The Michigan Supreme Court, in Loweke v Ann Arbor Ceiling (2011), took a significant step toward limiting the devastating effect of a previous case called Fultz v Union Commerce (2004).
Fultz saw the Court establishing a restrictive rule as to when an injured party could sue a person or company for negligence during that person or company’s performance of a contract with a third person or company. The Fultz “rule” was that an injured party would not be permitted to sue for recovery of the damage caused by the injuries unless the injured party could prove that a duty existed “separate and distinct” from that owed the third person or company under the contract.
Because the negligence of a contractor while performing under the contract tends to be while performing activities in furtherance of the contract, the effect of this rule was to create a new immunity for contractors. No matter how sloppy or dangerously their work was, and no matter how foreseeably this sloppiness or dangerous behavior might hurt an unsuspecting member of the public, because it occurred during the performance of a contract for a third person or company, it was not performed “separate and distinct” from those activities contemplated by the contract.
In the Loweke opinion, the Supreme Court indicated that it had never meant for the Fultz analysis to overturn the age old line of cases holding that anyone who undertook an activity was under a duty to the public not to do so negligently. This ruling will have the beneficial effect of forcing contractors to be more careful not to injure members of the public by negligent acts, or be forced to answer to a lawsuit brought by whoever they might negligently injure.