"The fault lies, not in our facts, but in our Fultz."--William Shakespeare, Julius Caesar
At the recent MAJ Premises Liability Seminar, I shared the dias with Don Fulkerson, an esteemed Appeals specialist, who spoke on the effects of a Michigan Supreme Court case called, Fultz v. Union-Commerce Associates, 470 Mich 460 (2004).
In Fultz, the plaintiff, Ms. Fultz, slipped and fell in an icy parking lot. She sued the owner of the lot and a default was entered against him. She also sued the snow removal contractor, CML, for failing to plow and salt the parking lot. A jury awarded damages to Ms. Fultz holding that the Defendant contractor owed a common law duty to perform their contract in a reasonable manner and that they breached the duty by not performing their contractual obligation. The appellate court affirmed. The Michigan Supreme Court granted leave to appeal and reversed the lower court.
In Fultz, the Supreme Court held that a contractor is only liable for injuries sustained by a third party if they owe a duty that is “separate and distinct” from their contractual obligations. The Court explained that this separate and distinct duty arises only when a contractor creates a new hazard. A general common law duty to perform the contract in a reasonable manner no longer exists. An excellent analysis of the Fultz case can be found in a piece written by Victoria Shackelford, Fultz v. Union-Commerce Associates: The Supreme Court’s “Separate and Distinct” Fallacy.
At the seminar, Mr. Fulkerson became quite animated about the case and the damage it has done to innocent accident victims. He also stated that since it was decided in 2004, no other state Court, dealing with a similar issue, has cited it as persuasive. In an idle moment after the seminar, as I often do, I consulted YouTube, and found this clip, quite ironically, an insurance company ad:
I wrote to Don, asking whether, under Fultz, the trash removal company would have any liability to the car owner. Don's answer begins, "As indicated at the seminar, there are many who would argue that Fultz would bar the car owner’s claim, because the injury occurred while the contractor was performing the trash-removal contract."
YIKES.
Don did say he thought the he could argue that the situation came within an exception to Fultz that might prevent dismissal, but based on my experience with Michigan review Courts, my money is on the trash removal company.
Things have come to a pretty pass in Michigan, have they not? The YouTube clip ends with a screen shot stating "Life is full of surprises." I don't think they were referring to the surprise of the car owner when his case against the trash removal company was thrown out like the old stove that crushed his "ride."
"The role of judges is not to 'do good.'"--Michigan Supreme Court Justice Robert Young, May, 2009. Mission accomplished.
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