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Blind assisted living resident can sue one of two contractors who caused his fall

Christopher Tucker was a legally blind resident at  Mavalena Assisted Care, LLC when he was hurt in 2005.  He was being guided out of the home by a care worker walking behind him, when he tripped and fell over a tool box left in front of the exit by  Richard Carson.  Mr. Carson was on the property as a subcontractor for Vincent Pipitone, d/b/a Pro Built Construction.  Carson was placing vinyl siding on the structure when he left the tool box in front of the doorway.

Tucker sued Pipitone, the general contractor, alleging that he failed to maintain a safe work site.  He sued Carson for negligence in leaving the box at the entryway.  The lower court dismissed the claim against Pipitone, but refused to dismiss Carson.  Five years later,  Tucker is still waiting for a trial while Carson's appeal is being heard.

The Court of Appeals concluded this month that Pipitone and ProBuilt owed no duty to Tucker, because their duty to maintain a safe job site arose out of their contract with the owner of the facility:  under an Engler Majority decision from several years ago, their contract duty arguably renders them immune from the normal duty to exercise due care for other persons' safety. 

The Court refused to provide the same immunity to Carson, however.  It noted that separate and apart from his contractual duty to hang siding, he owed a distinct duty to third-parties not to commit independent acts of negligence.  Since leaving the tool box in the doorway was not a violation of the contractual duty, it fell under the common law "general obligation on all persons to perform actions reasonbly in light of the apparent risk to others."  [citing a 1967 case, Moning v. Alfono]

If this all sounds unduly complicated and a little nonsensical, blame the Engler justices on the Supreme Court:  they overturned 100 years of common law in the Fultz case  by creating "contract immunity" for contractors.  In essence, the case is now routinely cited to stand for the proposition that taking on a contract duty renders the actor immune from his negligence toward third-parties. 


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