893 F.3d 359
6th Cir.2018Background
- Leone, an A.K. Steel employee, was injured when a ~40-pound piece of slag fell inside a degasser while he was relining it with new face brick.
- A.K. Steel had hired BMI Refractory Services to perform a one-day tearout of deteriorated face brick; BMI inspected the vat (including the alloy chute) and did not observe loose slag.
- The slag that struck Leone fell 21 days after BMI completed its work; parties agree the slag preexisted BMI’s departure (no new slag could have formed in the interim).
- Leone sued BMI for negligence, alleging BMI negligently failed to remove pre-existing loose slag; his wife asserted a derivative loss-of-consortium claim.
- The district court granted summary judgment for BMI, holding BMI owed no duty to Leone because it did not create a “new hazard” inside the degasser.
- The Sixth Circuit reversed, holding Michigan law recognizes a contractor’s separate tort duty based on voluntary assumption of performance even when the contractor did not create a new hazard; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BMI owed Leone a "separate and distinct" tort duty to third parties | BMI assumed a duty by performing contract work and inspecting the chute; duty arises from voluntary assumption to act and requires nonnegligent performance | No duty because BMI did not create a new hazard or exacerbate a risk; plaintiff's claim is merely nonperformance of contractual duties | Reversed: Michigan law permits a separate tort duty based on voluntary assumption; creating a new hazard is one way but not the only way to establish such a duty |
Key Cases Cited
- Loweke v. Ann Arbor Ceiling &nbs p;Partition Co., 809 N.W.2d 553 (Mich. 2011) (adopts "separate and distinct" duty analysis and recognizes preexisting duty to avoid harm when one acts)
- Fultz v. Union-Commerce Assocs., 683 N.W.2d 587 (Mich. 2004) (contractor generally owes no tort duty for mere nonperformance of contract; duty may arise when one voluntarily undertakes act)
- Clark v. Dalman, 150 N.W.2d 755 (Mich. 1967) (common-law principle imposing duty to exercise due care when undertaking an activity)
- Osman v. Summer Green Lawn Care, Inc., 532 N.W.2d 186 (Mich. Ct. App. 1995) (contractor created a new hazard via snow placement, giving rise to tort duty)
- Davis v. Venture One Constr., Inc., 568 F.3d 570 (6th Cir. 2009) (contractor-created new hazard can support duty to third parties)
- Rinaldo's Constr. Corp. v. Mich. Bell Tel. Co., 559 N.W.2d 647 (Mich. 1997) (recognizes obligation to avoid harm when performing contracted work)