STEVEN P OSTASIEWSKI V EARL R GARNERAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
STEVEN P. OSTASIEWSKI and LYNN S.
July 24, 1998
Saginaw Circuit Court
LC No. 94-004565 NZ
CJE CORPORATION doing business as HMA
HOME INSPECTION SERVICE,
EARL R. GARNER, KAY F. GARNER, and
ROBERT VAN AUKEN doing business as
VAN AUKEN CONSTRUCTION,
Before: Bandstra, P.J., and Griffin and Young, Jr., JJ.
In this negligence action, defendant CJE appeals by right from a judgment in favor of plaintiffs
for $54,415.24, which was entered following a jury trial. Because we conclude that summary
disposition should have been granted on this negligence claim, we reverse.
Defendant argues that the trial court erred in refusing to grant its pretrial motion for summary
disposition pursuant to MCR 2.116(C)(8). It maintains that under Michigan law, an action in tort
requires a breach of duty separate and distinct from a breach of contract, and defendant’s sole duty to
plaintiffs in the instant case was purely contractual in nature. We agree.
Although the trial court properly found that it was defendant CJE’s misfeasance, not its
nonfeasance, that allegedly caused damage to plaintiffs, the trial court erred in refusing to grant
defendant’s motion for summary disposition regarding plaintiffs’ negligence claim. A relationship giving
rise to a duty can arise from a contract, Clark v Dalman, 379 Mich 251, 259; 150 NW2d 755
(1967); Antoon v Community Emergency Medical Service, Inc, 190 Mich App 592, 595; 476
NW2d 479 (1991). However, not every contractual obligation can lead to a duty under tort law.
Rinaldo’s Construction Corp v Michigan Bell Telephone Co, 454 Mich 65, 82; 559 NW2d 647
(1997); Hart v Ludwig, 347 Mich 559, 563; 79 NW2d 895 (1956). As a general rule, there must be
some breach of duty distinct from the breach of contract in order to recover in tort. Id. In the instant
case, had defendant been a contractor who negligently fixed plaintiffs’ house and had this negligence
resulted in either damage to the house or personal injury to plaintiffs, an action for negligence would be
proper. Here, however, defendant’s negligence did not result in any physical harm to plaintiffs or their
property. The harm already existed when defendant’s employee inspected the house. Defendant’s
negligence resulted only in an “intangible economic loss.” This harm was not one which arose apart
from the contract itself. Rinaldo’s, supra at 85. Therefore, the trial court should have granted CJE’s
motion for summary disposition pursuant to MCR 2.116(C)(8) regarding plaintiffs’ negligence claim.
Since we hold that the trial court should have granted defendant’s motion for summary
disposition, we need not address the other issues raised by defendant.
/s/ Richard A. Bandstra
/s/ Richard Allen Griffin
/s/ Robert P. Young, Jr.