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Court criticizes, but reluctantly enforces "contract immunity"

Brandon Carrington was walking alongside an area of new highway construction, in the dark, when he stepped over a new "curb" into a deep hole.  He suffered injuries that resulted in surgery, and his family investigated the cause of his fall.  They found that he fell in to an area where one subcontractor, Cadillac Asphalt, had failed to backfill or barricade a deep hole adjacent to the new curb.  When Carrington sued, Cadillac argued that under the "Engler Majority's" new analysis of contract liability, Cadillac owed no duty to Carrington or the public in general, because its failure to backfill or barricade fell within the contractual duties it had assumed to the State of Michigan as part of the construction project.  In other words, Cadillac argued that because it was obligated to perform its duties safely under its contract with the State, it was relieved of any duty to act reasonably to protect innocent third-parties.

In its holding, the Court of Appeals noted that the Sixth Circuit Court of Appeals had rejected just such an analysis as that posed by Cadillac.  The federal judges presented with this argument had relied upon more than fifty years of Michigan jurisprudence to reassert the basic, common law principle that one acting under a contract owes a duty to everyone to act reasonably:  making a contract with someone doesn't relieve an actor of his duty to act with "due care" to avoid creating new hazards.  Although the Court of Appeals found this analysis persuasive and appropriate, they deemed that they were bound by the Engler Majority's two activist holdings that rejected such an analysis. 

Since Cadillac owed a duty to the state, under its contract, to act reasonably safely for the benefit of the public, it owed no duty to Carrington!  What a sad, semantic piece of political machination.  We understand that the Court of Appeals cannot overturn the abuses of the Engler Majority, however, we can hope that the Supreme Court will.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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