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141168 - Loweke v Ann Arbor Ceiling

Richard Loweke and Sherri Loweke,
 
Steven E. Goren
 
Plaintiffs-Appellants,
 
v
(Appeal from Ct of Appeal)
 
 
(Wayne – Macdonald, K.)
 
Ann Arbor Ceiling & Partition Company, L.L.C.,
 
Ernest R. Bazzana
 
Defendant-Appellee.
 

​Plaintiffs-Appellants' Brief on Appeal>>
Plaintiffs-Appellants' Reply Brief>>

Defendant-Appellee's Brief on Appeal>>
Michigan Association for Justice's Amicus Curiae Brief>>
Michigan Defense Trial Counsel, Inc.'s Amicus Curiae Brief>>

Summary

​Richard Loweke was an electrician employed by Shaw Electric, one of the subcontractors on a construction project at Detroit Metro Airport. Ann Arbor Ceiling & Partition Company was a carpentry and drywall contractor on the project. According to Loweke, Ann Arbor Ceiling employees left sheets of cement board leaning in an unstable position against a corridor wall; while Loweke was working nearby, some of the boards fell onto Loweke’s leg, injuring him.

Loweke sued Ann Arbor Ceiling for negligence, but Ann Arbor Ceiling asked the trial court to dismiss his lawsuit. According to Ann Arbor Ceiling, Loweke’s allegations merely charged that the subcontractor had not performed its duties under the contract properly – not that it was liable to Loweke for negligence. Ann Arbor Ceiling pointed out that, under its contract, it was responsible for “unloading, moving, protecting, securing and dispensing of all materials and equipment at the Project site.” The contract also required Ann Arbor Ceiling to “arrange for delivery of its materials so as to prevent interruptions of or delay to its Work or the work of others.” Under Fultz v Union-Commerce Associates, 470 Mich 460 (2004), Ann Arbor Ceiling argued, it could only be held liable for injuries resulting from a duty to Loweke that is “separate and distinct” from its contractual obligations. Loweke responded that, by stacking the cement boards, Ann Arbor Ceiling created a new hazard, for which it could be held liable in tort. The trial court disagreed, and granted Ann Arbor Ceiling’s motion for summary disposition, dismissing Loweke’s case.

Loweke challenged the trial court’s summary disposition ruling at the Court of Appeals, but the Court of Appeals affirmed in an unpublished per curiamopinion. The appeals panel agreed with Ann Arbor Ceiling that no duty separate and apart from its contract had been breached, and that Loweke’s claim of the creation of a “new hazard” was not persuasive. “The alleged hazard was not outside of the construction zone and did not present any unique risk not contemplated by the contract,” the panel said. Loweke appeals.