ETHEL KAMINSKI V JAMES HASKINS
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STATE OF MICHIGAN
COURT OF APPEALS
ETHEL KAMINSKI,
UNPUBLISHED
July 22, 2008
Plaintiff-Appellant,
v
JAMES HASKINS and KATHLEEN HASKINS,
No. 275117
Macomb Circuit Court
LC No. 2004-004739-NO
Defendants,
and
DILUSSO BUILDING COMPANY, INC.,
Defendant-Appellee.
Before: Gleicher, P.J., and O’Connell and Kelly, JJ.
GLEICHER, J. (concurring in part and dissenting in part).
I agree with the majority that plaintiff has not established a premises liability claim.
However, I respectfully dissent from the majority’s conclusion that Fultz v Union-Commerce
Associates, 470 Mich 460; 683 NW2d 587 (2004), affords a basis for granting summary
disposition to defendant DiLusso Building Company, Inc.
Plaintiff fell as she ascended a step at her son’s home. According to plaintiff, her left
foot “caught underneath” the top step leading to the home’s doorway, and “zoom, I fell.”
DiLusso built the home in 2001. A report submitted by plaintiff’s expert witness opined that the
height and depth of the home’s top step exceeded permissible measurements adopted under
Michigan’s residential building code, MCL 125.1504. Plaintiff’s complaint alleged that “as a
result of [the building code] violations, Plaintiff’s foot became stuck and caused her to fall.”
The parties did not address Fultz in their appellate briefs, and the trial court did not
consider Fultz when it granted defendant summary disposition. Although the Michigan Supreme
Court’s holding in Fultz rests on the existence of a contractual relationship, neither this Court nor
the trial court has reviewed the contract on which the majority relies. In my view, the majority
opinion’s “contract” theme, which is solely the majority’s creation, has nothing to do with this
case.
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In Fultz, the Michigan Supreme Court held that in tort actions “based on a contract,” the
“threshold question is whether the defendant owed a duty to the plaintiff that is separate and
distinct from the defendant’s contractual obligations.” Id. at 467. “If no independent duty exists,
no tort action based on a contract will lie.” Id. Because plaintiff here did not allege that DiLusso
breached a duty created by a contract, this simply is not a tort action “based on a contract.”
However, even if a contract exists that required DiLusso to construct the home in accordance
with applicable building codes, this still is not a Fultz case.
The central holding in Fultz was, “[N]o tort liability arises for failing to fulfill a promise
in the absence of a duty to act that is separate and distinct from the promise made.” Id. at 470
(emphasis supplied). Here, however, this Court cannot know whether plaintiff’s claim qualifies
as “separate and distinct from the promise made” because this Court never read the contract, and
therefore, cannot know what promises it contained. But regardless of the language comprising
the unread contract, DiLusso’s duty to build safe steps for the home did not arise from
contractual promises, but by operation of law. Plaintiff alleges that DiLusso bore a distinct legal
duty, consistent with Michigan’s residential building code, to construct safe steps that conformed
to certain size dimensions. DiLusso’s duty to craft the steps in compliance with Michigan’s
building code exists independently of any contract with the homeowners. Thus, even ignoring
the fact that the majority has created a ground for summary disposition that cannot be found in
the record, Fultz does not govern the outcome of this case.
The majority concludes its analysis with the observation that summary disposition is
appropriate because “there are no allegations that DiLusso breached any duty owed to [plaintiff]
independent of the contract between DiLusso and the Haskinses.” With this statement, the
majority sua sponte disposes of this case under MCR 2.116(C)(8), without the benefit of briefing
or trial court review of the controlling legal question. In my view, should this Court desire to
consider issues that reside entirely outside the parties’ briefs as a potential basis for granting
summary disposition premised on subsection (C)(8), the appropriate course would be to afford
plaintiff the opportunity to amend her complaint, pursuant to MCR 2.116(I)(5).
Although the trial court properly dismissed plaintiff’s premises liability allegation, I
would remand to the trial court to afford plaintiff an opportunity to further develop her claim
based on the alleged building code violations.
/s/ Elizabeth L. Gleicher
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