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Families of fire victims cannot sue oxygen supplier who continued deliveries to "careless smoker"

The agents of Senior Home Health Care, Inc.  apparently observed that one Mr. Renwick was carelessly smoking in close proximity to the oxygen they were delivering to him.  They apparently made record of this fact, but continued deliveries of oxygen for 17 months, until Renwick caused a fatal apartment fire in which the plaintiff families suffered injuries and fatalities.  The families then filed suit against Senior Home Health, arguing that it was negligent to continue providing oxygen to Renwick after determining that he would not stop carelessly smoking near the oxygen.

The families' claims were dismissed by the Court of Appeals.  The judges pointed out that under the Fultz decision of the Engler Michigan Supreme Court majority, no matter how negligent Senior Home Health was, its contract with Renwick protected it from liability to third-parties.  Because the defendant's negligence related to duties performed under the contract with Renwick to provide oxygen, and did not create a new, separate and distinct danger, the court held that the foreseeable victims of defendant's negligence cannot sue. 

The Engler Majority rationalization for this holding is a unique interpretation of the law which is recognized in no other U.S. jurisdiction.  Indeed, the idea that a person is relieved of his duty of reasonable care by assuming an explicit contractual duty to a third-party is repugnant to most judges, scholars and even defense attorneys. Hopefully, the plaintiffs in Hatcher, et al., v. Senior Home Health, Inc., will appeal and persuade the Michigan Supreme Court to restore the long-standing previous law on this topic.

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