “there is no duty that

obligates one person to aid or protect another.” Williams, 429 Mich at 498-499.4 As a

result, when a defendant completely fails to perform his contractual obligations, “[w]hat

we are left with is defendant’s failure to complete his contracted-for performance,” which

“is not a duty imposed by the law upon all, the violation of which gives rise to a tort

action” but, instead, is “a duty arising out of the intentions of the [contracting] parties

themselves and owed only to those specific individuals to whom the promise runs.” Hart

v Ludwig, 347 Mich 559, 565-566; 79 NW2d 895 (1956).

       In contrast, cases that recognized a cause of action in tort arising out of the

negligent performance of a contract by a defendant “generally involve[d] a separate and

distinct duty imposed by law for the benefit of the plaintiff that provide[d] a right to

maintain [the] action without regard to whether there was a contractual relationship

between the plaintiff and the defendant.” Ferrett, 438 Mich at 245. This separate and

distinct duty “imposed by law” could arise by operation of a statute or under the “basic

rule of the common law, which imposes on every person engaged in the prosecution of

any undertaking an obligation to use due care, or to so govern his actions as not to

unreasonably endanger the person or property of others.” Clark, 379 Mich at 261; see,

also, Rinaldo’s Constr, 454 Mich at 84; Parker v Port Huron Hosp, 361 Mich 1, 11; 105

NW2d 1 (1960) (“It should be noted that . . . at the common law . . . the general rule has

been that one is liable for his negligence or tortious acts.”). Thus, in cases alleging

4
  See, also, 1 Torts: Michigan Law & Practice (2d ed), § 10.18, p 10-23. But see
Williams, 429 Mich at 499 (noting the existence of an exception to this general rule when
there is a special relationship between the parties).



                                              7
misfeasance of contractual obligations, although there was a contract, it “merely create[d]

the state of things which furnishe[d] the occasion of the tort.” Clark, 379 Mich at 261.

       This Court, however, has recognized that determining whether an action in tort can

arise out of a contractual promise is often largely semantic and difficult to discern.

Rinaldo’s Constr, 454 Mich at 83; Hart, 347 Mich at 564-565. In Fultz, a majority of

this Court recognized the often “slippery distinction” between misfeasance and

nonfeasance    of   contractual    obligations   and    attempted    to    disentangle     the

misfeasance/nonfeasance dichotomy by shifting the focus to whether the particular

defendant owed a duty to the plaintiff. Fultz, 470 Mich at 467 (quotation marks and

citation omitted). Noting that this Court had described a tort action arising from the

misfeasance of contractual obligations as a “‘violation of a legal duty separate and

distinct from the contractual obligation,’” the Fultz majority explained that this “‘separate

and distinct’ definition of misfeasance” offered better guidance in determining whether a

negligence action based on a contract and brought by a third party could lie. Id., quoting

Rinaldo’s Constr, 454 Mich at 84. Accordingly, after Fultz, courts were to forgo the

misfeasance/nonfeasance distinction and, instead, employ a “‘separate and distinct’ mode

of analysis” to determine the threshold question: “whether the defendant owed a duty to

the plaintiff that is separate and distinct from the defendant’s contractual obligations.”

Fultz, 470 Mich at 467; see, also, 1 Torts: Michigan Law and Practice (2d ed), § 10.18,

p 10-24. Under this analysis, an action would lie in contract if it was based solely on a

defendant’s failure or refusal to perform a contractual promise. In contrast, an action

could lie in either contract or in tort if a “defendant negligently performs a contractual

duty or breaches a duty arising by implication from the relation of the parties created by


                                             8
the contract . . . .” Fultz, 470 Mich at 469. In the latter category of cases, however, no

tort liability would arise “for failing to fulfill a promise in the absence of a duty to act that

is separate and distinct from the promise made.” Id. at 470.

       Applying these principles, Fultz concluded that the plaintiff, who had slipped on a

snow- and ice-covered parking lot, did not have a negligence cause of action against the

contractor hired by the premises owner to plow and salt the lot because, in essence, the

plaintiff merely claimed that the contractor had breached its contract by failing to

perform its contractual duties. Id. at 468. Thus, because the plaintiff did not claim that

she was a third-party beneficiary of the contract between the defendant and the premises

owner or claim that the law otherwise imposed a duty on the defendant to complete the

contracted-for performance, the plaintiff had failed to plead a duty owed to her that was

independent, or “separate and distinct,” from the defendant’s contractual duty to the

premises owner. Id. at 463, 468. After explaining that the Fultz plaintiff alleged no duty

owed to her that was independent of the contract, this Court distinguished the facts of

Fultz from Osman v Summer Green Lawn Care, Inc, 209 Mich App 703; 532 NW2d 186

(1995), overruled in part on other grounds by Smith v Globe Life Ins Co, 460 Mich 446;

597 NW2d 28 (1999). The majority explained that Osman was factually similar, insofar

as the Osman plaintiff was injured when she slipped on ice that the Osman defendant had

contracted to remove from the premises owner’s property. However, the facts of Fultz

were distinguishable from the facts of Osman in a few significant respects: in Osman, the

defendant breached a duty owed to the plaintiff that was separate and distinct from its

contractual obligations when it created a “new hazard” in carrying out its snow-removal

duties. Specifically, in acting under the contract, the defendant moved snow to a portion


                                               9
of the premises that created a condition that it should have known would pose a danger to

individuals traversing the area. Fultz, 470 Mich at 468-469. In contrast to the plaintiff in

Osman, the Fultz plaintiff failed to establish the existence of a duty owed to her by the

defendant and, thus, could not meet the threshold requirement for bringing a negligence

action.     The plaintiff simply asserted that the defendant had failed to perform its

contractual obligations to the premises owner, which was insufficient to establish that the

defendant owed her a duty in tort. Id. at 468-469. Accordingly, the plaintiff’s remedy in

Fultz rested solely against the premises owner.

                             B. CLARIFICATION OF FULTZ

          Although Fultz clearly stated that a defendant’s legal duty to act must arise

separately and distinctly from a defendant’s contractual obligations, Fultz’s “separate and

distinct mode of analysis” has been misconstrued to, in essence, establish a form of tort

immunity that bars negligence claims raised by a noncontracting third party. This is due,

in part, to two orders from this Court, Mierzejewski, 477 Mich 1087, and Banaszak, 477

Mich 895. Courts have misconstrued Fultz’s test requiring a “separate and distinct duty”

by erroneously focusing on whether a defendant’s conduct was separate and distinct from

the obligations required by the contract or whether the hazard was a subject of or

contemplated by the contract.        See, e.g., Carrington v Cadillac Asphalt, LLC,

unpublished opinion per curiam of the Court of Appeals, issued February 9, 2010

(Docket No 289075); Hatcher, unpub op at 5; see, also, 1 Torts: Michigan Law and

Practice, § 10.18, p 10-25. This interpretation is incorrect because, in analyzing tort

actions based on a contract and brought by a noncontracting third party, Fultz directed

courts to focus on “[w]hether a particular defendant owes any duty at all to a particular


                                            10
plaintiff,” Fultz, 470 Mich at 467 (emphasis added), and, thus, generally required an

inquiry into whether, aside from the contract, “a defendant is under any legal obligation

to act for the benefit of the plaintiff,” Valcaniant, 470 Mich at 86 n 4.5 See also Davis,

568 F3d at 575-576.

      Thus, in determining whether an action in tort will lie, Fultz recast the test to focus

on whether any legal duty independent of the contract existed. Fultz, 470 Mich at 466.

Notably, in requiring courts to focus on whether a defendant owed a legal duty to the

plaintiff, Fultz directed courts to utilize the “‘separate and distinct’ definition of

misfeasance.” Id. at 467. In shifting the focus to this Court’s “separate and distinct

definition of misfeasance,” however, Fultz did not modify the aforementioned historical

understandings of this Court’s “separate and distinct mode of analysis.” Instead, Fultz

favorably cited Rinaldo’s Constr, 454 Mich at 84, and Ferrett, 438 Mich at 245, which,

like Fultz, focused on whether a legal duty independent of a contract existed, rather than



5
  While this Court’s orders in Banaszak and Mierzejewski may have understandably
caused confusion, as explained later in this opinion, Fultz did not purport to overrule
longstanding common law. Instead, Fultz intended to provide a simplified test to
disentangle the sometimes difficult distinction between misfeasance and nonfeasance by
directing courts to focus on the “‘separate and distinct’ definition of misfeasance,” as
previously recognized by this Court. Fultz, 470 Mich at 467. Notably, the Banaszak and
Mierzejewski orders only cited Fultz and did not claim to extend it. Moreover, Fultz did
not claim to overrule the common law, and, just as “legislative amendment of the
common law is not lightly presumed,” Dawe v Dr Reuven Bar-Levav & Assoc, PC, 485
Mich 20, 28; 780 NW2d 272 (2010) (quotation marks and citation omitted), this Court
does not heedlessly modify the common law. Accordingly, to the extent that Banaszak
and Mierzejewski have been misconstrued to support an overly expansive reading of
Fultz, we note that such an interpretation is incorrect and reject it as inconsistent with
Fultz.



                                            11
whether defendant’s conduct was separate and distinct from the tasks required by the

contract or whether the hazard was contemplated by the contract. Davis, 568 F3d at 576.

       Determining whether a duty arises separately and distinctly from the contractual

agreement, therefore, generally does not necessarily involve reading the contract, noting

the obligations required by it, and determining whether the plaintiff’s injury was

contemplated by the contract. Id. Instead, Fultz’s directive is to determine whether a

defendant owes a noncontracting, third-party plaintiff a legal duty apart from the

defendant’s contractual obligations to another. Fultz, 470 Mich at 461-462. As this

Court has historically recognized, a separate and distinct duty to support a cause of action

in tort can arise by statute, Clark, 379 Mich at 261, or by a number of preexisting tort

principles, including duties imposed because of a special relationship between the parties,

see, e.g., Williams, 429 Mich at 499, and Fultz, 470 Mich at 468 n 4, and the generally

recognized common-law duty to use due care in undertakings, see, e.g., Clark, 379 Mich

at 261; Hart, 347 Mich at 564. As this Court has explained:

              Cases recognizing a right to maintain an action in tort arising out of
       a breach of contract by the defendant, generally involve a separate and
       distinct duty imposed by law for the benefit of the plaintiff that provides a
       right to maintain an action without regard to whether there was a
       contractual relationship . . . . In Clark [379 Mich at 261-262], the duty
       “imposed by law” was “[t]he general duty of a contractor to act so as not to
       unreasonably endanger the well-being of employees of either
       subcontractors or inspectors, or anyone else lawfully on the site of the
       project . . . .” [Ferrett, 438 Mich at 245-246 (second alteration in Ferrett).]

Stated another way, under the “separate and distinct mode of analysis,” “‘[e]ntering into a

contract with another pursuant to which one party promises to do something does not

alter the fact that there [exists] a preexisting obligation or duty to avoid harm when one



                                             12
acts.’” Rinaldo’s Const, 454 Mich at 84, quoting Prosser & Keeton, Torts (5th ed), § 92,

pp 656-657; see, also, Davis, 568 F3d at 575, 577.

       Thus, under Fultz, while the mere existence of a contractual promise does not

ordinarily provide a basis for a duty of care to a third party in tort, “the existence of a

contract [also] does not extinguish duties of care otherwise existing . . . .” 1 Torts:

Michigan Law and Practice, § 10.18, p 10-25; see, also, Fultz, 470 Mich at 468-469.

Fultz did not extinguish the “simple idea that is embedded deep within the American

common law of torts . . . : if one ‘having assumed to act, does so negligently,’ then

liability exists as to a third party for ‘failure of the defendant to exercise care and skill in

the performance itself.’” Davis, 568 F3d at 575, quoting 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, Davis, 568 F3d at 577.

See, also, Churchill v Howe, 186 Mich 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

noncontracting 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




                                              13
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.

                                    C. APPLICATION

       Unlike the plaintiff’s cause of action in Fultz, 470 Mich at 468-469, plaintiff’s

cause of action in this case was not brought solely on the basis of defendant’s failure to

perform its contractual obligations to the general contractor. Instead, plaintiff claims that

defendant breached the common-law duty to exercise reasonable care and avoid harm

when one acts. Clark, 379 Mich at 261; Rinaldo’s Constr, 454 Mich at 84. Defendant’s

motion for summary disposition, however, was raised and decided on the basis of a

misinterpretation of Fultz. Specifically, defendant’s motion was brought exclusively

under the erroneous belief that defendant owed no duty to plaintiff because defendant’s

performance and the hazards associated with that performance were the subject of

defendant’s contract with the general contractor.       Because defendant’s motion was

brought solely under the mistaken belief that Fultz extinguished preexisting common-law

duties, we need not and do not preemptively decide whether this particular plaintiff was

owed a duty of care under the common law.

                                   IV. CONCLUSION

       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


                                             14
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. Accordingly, we reverse the judgment of the Court of Appeals and

remand this case to the trial court for further proceedings that are consistent with this

opinion.


                                                        Michael F. Cavanagh
                                                        Robert P. Young, Jr.
                                                        Marilyn Kelly
                                                        Stephen J. Markman
                                                        Mary Beth Kelly



        HATHAWAY, J. I concur in the result only.


                                                        Diane M. Hathaway


        ZAHRA, J., did not participate because he was on the Court of Appeals panel in this
case.




                                            15
