RUTH E WILLIAMS V ARAMARK MGT SERVICES LTD PARTNERSHIP
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STATE OF MICHIGAN
COURT OF APPEALS
RUTH E. WILLIAMS,
UNPUBLISHED
March 3, 2009
Plaintiff-Appellant,
v
No. 281741
Wayne Circuit Court
LC No. 06-618398-NO
ARAMARK MANAGEMENT SERVICES
LIMITED PARTNERSHIP,
Defendant-Appellee.
Before: Saad, C.J., and Davis and Servitto, JJ.
PER CURIAM.
Plaintiff, Ruth Williams, appeals the trial court’s order that granted summary disposition
to defendant, Aramark Management Services Limited Partnership. For the reasons set forth
below, we affirm.
I. Facts and Procedural History
On September 12, 2005, plaintiff fell on the cafeteria floor at Baylor-Woodson
Elementary School in Inkster. At the time, plaintiff was a member of the Inkster school board
and was at the school to help with a district enrollment fair. Immediately before the incident,
Debra Payne, an employee of Aramark, had mopped the cafeteria floor. Plaintiff claims she
slipped and fell when she stepped on water that remained on the floor after Payne finished
mopping. Plaintiff maintains that she sustained a severe ankle fracture that required surgery.
At the relevant time, the Inkster Public Schools contracted with Aramark for Aramark to
provide various maintenance services for school buildings in the district. Plaintiff filed her
complaint against Aramark and alleged that the company failed to properly maintain the floor or
adequately warn of the danger or condition of the wet floor. Plaintiff further alleged that she is
an intended third-party beneficiary of the maintenance contract between Aramark and the Inkster
Public Schools and that Aramark breached the contract.
Aramark filed a motion for summary disposition under MCR 2.116(C)(10) and argued to
the trial judge that plaintiff’s case should be dismissed because its contract with the Inkster
Public Schools contains no language that created any duty regarding the plaintiff. Aramark
maintained that plaintiff’s third-party beneficiary claim must also fail because, at best, she was
an incidental beneficiary of the maintenance contract, not an intended third-party beneficiary. In
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response, plaintiff asserted that, as an elected school board official, she is an intended third-party
beneficiary of the maintenance contract. She further argued that Aramark is liable for her injury
because Payne created a new hazard or increased the risk of injury when she mopped the floor.
The trial court agreed with Aramark and granted its motion for summary disposition.
Thereafter, plaintiff filed a motion for reconsideration and averred that Aramark’s
attorney made misleading arguments to the trial court. For the first time, plaintiff also asserted
the theory that she is a first party to the maintenance contract between Aramark and the Inkster
Public Schools . According to plaintiff, as an elected school board official, “she was both a party
to the agreement and clearly a ‘beneficiary’ of that contract.” The trial court denied plaintiff’s
motion for reconsideration by praecipe order on October 12, 2007.
II. Analysis
A. Motion for Reconsideration Regarding Plaintiff’s New Legal Theory
Plaintiff concedes that she did not raise her claim that she is a party to the contract
between Aramark and the Inkster Public Schools until she filed her motion for reconsideration,
but she claims she is nonetheless entitled to relief under that theory. This Court reviews a trial
court’s decision on a motion for reconsideration for an abuse of discretion. Churchman v
Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000).
Our Court has held that it is not an abuse of discretion for a trial court to reject a claim
first raised in a motion for reconsideration. As the Court explained in Charbeneau v Wayne
County Gen Hosp, 158 Mich App 730, 733; 405 NW2d 151 (1987):
Generally, a motion for rehearing or reconsideration must demonstrate a
“palpable error by which the court and the parties have been misled.” MCR
2.119(F)(3). The grant or denial of a motion for reconsideration rests within the
discretion of the trial court. Id. We find no abuse of discretion in denying a
motion resting on a legal theory and facts which could have been pled or argued
prior to the trial court’s original order. [See also, Churchman, supra; Woods v
SLB Prop Mgt, 277 Mich App 622, 629-630; 750 NW2d 228 (2008).]
In another premises liability case, Bentfield v Brandon’s Landing Boat Bar, unpublished opinion
per curiam of the Court of Appeals, issued August 31, 2004 (Docket No. 248795), this Court
ruled that the trial court wrongly denied the plaintiff’s motion for reconsideration though, for the
first time in his motion for reconsideration, he raised his argument that defendant owed him a
statutory duty under MCL 554.139 to keep the premises in reasonable repair. However, Judge
Meter dissented from the majority’s holding and opined:
Plaintiff is not entitled to reversal with respect to this issue. Indeed, he
failed to preserve the issue concerning MCL 554.139 because he did not mention
the statute, with its corresponding inapplicability of the open and obvious defense,
during the summary disposition proceedings, despite the fact that the Woodbury
decision was released before plaintiff filed his brief in response to defendants’
motion for summary disposition. See, generally, Charbeneau[, supra at 733]. He
raised the issue only in a motion for rehearing and reconsideration. As noted in
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MCR 2.119(F)(3), to be entitled to relief with respect to a motion for rehearing or
reconsideration, “[t]he moving party must demonstrate a palpable error by which
the court and the parties have been misled and show that a different disposition of
the motion must result from correction of the error.” Here, no palpable error
occurred, because plaintiff did not even allege a violation of MCL 554.139 until
he filed his motion for rehearing and reconsideration. See Charbeneau, supra at
733 (“[w]e find no abuse of discretion in denying a motion resting on a legal
theory and facts which could have been pled or argued prior to the trial court's
original order”). Appellate relief is unwarranted. [Emphasis in original.]
In Bentfield v Brandon’s Landing Boat Bar, 474 Mich 1005; 708 NW2d 108 (2006), our
Supreme Court reversed the majority’s ruling on the motion for reconsideration and specifically
agreed with Judge Meter’s reasoning. The above cases establish that a trial court does not abuse
its discretion when it denies a claim raised for the first time in a motion for reconsideration.
Here, for the same reason, the trial court did not abuse its discretion when it declined to grant
plaintiff’s motion for reconsideration that contained her new theory of liability, and we need not
address her first party theory on appeal.1
B. Summary Disposition
Plaintiff avers that the trial court erroneously granted summary disposition under Fultz v
Union-Commerce Associates, 470 Mich 460; 683 NW2d 587 (2004).2 As our Supreme Court
explained in Fultz, supra at 463:
It is well-established that a prima facie case of negligence requires a
plaintiff to prove four elements: duty, breach of that duty, causation, and
damages. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000);
Riddle v McLouth Steel Products Corp, 440 Mich 85, 96 n 10; 485 NW2d 676
(1992). The threshold question in a negligence action is whether the defendant
owed a duty to the plaintiff. “It is axiomatic that there can be no tort liability
unless defendants owed a duty to plaintiff.” Beaty v Hertzberg & Golden, PC,
456 Mich 247, 262; 571 NW2d 716 (1997).
1
We also note that, in the trial court, plaintiff failed to adequately brief her first party argument,
thus adding an additional ground for the trial court to reject her claim. In the motion, plaintiff
merely asserted that, as a member of the school board, she is a party to the agreement. Plaintiff
cited no case law or record evidence to support her assertion and she set forth no legal argument
to establish her status as a party to the contract. We further note that the contract at issue is with
the public body, the Inkster Public Schools, not individual members that comprise the school
board.
2
This Court reviews a trial court’s decision to grant a motion for summary disposition de novo.
Manuel v Gill, 481 Mich 637, 643; 753 NW2d 48 (2008). Whether a defendant owes a duty to
the plaintiff is a question of law that this Court also reviews de novo. Fultz, supra at 463.
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In Fultz, the plaintiff slipped and fell while walking on a snow and ice-covered parking lot. The
defendant, Creative Maintenance Limited (CML), had contracted with the premises owner to
provide snow removal services. Fultz, supra at 462. On the day of the plaintiff’s fall, CML had
not plowed the parking lot in 14 hours and had not laid down salt. Id. The plaintiff sued CML,
but did not claim she was a third-party beneficiary of the contract between the snow removal
company and the premises owner. Id. at 463. Rather, she maintained that CML owed her a
common law duty to exercise reasonable care in performing its duties under the snow removal
contract. Id. at 463-464.
The Court clarified that, in this kind of negligence action, “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. According to the plaintiff, CML breached its duty to her by
failing to plow and salt as required by the contract. Id. at 468. Because the plaintiff failed to
allege a duty CML owed to her “independent of the contract,” the Court ruled that she failed “to
satisfy the threshold requirement of establishing a duty that CML owed to her under the ‘separate
and distinct’ approach . . . .” Id. As the Court in Fultz further explained:
[I]f defendant fails or refuses to perform a promise, the action is in
contract. If defendant negligently performs a contractual duty or breaches a duty
arising by implication from the relation of the parties created by the contract, the
action may be either in contract or in tort. In such cases, however, no 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. [ Fultz, supra at 469-470.]
The Fultz Court distinguished the situation in Osman v Summer Green Lawn Care, Inc,
209 Mich App 703; 532 NW2d 186 (1995), overruled on other grounds Smith v Globe Life Ins
Co, 460 Mich 446 (1999), because, in Osman, the snow removal company “created a new hazard
by placing snow ‘on a portion of the premises when it knew, or should have known or
anticipated, that the snow would melt and freeze into ice on the abutting sidewalk, steps, and
walkway, thus posing a dangerous and hazardous condition to individuals who traverse those
areas.’ ” Fultz, supra at 469, quoting Osman, supra at 704. According to the Court, the
defendant in Osman breached a duty separate and distinct from its contractual obligations by
creating the “new hazard.”
Pursuant to Fultz, to sustain her claim that Aramark breached a duty to plaintiff, she had
to establish that Aramark owed her a duty separate and distinct from its contract with the Inkster
Public Schools. Plaintiff has not alleged a duty that is separate and distinct from the
maintenance contract. Plaintiff essentially alleges that she was injured because Payne wetmopped the floor just before she walked across it. But Aramark’s duty to wet-mop the floor was
specifically contemplated in the contract. Plaintiff alleges that Payne created a “new hazard” by
wet-mopping the floor. However, plaintiff does not allege that Payne placed an unusually large
amount of water on the floor or any other conduct that would be considered the negligent
creation of a new hazard of the kind contemplated in Osman.
We further note that, in Mierzejewski v Torre & Bruglio, Inc, unpublished opinion per
curiam of the Court of Appeals, issued September 26, 2006 (Docket No. 269599), this Court
considered facts similar to those in Osman. In Mierzejewski, the plaintiff slipped and fell on ice
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in a parking lot. She sued the company that provided snow removal services and alleged that the
company “performed its contractual obligation in such a way that it created a new hazard and
increased the danger to plaintiff” by piling snow on landscaped curbed islands in and around the
parking lot. According to the plaintiff, the mounds of snow melted and refroze, creating frozen
puddles in areas frequented by pedestrians. This Court ruled that the trial court erroneously
granted summary disposition to the defendant snow removal contractor because the company
owed a separate and distinct duty to the plaintiff when it created a new hazardous condition
during the performance of its contract. However, our Supreme Court reversed the Mierzejewski
decision in Mierzejewski v Torre & Bruglio, Inc, 477 Mich 1087 (2007) and remanded the case
for entry of judgment in favor of the snow removal company. Citing Fultz, the Mierzejewski
Court opined:
The Court of Appeals erred in reinstating the plaintiffs’ claim on the basis
of a duty owed by the defendant to the plaintiffs. The defendant did not owe any
duty to the plaintiffs separate and distinct from the contractual promise made
under its snow removal contract with the premises owner.
Thus, while this Court’s holding in Mierzejewski suggests that, if Payne made the floor wet
during the course of Aramark’s contractual duty to mop, this may have created a “new hazard”
that is separate and distinct from the contract, the Supreme Court repudiated this reasoning and
reaffirmed that, under Fultz, a defendant performing an obligation under a contract does not owe
a duty to an injured plaintiff when the plaintiff alleges no duty independent of the contract with
the premises owner.3 Furthermore, when the conduct alleged was specifically set forth in the
agreement―the duty to mop the floor―Payne’s conduct cannot be considered the creation of a
“new hazard.”4 Aramark contractually agreed to mop the cafeteria floor and it owed no separate
and distinct duty to plaintiff.5
3
The unpublished opinions on which plaintiff relies also suggest that Payne did not create the
kind of “new hazard” for which Aramark may be held liable. Plaintiff showed no affirmative
conduct by Payne that created a new hazard of the kind contemplated in her cited cases.
4
Plaintiff also alleges that Payne created a new hazard by failing to place yellow warning signs
down to alert people that she had mopped the floor. However, a failure to warn of the
performance of her contractual duty to mop the floor is not actionable in tort because it does
create a new hazard.
5
Plaintiff repeatedly asserts that Scott Hamilton’s testimony and Thomas Maridada’s affidavit
establish that the maintenance contract was intended to directly benefit plaintiff and that
Maridada’s affidavit and that of another witness establish that Aramark created a “new hazard”
on the cafeteria floor. However, were we to accept plaintiff’s characterization of their testimony,
these would represent legal conclusions, not statements of fact. We do not allow witnesses to
testify about conclusions of law “because it is the exclusive responsibility of the trial judge to
find and interpret the applicable law.” People v Lyons, 93 Mich App 35, 45-46; 285 NW2d 788
(1979).
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Affirmed.
/s/ Henry William Saad
/s/ Deborah A. Servitto
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