Zamzam Fawaz v. Younis Enterprises LLC
330959
| Mich. Ct. App. | May 18, 2017Background
- Fawaz slipped on ice in the Petsmart parking lot; she sued the snow-removal contractor Aces 4 Season (which contracted with Younis Enterprises) for negligence. Younis was later dismissed from the appeal.
- Aces moved for summary disposition under MCR 2.116(C)(8) and (C)(10), arguing it owed no duty to Fawaz independent of its contract with Younis.
- The trial court granted summary disposition for Aces and dismissed the case with prejudice; Fawaz appealed the duty determination.
- Key factual records before the court included the parties’ contract, Aces’s maintenance log, weather records, and deposition transcripts (including plaintiff and her sister); Aces’s owner’s deposition was not part of the lower-court record but was reviewed on appeal for context.
- The central legal question was whether Aces owed a separate, common-law tort duty to Fawaz (a noncontracting third party) beyond its contractual obligations to Younis — i.e., whether its maintenance created a new hazard or otherwise breached a duty of care.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Aces owed a duty of care to a noncontracting parking-lot user | Fawaz: Aces undertook maintenance and thus owed a common-law duty to exercise due care to invitees; she was an invitee/third-party beneficiary | Aces: No independent duty existed; it did not create a new hazard and fulfilled contractual maintenance, so no tort liability | Court: No independent duty to Fawaz; summary disposition affirmed |
| Whether performance created a new hazardous condition (misfeasance) | Fawaz: Large icy area and sister’s testimony imply inadequate salting — suggests negligent undertaking | Aces: Records show plowing/salting; no evidence it created a new or dangerous condition | Court: Record lacks evidence Aces created a new hazard or acted negligently in its undertaking |
| Whether Fawaz was a third-party beneficiary of the contract | Fawaz: As an invitee she was an intended beneficiary of the snow-removal contract | Aces: Contract shows no intention to confer direct benefit on third parties; no contract-based duty to Fawaz | Court: No contractual language creating third-party beneficiary status; claim abandoned for lack of authority |
| Whether Aces’s summary-disposition motion met its burden under MCR 2.116(C)(10) | Fawaz: Aces failed to sufficiently support its motion | Aces: Produced contract, maintenance log, and reliance on deposition/filings showing no duty/breach | Court: Aces met its production burden by negating an essential element (duty); motion properly supported |
Key Cases Cited
- Fultz v. Union-Commerce Associates, 470 Mich. 460 (Mich. 2004) (contractor who undertakes snow removal may owe a common-law duty to third parties but courts must ask whether any independent duty exists)
- Loweke v. Ann Arbor Ceiling & Partition Co., LLC, 489 Mich. 157 (Mich. 2011) (clarifies Fultz: focus on whether any independent legal duty to a noncontracting third party exists; distinguishes misfeasance vs. nonfeasance)
- Case v. Consumers Power Co., 463 Mich. 1 (Mich. 2000) (elements of negligence: duty, breach, causation, damages)
- Schmalfeldt v. North Pointe Insurance Co., 469 Mich. 422 (Mich. 2003) (statutory and common-law principles governing third‑party beneficiary status under MCL 600.1405)
- McLean v. Dearborn, 302 Mich. App. 68 (Mich. Ct. App. 2013) (standard of review for summary disposition)
- Lowrey v. LMPS & LMPJ, Inc., 500 Mich. 1 (Mich. 2016) (movant satisfies MCR 2.116(C)(10) by producing evidence that negates an essential element or shows nonmoving evidence is insufficient)
- Osman v. Summer Green Lawn Care, Inc., 209 Mich. App. 703 (Mich. Ct. App. 1995) (contractor created new hazard by placing snow where it endangered users)