Is a negligent actor immune from liability because it is acting under a contract with a third party?
The Fultz case re-surfaced again this week, when the Court of Appeals dismissed an injury claim brought by George Frommert against Teera Construction Company. Frommert fell with a collapsing scaffolding erected by Teera, a different sub-contractor on a building site, and claimed that Teera was negligent either in the erection of the scaffolding or in marking it out of service.
Teera claimed that Frommert could not sue it because negligent or not, it was acting under a contract with the general contractor. It relied on the Fultz decision of the so-called Engler Majority to hold that Teera was entitled to "contract immunity" and therefore owed not duty to Frommert. Itargued that it was, in essence, released from the common law duty of every person to act reasonably for the safety of others, because it had erected the scaffolding under a contract with a third-party. The Court of Appeals majority agreed and upheld the dismissal of Frommert's claim.In astrenuous dissent, Judge Gleicher emphasized the well-recognized, historic duty of every citizen to act with "due care" for the safety of others. She questioned why assuming an additional contract duty to a third person would operate, legally, to eliminate the underlying duty of every person to act reasonably. Gleicher noted ample Supreme Court precedent confirming that a contracting entity owes a "separate and distinct" duty to act reasonably so as not to injure third-parties. She pointed to the language of the best-known textbook on Negligence: "The incidental fact of the existence of the contract with A does not negative the responsibility of the actor when he enters upon a course of affimative conduct which may be expected to affect the interests of another person." She may be a voice in the dark, but she is an eloquent one with common sense.