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Snow removal company that was allegedly negligent in removing snow owes no duty to patron

In Lynne Lane and Frederick Zwiefel's negligence action against Fairway Sales Company and Drubin's Lawn Care, the Michigan Court of Appeals refused to assess whether Drubin was negligent in removing snow from Fairway's parking lot.  Lane fell in a depression that served a parking lot drain, and she claimed that Drubin's negligence in how it plowed the lot created a "new" hazard to patrons.  If Drubin did not create a "new hazard," under the Engler Majority's interpretation of contract law, no party would owe a duty to patrons to exercise reasonable care in maintaining the lot, because Fairway had contracted with Drubin and Drubin owed no duty to third-parties.

The Court affirmed the lower court's dismissal of Drubin and ruled that Drubin did not create a "new hazard" as the Engler Majority defined that concept.  Rather, the court ruled that Drubin would owe a new hazard duty only if its contract created a duty to patrons that is "separate and distinct from its contract obligations."  In this case, as in most cases of this nature, the snow removal contract had no special provisions addressing third-parties' rights and therefore Drubin was relieved of any duty to act reasonably. 

Even the insurance defense bar has criticised this Engler Majority holding, from the 2004 Fultz v. Union-Commerce Association decision, noting that no other state relieves a contractor of the duty to act reasonably, simply because the contractor is working under a contract with a non-injured party.  In all other states and in Michigan prior to 2004, a contractor remained liable to third parties if he or she acted unreasonably and caused injury or harm.  The Fultz case had this ironic and illogical effect:  All people owe a duty to act reasonably for the safety of others.  Where this duty is supplemented by a contractual duty to a specific third-party, however, instead of assuming an additional duty, the contractor is relieved of a pre-existing duty to act "with reasonable care." 

Thompson O’Neil, P.C.
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