Court Overturns Contractor Tort Immunity
January 29, 2020
The Michigan Supreme Court has overturned a court of appeals decision holding that a contractor was not liable for harm caused by its negligence because the conduct in question was covered by contract.
The case, Loweke v. Ann Arbor Ceiling & Partition Co., centered on a claim by an electrical subcontractor’s employee who was injured when several cement boards fell on him. The employee claimed that a drywall contractor had negligently stacked the boards, causing his injuries.
Both the trial court and the court of appeals rejected the employee’s claim, holding that the drywall contractor’s liability was defined by its contract. Without a showing that the stacking of the boards was distinct from the drywall contractor’s contractual obligations, the lower courts held that there could be no claim based on negligence.
The Supreme Court reversed, holding that a plaintiff need not show that a contractor’s negligent acts were separate and distinct from its contractual obligations. Instead, the plaintiff need show only that the negligent contractor’s duties to it are separate and distinct from any contractual obligations. Because the common law imposes a duty on everyone to act without negligence, the Supreme Court reversed the dismissal of the plain‐tiff’s action.
Although the Supreme Court’s decision reflects an expansion in liability exposure for contractors, it also reflects an expansion of their rights to recover against others. For example, the 2008 decision in Keller Const., Inc. v. U.P. Eng’rs & Architects,Inc., No. 275379, 2008 WL 2665113 (Mich. Ct. App. July 8, 2008), affirmed dismissal of a contractor’s claim against an architect based on the same reasoning that the lower courts applied in Loweke. That decision does not appear to be good law at this point.