Negligently stacked cement board injures work man; subcontractor who stacked is not responsible

Richard Loweke filed suit against Ann Arbor Ceiling and Partition Company after he was injured on a construction jobsite.  Twenty sheets (several hundred pounds) of cement board stacked against a hallway wall had fallen on Loweke, causing serious injury to his leg.  He sued the sub-contractor who delivered and stacked the cement board for negligence.  The Court of Appeals applied an Engler Majority interpretation of negligence law to invalidate Loweke's claim.  The judges cited the Fultz decision of the Engler Majority in ruling that when Ann Arbor, a subcontractor, signed a contract to deliver the cement board, it was relieved of its common law "duty of reasonable care" to third-parties, and thus owed no duty to Loweke.

The Fultz decision has been roundly criticized by virtually every authority or court that has considered it:  there is no sound reason in logic or policy for suggesting that being paid to assume a new contractual duty should relieve a party of his or her normal common law "duty of reasonable care."  The decision is simply a tool to deliver windfalls to liability insurers by relieving them of responsibility for debts that they have contracted to pay.