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Bicyclist wins appeal; case against sidewalk contractor is reinstated

Maureen Salveta sued the Florence Cement Company in Macomb County Circuit Court after she was badly hurt in a bicycle accident.  She claimed that she went over her handlebars when she encountered an excavation created by the Defendant in the MDOT sidewalk. She claimed that there was no signage, warning or barricading alerting approaching bicyclists of the dangerous excavation.

The Defendant asked the Court to dismiss the case, arguing that it owed no duty to Salveta.  The company claimed that its only duty was a contractual obligation to MDOT, relying on the Fultz decision of the Republican majority of Michigan's Supreme Court.  Under a fair reading of that much-criticized decision, a contracting party who is obligated to perform a contract safely owed no duty to third-parties who suffered injury as a result of the contractor's negligence.  The trial judge granted the Defendant's motion and dismissed the case.

In the interim, the Republican Supreme Court majority took heed of the criticism of Fultz and attempted to re-explain its decision.  Even insurance defense attorneys had questioned the logic pursuant to which executing a contract containing safety requirements would relieve an actor of his or her common law duty to act.  reasonably.  In an unusual retreat from its insurance-oriented activism, the Republican majority issued a reversal of the Fultz opinion in Loweke v. Ann Arbor Ceiling.  Claiming that judges and attorneys had misunderstood Fultz, the Loweke Court held that it had never intended top release contractors from their pre-existing common law duty of care; rather, the Justices suggested that Fultz merely confirmed that the safety provisions in a contract did not create new duties to innocent third-parties.

Applying this reasoning to Ms. Salveta's claim, the Court of Appeals reversed the Macomb County Circuit judge and reinstated the bicyclist's claim.  It noted that the contractor owed a "separate and distinct duty" to users of the sidewalk.  When it created the dangerous condition represented by the excavation, without taking appropriate safety precautions, it violated a duty that was broader than the contractual obligations to MDOT.

Thompson O’Neil, P.C.
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