Hill v. Sears, Roebuck and Co , 492 Mich. 651 ( 2012 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. John O. Juroszek
HILL v SEARS, ROEBUCK AND CO
Docket Nos. 143329, 143348, and 143633. Argued May 9, 2012. Decided August 16, 2012.
Marcy Hill, Patricia Hill, and Christopher Hill brought an action in the Macomb Circuit
Court against Sears, Roebuck & Co., Sears Logistic Services, Inc., Merchant Delivery, Inc., Exel
Direct, Inc., Mark Pritchard, Timothy Dameron, and others, seeking to recover damages for
injuries and property damage incurred when Marcy Hill released natural gas through an
uncapped gas line and plaintiffs’ home burned down following Patricia Hill’s attempt to light a
candle and the resultant natural gas explosion. Defendants were prior owners of the home and
the parties who sold, delivered, and installed an electric washer and dryer purchased by Marcy
Hill in 2003. Hill’s mother had directed the installers to place the washer and dryer in the same
location where the prior owners’ gas dryer had been situated. The prior owners had turned off
the gas to the line supplying their dryer, but had not capped off the line when they moved, taking
their dryer with them. In 2007, four years after the electric dryer’s installation, during which
time it had functioned without incident, Hill inadvertently opened the valve on the gas line.
Marcy and Patricia Hill smelled gas throughout the day but did not act on this information,
despite both women’s knowledge that the smell of natural gas required safety precautions.
Plaintiffs’ home exploded that night when Patricia Hill attempted to light the candle with a
lighter. Plaintiffs asserted that the installers had negligently installed the dryer and failed to
discover, properly inspect, cap, and warn plaintiffs about the uncapped gas line. The court, Mark
S. Switalski, J., denied the retailers’, delivery companies’, and installers’ motions for summary
disposition. The installers, Mark Pritchard and Timothy Dameron, appealed by leave granted.
The Court of Appeals, MURPHY, C.J., and STEPHENS and M. J. KELLY, JJ., affirmed in an
unpublished opinion per curiam, issued May 24, 2011 (Docket No. 295071). The retailers,
delivery companies, and the installers filed separate applications for leave to appeal. The
Supreme Court ordered and heard oral argument on whether to grant the applications or take
other peremptory action. 490 Mich. 896 (2011).
In an opinion by Justice MARY BETH KELLY, joined by Chief Justice YOUNG and Justices
MARKMAN and ZAHRA, the Supreme Court held:
The installers owed no legal duty to plaintiffs with respect to the uncapped gas line. The
installers and plaintiffs had a limited relationship that did not require the installers to undertake
any action relative to the uncapped gas line, and the delivery and installation of the dryer did not
create a new dangerous condition with respect to the uncapped gas line or make an existing
dangerous condition more hazardous.
1. To establish a prima facie case of negligence, a plaintiff must prove (1) that the
defendant owed the plaintiff a legal duty, (2) that the defendant breached the duty, (3) that the
plaintiff suffered damages, and (4) that the defendant’s breach was a proximate cause of the
damages. There can be no tort liability unless the defendant owed the plaintiff a duty. As a
general rule, there is no duty that obligates one person to aid or protect another. Duties may arise
from a statute, a contractual relationship, or by operation of the common law. At common law,
whether a legal duty exists is a question of whether the relationship between the actor and the
plaintiff gives rise to any legal obligation on the actor’s part to act for the benefit of the
subsequently injured person. It must be determined whether the social benefits of imposing a
duty outweigh the social costs of imposing the duty. There must have been a relationship
between the parties before a duty can be imposed, and the harm must have been foreseeable.
2. The installers contracted to deliver and install the electric washer and dryer. Their
only common-law duty was to use due care when delivering and installing the electric washer
and dryer, which the installers accomplished at the direction of Marcy Hill’s mother in a total of
12 minutes. Because of this limited relationship, the installers were not required to undertake
any action with regard to the gas line, and plaintiffs’ negligence action failed as a matter of law.
3. Certain special relationships give rise to a duty when a person entrusts himself or
herself to the control or protection of another, such as the relationship between common carriers
and their passengers, innkeepers and their guests, and doctors and patients. The duty to protect is
imposed on the person in control because that person is best able to provide a place of safety.
There was no special relationship between the parties here because the installers’ actions related
only to the delivery and installation of the washer and dryer. Plaintiffs did not entrust
themselves to the control or protection of the installers or lose the ability to protect themselves.
The installers did not owe plaintiffs a duty to warn because of plaintiffs’ ignorance of and
mistaken assumptions regarding the nature of the gas line. Plaintiffs had constructive notice of
the gas line’s existence because it was visible for a few weeks before the dryer was installed in
front of it and knowledge of facts putting a person of ordinary prudence on inquiry is equivalent
to actual knowledge of the facts that a reasonably diligent inquiry would have disclosed. The
social benefits of imposing a duty under these circumstances would not outweigh the social costs
because the result would absolve homeowners from any duty to protect themselves from hazards
within their homes.
4. A duty separate and distinct from any contractual duty arises when an action creates a
new hazard. The delivery and installation of the washer and dryer did not create a new
dangerous condition with respect to the uncapped gas line or make an existing dangerous
condition more hazardous. The hazard associated with the uncapped gas line was present when
the installers entered the premises and when they left; the danger posed by the uncapped gas line
was the same before and after the installation.
5. Any liability of the retailers or the delivery companies would have resulted from their
agency relationship with the installers. The circuit court erred by denying the summary
disposition motions.
Reversed and remanded for entry of an order granting defendants summary disposition.
Justice MARILYN KELLY, joined by Justices CAVANAGH and HATHAWAY, would have
affirmed the Court of Appeals’ judgment on the grounds that the installers owed plaintiffs a duty
to warn of the potential hazards the gas pipe posed before their installation of the dryer concealed
it. The installers had a duty to take reasonable safeguards to protect plaintiffs from harm and a
duty to conform their conduct to that of a reasonable person when installing the washer and
dryer. Justice KELLY would also have concluded that a duty to warn arose because of the
relationship between the parties and because the installers had superior knowledge of the
dangerous characteristics of an uncapped gas line. By contrast, plaintiffs did not know that the
uncapped pipe was a gas line. Justice KELLY would have imposed a simple duty on defendant
installers to warn of the dangers, limited to the area they occupied during the installation process
and would not extend the duty to potential hazards unrelated to the electric dryer or its
installation. The duty to use due care existed regardless of whether the installers’ alleged
negligence created a new hazard or increased the danger of an existing one, but the installers also
owed plaintiffs a duty to not worsen an existing hazard. The installers increased the existing
danger by installing the dryer in such a way as to conceal the uncapped gas line.
©2012 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
FILED AUGUST 16, 2012
STATE OF MICHIGAN
SUPREME COURT
MARCY HILL, PATRICIA HILL, and
CHRISTOPHER HILL,
Plaintiffs-Appellees,
v No. 143329
SEARS, ROEBUCK AND CO., SEARS
LOGISTIC SERVICES, INC., EXEL
DIRECT, INC. and MERCHANT
DELIVERY, INC.,
Defendants-Appellees,
and
MARK PRITCHARD and TIMOTHY
DAMERON,
Defendants-Appellants,
and
CHARLES R. LINDSEY, ORALIA J.
LINDSEY, and ALBERT KIMPE,
Defendants.
MARCY HILL, PATRICIA HILL, and
CHRISTOPHER HILL,
Plaintiffs-Appellees,
v No. 143348
SEARS, ROEBUCK AND CO., SEARS
LOGISTIC SERVICES, INC., MARK
PRITCHARD, and TIMOTHY DAMERON,
Defendants-Appellees,
EXEL DIRECT, INC, and MERCHANT
DELIVERY, INC.,
Defendants-Appellants,
and
CHARLES R. LINDSEY, ORALIA J.
LINDSEY, and ALBERT KIMPE,
Defendants.
MARCY HILL, PATRICIA HILL, and
CHRISTOPHER HILL,
Plaintiffs-Appellees,
v No. 143633
SEARS, ROEBUCK AND CO. and SEARS
LOGISTIC SERVICES, INC.,
Defendants-Appellants,
EXEL DIRECT, INC, MERCHANT
DELIVERY, INC., MARK PRITCHARD,
and TIMOTHY DAMERON,
2
Defendants-Appellees,
and
CHARLES R. LINDSEY, ORALIA J.
LINDSEY, and ALBERT KIMPE,
Defendants.
BEFORE THE ENTIRE BENCH
MARY BETH KELLY, J.
These cases arise out of an explosion that destroyed plaintiff Marcy Hill’s Clinton
Township home after she released natural gas through an uncapped gas line, which
ignited when her adult daughter attempted to light a candle, after they had both actually
smelled the gas in the home throughout the day and evening. Plaintiffs1 filed suit against
the retailers, delivery companies, and installers of plaintiffs’ electric dryer, which had
been installed nearly four years earlier and had functioned without incident. We heard
oral argument on the applications to consider in part “(1) whether the defendant installers
of the electrical appliance, Mark Pritchard and Timothy Dameron, had a duty to the
plaintiffs with respect to the uncapped gas line in their home that was separate and
distinct from their contractual duty to properly and safely install the electrical appliance”
and “(2) whether these defendant installers created a new dangerous condition with
respect to the uncapped gas line, or made an existing dangerous condition more
hazardous . . . .”2
1
“Plaintiffs” refers to Marcy Hill and her children, Patricia and Christopher Hill.
2
Hill v Sears Roebuck & Co, 490 Mich. 896 (2011). Any liability of the retailers and
delivery companies would result from their agency relationship with the installers.
3
Because defendant installers and plaintiffs had a limited relationship that did not
require defendant installers to undertake any action relative to the uncapped gas line, we
hold that defendant installers owed no legal duty to plaintiffs with respect to the
uncapped gas line in plaintiffs’ home. Further, we conclude that the delivery and
installation of the dryer did not create a new dangerous condition with respect to the
uncapped gas line or make an existing dangerous condition more hazardous. We
therefore reverse the judgment of the Court of Appeals and remand this case to the circuit
court for entry of an order granting summary disposition for defendants.3
I. FACTS AND PROCEDURAL HISTORY
In August 2003, Marcy purchased a home from Charles and Oralia Lindsey. The
home had a kitchen niche for the clothes washer and dryer. The Lindseys had used a
natural-gas-powered dryer, which connected to a gas line that extended from the furnace
room to the kitchen niche.4 When the Lindseys moved out of the home, they took their
appliances with them and turned off the gas to the line supplying the dryer. They did not
put a pipe cap on the end of the gas line in the kitchen, the end of which was visibly
apparent.
3
As used in this opinion “defendants” refers to the retailers, the delivery companies, and
the installers. Plaintiffs’ claims against defendant retailers and delivery companies are
based on the theory that defendant installers were the agents of both the retailers and the
delivery companies. Plaintiffs also sued the former owner of the home who installed the
gas line and two other previous owners, but none of these individuals are involved in this
appeal.
4
A prior owner, Albert Kimpe, had installed the gas line.
4
A few weeks later, Marcy purchased a new washer and an electric-powered dryer
from defendant retailers.5 The appliances were delivered by defendant delivery
companies6 and installed by Pritchard and Dameron on September 8, 2003.7 At the
direction of Marcy’s mother, defendant installers positioned the appliances in the
designated area of the kitchen, in the same spot where the Lindseys’ washer and dryer
had been. After its installation, the electric dryer functioned without incident for almost
four years.
On May 19, 2007, Marcy’s kitchen faucet and the pipes under her sink required
repair. The next day, after seeking repair advice, Marcy attempted to turn off the main
water supply by turning various valves in the furnace room. In doing so, Marcy
inadvertently opened the natural gas valve supplying the uncapped gas line in the kitchen.
After smelling natural gas, Marcy attempted to shut off the valve by returning it to what
she thought to be its original position, but she did not close the valve. Marcy continued
to smell gas periodically throughout the day. Although she knew she “was supposed to
call someone” under the circumstances, she did not do so.8 Instead, Marcy opened the
5
Sears, Roebuck and Co. and Sears Logistic Services, Inc., which contracted for the
delivery.
6
Exel Direct, Inc., and Merchant Delivery, Inc.
7
Defendant Sears Logistic Services, Inc., contracted with defendant delivery companies
to perform delivery services, who in turn subcontracted the delivery and installation
services to defendant installers. Plaintiffs are not a party to any of these contracts.
8
Marcy admitted at her deposition that she had received gas bills that included
instructions to immediately call the gas company if the smell of gas was detected.
5
windows and “thought there was nothing wrong,” continuing to light and smoke
cigarettes throughout the evening.
Later, when Marcy’s daughter, Patricia, arrived, she told Marcy that she smelled
gas. Like Marcy, Patricia knew the smell of gas “was dangerous” and that she should
“get out of the house.”9 While Marcy and her daughter continued to periodically smell
gas, they both continued to light and smoke cigarettes indoors and did nothing to remedy
the situation except to open the windows.10 That evening, both Marcy and her son went
to bed, while Patricia went out. When Patricia returned home at about 3 a.m., she again
smelled gas near the dryer.11 Patricia then went to the living room, where she attempted
to light a candle with a lighter. According to Patricia, “as soon as the lighter ignited,” the
house exploded. Plaintiffs escaped from the burning house, but all of them suffered some
injuries.
Plaintiffs filed a lawsuit against the instant defendants, alleging that defendant
installers negligently installed the new electric dryer and failed to properly inspect the
uncapped gas line, discover the uncapped gas line, cap the gas line, and warn or give
notice to plaintiffs of the uncapped gas line. Defendant installers moved for summary
9
At her deposition, Patricia indicated she had “graduate[d] from the D.A.R.E. program
[in which] we all learned in fifth grade [that] if you smell gas [you’re to get out of the
house immediately].”
10
Apparently, the smell of natural gas was sufficiently strong that plaintiffs’ neighbors
told investigators and news reporters that they had smelled the gas before the explosion.
11
Patricia testified at her deposition that she did not smell gas upon returning home at 3
a.m., but an insurance investigation report indicates that Patricia told the investigator that
she did.
6
disposition under MCR 2.116(C)(8) and (10), while defendant retailers and delivery
companies moved for summary disposition under MCR 2.116(C)(10). Defendant
installers asserted that they did not owe plaintiffs a cognizable duty because they did not
create a “new hazard” that did not previously exist and they had “absolutely no
interaction” with the gas line. Defendant retailers and delivery companies argued that
they had no duty to protect plaintiffs from the gas line, noting that they had merely sold
Marcy the dryer or arranged for delivery services.
The circuit court first denied defendant retailers’ and delivery companies’ motions
for summary disposition, reasoning in part that, “at a minimum, [these] defendant entities
owed a duty to plaintiffs not to make the situation involving the uncapped gas line
worse.” The circuit court also denied defendant installers’ motion for summary
disposition, explaining:
[T]here is a social policy which applies to delivery personnel such
that they are precluded from entering an individual’s home and making a
dangerous situation even worse. Plaintiffs have presented sufficient
evidence that the uncapped gas valve, coupled with its concealment by the
location of a new appliance, created a foreseeable risk of harm. There is no
evidence that [defendant installers] attempted to cap the open gas valve or
warn plaintiffs about the hazard. It cannot seriously be disputed that the
nature of the harm posed a very serious risk. The Court therefore concludes
that [defendant installers] owed a duty to plaintiffs not to make the hazard
created by the uncapped gas valve worse by their actions, including, but not
limited to, positioning the new appliances in such a way as to conceal the
hazard from view.[12]
12
Citations omitted. After the circuit court denied defendant installers’ motion for
summary disposition, defendant delivery companies brought a motion for clarification of
the duty owed to plaintiffs. In a written opinion and order, the circuit court stated, “[T]he
only duty that [defendant delivery companies] owed to plaintiffs was to refrain from
7
Defendant installers sought interlocutory leave to appeal in the Court of Appeals,
which granted leave and affirmed the circuit court in an unpublished opinion per
curiam.13 Addressing the issue of duty, the Court of Appeals held that defendant
installers had a duty not to make the uncapped gas line more dangerous by “concealing”
it with the electric dryer. The panel explained, “[T]he hazard that allegedly caused the
explosion did not exist until [defendant installers] installed the dryer in a way that
prevented the discovery of the uncapped gas line.”14
Defendants filed separate applications for leave to appeal in this Court. We heard
oral argument on the applications. In lieu of granting leave to appeal, pursuant to MCR
7.302(H)(1), we reverse the judgment of the Court of Appeals.
II. STANDARD OF REVIEW
We review de novo a circuit court’s determination on a motion for summary
disposition under MCR 2.116(C)(10).15 Whether a defendant owes a plaintiff a duty of
making the situation involving the uncapped gas valve any worse than it already may
have been.”
13
Hills v Sears Roebuck & Co, unpublished opinion per curiam of the Court of Appeals,
issued May 24, 2011 (Docket No. 295071).
14
Id. at 3 (emphasis added).
15
Dressel v Ameribank, 468 Mich. 557, 561; 664 NW2d 151 (2003). Because the circuit
court considered evidence outside the pleadings when it denied defendant installers’
motion for summary disposition, we consider the circuit court’s determination to be
based on MCR 2.116(C)(10), as opposed to (C)(8).
8
care is a question of law decided by the circuit court.16 We review de novo the
determination whether a duty exists.17
III. ANALYSIS
To establish a prima facie case of negligence, a plaintiff must prove that “(1) the
defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3)
the plaintiff suffered damages, and (4) the defendant’s breach was a proximate cause of
the plaintiff's damages.”18 This negligence action, however, principally concerns the
element of duty and requires us to consider the threshold question whether defendants
owed plaintiffs any of the claimed legal duties when the dryer was sold, delivered, and
installed in plaintiffs’ home nearly four years before the explosion.19 Defendants argue
that the lower courts erred by concluding that they owed plaintiffs a duty to not create a
new hazard by “concealing” an open view of the gas line. Plaintiffs counter that
defendant installers owed a duty to either cap the gas line or warn plaintiffs of the
existence of the uncapped line.
16
Beaudrie v Henderson, 465 Mich. 124, 130; 631 NW2d 308 (2001).
17
Fultz v Union-Commerce Assoc, 470 Mich. 460, 463; 683 NW2d 587 (2004).
18
Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich. 157, 162; 809 NW2d 553
(2011).
19
See Fultz, 470 Mich. at 463 (noting that the threshold question in a negligence action is
whether the defendant owed a duty to the plaintiff).
9
A. LEGAL DUTY
“‘It is axiomatic that there can be no tort liability unless [a] defendant[] owed a
duty to [a] plaintiff.’”20 Every person engaged in the performance of an undertaking has
a duty to use due care or to not unreasonably endanger the person or property of others.21
However, as a general rule, “‘there is no duty that obligates one person to aid or protect
another.’”22 Generally, the duty that arises when a person actively engages in certain
conduct may arise from a statute, a contractual relationship, or by operation of the
common law, as plaintiffs allege in this case.23
At common law, “[t]he determination of whether a legal duty exists is a question
of whether the relationship between the actor and the plaintiff gives rise to any legal
obligation on the actor’s part to act for the benefit of the subsequently injured person.”24
“[T]he ultimate inquiry in determining whether a legal duty should be imposed is whether
the social benefits of imposing a duty outweigh the social costs of imposing a duty.”25
20
Id., quoting Beaty v Hertzberg & Golden, PC, 456 Mich. 247, 262; 571 NW2d 716
(1997).
21
Loweke, 489 Mich. at 165, citing Clark v Dalman, 379 Mich. 251, 261; 150 NW2d 755
(1967).
22
Loweke, 489 Mich. at 164, quoting Williams v Cunningham Drug Stores, 429 Mich. 495,
499; 418 NW2d 381 (1988).
23
Riddle v McLouth Steel Prod Corp, 440 Mich. 85, 95; 485 NW2d 676 (1992).
24
In re Certified Question from the Fourteenth Dist Court of Appeals of Texas, 479 Mich.
498, 505-506; 740 NW2d 206 (2007) (quotation marks and citations omitted; emphasis
added); see also Brown v Brown, 478 Mich. 545, 552; 739 NW2d 313 (2007).
25
In re Certified Question, 479 Mich. at 505 (citations omitted).
10
Factors relevant to the determination whether a legal duty exists include the “the
relationship of the parties, the foreseeability of the harm, the burden on the defendant,
and the nature of the risk presented.”26 We have recognized, however, that “[t]he most
important factor to be considered [in this analysis] is the relationship of the parties” and
also that there can be no duty imposed when the harm is not foreseeable.27 In other
words, “[b]efore a duty can be imposed, there must be a relationship between the parties
and the harm must have been foreseeable.”28 If either of these two factors is lacking, then
it is unnecessary to consider any of the remaining factors.29
Plaintiffs argue that defendant installers had a common-law duty to cap the gas
line or warn plaintiffs of its existence.30 As noted, in determining whether a legal duty
should be imposed in this case, we first consider the parties’ relationship. In Dyer v
Trachtman,31 a medical malpractice case, we focused on the relationship between the
parties to determine whether the defendant doctor, who performed an independent
medical examination (IME) of the plaintiff, owed a duty to the plaintiff.32 We recognized
26
Id. (quotation marks and citations omitted).
27
Id. at 505, 508.
28
Id. at 509.
29
Id. at 508-509.
30
Because plaintiffs raise an agency theory of liability against defendant retailers and
defendant delivery companies based on those defendants’ relationship with defendant
installers, our analysis focuses solely on whether defendant installers owe plaintiffs any
duty related to the gas line.
31
Dyer v Trachtman, 470 Mich. 45; 679 NW2d 311 (2004).
32
Id. at 47-50.
11
in Dyer that because the parties only had a limited relationship, unlike that between a
patient and treating physician, the defendant only owed a limited duty to the plaintiff
commensurate with his performance of the IME.33 Because only a limited relationship
existed, only a limited duty could be imposed, and consequently, it was unnecessary to
consider the other factors relevant to determining whether a duty existed.34
As in Dyer the parties in this case had a limited relationship, which was simply
that of a customer and an installer of electrical appliances. And although a contractual
relationship existed to meet this end, plaintiffs concede that defendant installers satisfied
their contractual obligations by delivering and installing the washer and electric dryer.
Instead, plaintiffs assert that defendant installers had a common-law duty to take certain
actions with respect to the uncapped gas line.35 The limited duty defendant installers
undertook, however, was only to properly deliver and install the washer and electric dryer
in plaintiffs’ home. Certainly every person engaged in the performance of an undertaking
has “‘an obligation to use due care, or to so govern his actions as not to unreasonably
endanger the person or property of others.’”36 Here, the limited undertaking in which the
33
Id. at 49-50.
34
Id.; see also In re Certified Question, 479 Mich. at 507 (explaining that it is unnecessary
to consider the additional factors when only a limited relationship exists).
35
As we recently explained in Loweke, 489 Mich. at 171:
[I]n determining whether the action arises in tort, and thus whether a
separate and distinct duty independent of the contract exists, the operative
question . . . is whether the defendant owed the plaintiff any legal duty that
would support a cause of action in tort, including those duties that are
imposed by law.
36
Id. at 165, quoting Clark, 379 Mich. at 261.
12
defendant installers were engaged was the delivery and installation of a washer and an
electric dryer. The contract did not obligate them to inspect, cap, or in any manner touch
the gas line. Having engaged to perform this undertaking, defendant installers had a
common-law duty to do so with due care, and the record reflects that they did so.
Defendant installers entered plaintiffs’ home for this limited purpose only once,
for a total of 12 minutes. Further, the task was accomplished in a nonnegligent manner at
the direction of Marcy’s mother, as demonstrated by the fact that the electric dryer
functioned without incident up until the time of the explosion. No record evidence
suggests that defendant installers asserted any duty relative to the gas line, let alone any
duty to inspect or warn plaintiffs about the gas line. Given the limited nature of the
relationship between defendant installers and plaintiffs, defendant installers were under
no obligation to warn of or cap the gas line or undertake any action relative to the gas
line, but only had an obligation to use due care when installing the appliances.37 Because
37
Plaintiffs cite Girvan v Fuelgas Co, 238 Mich. App. 703; 607 NW2d 116 (2000), to
argue that the parties’ relationship requires the imposition of a duty, but Girvan does not
support their position. Rather, in an opinion authored by then Judge ZAHRA, the Court of
Appeals recognized that a gas supplier
has a duty to ensure that its product is delivered safely to the exterior of the
premises of the end user but, in the absence of an agreement to do
otherwise, that duty does not extend to the inspection of the interior lines,
conduits, and appliances over which the supplier has no control. [Girvan,
238 Mich. App. at 714.]
The Girvan Court relied on caselaw from this Court that recognized that a duty could be
imposed on suppliers of dangerous commodities only if the supplier was negligent in
performing the function it agreed to perform. See Gadde v Mich Consol Gas Co, 377
Mich. 117, 126; 139 NW2d 722 (1966); Kevreson v Mich Consol Gas Co, 374 Mich. 465;
132 NW2d 622 (1965); Young v Lee, 310 Mich. 42; 16 NW2d 659 (1944). Because the
gas supplier in Girvan did not expressly agree to an inspection of the interior gas lines,
13
the limited relationship of the parties did not require defendant installers to undertake any
action with regard to the gas line, plaintiffs’ negligence claim fails as a matter of law.
Plaintiffs, however, argue that defendant installers had a duty to take action with
regard to the gas line. Plaintiffs’ argument is flawed because it wrongly assumes that
defendant installers, having undertaken to deliver and install the washer and electric
dryer, assumed other responsibilities not associated with the delivery and installation of
the washer and dryer.38 Defendant installers did not act on the gas line. They only
the Court of Appeals concluded that the defendant had no duty in that regard. And like
the defendant in Girvan, defendant installers here did not expressly agree to enter
plaintiffs’ premises for the purpose of inspecting the gas line. The dissent, however,
suggests that Girvan supports imposition of a duty because Girvan recognized that a
“reasonable person should seek expert assistance when dealing with dangerous
commodities on the person’s premises” and, according to the dissent, plaintiffs did seek
expert assistance from defendant installers to install their electric dryer. Post at 9 n 14.
Yet Girvan is irrelevant in this regard because while plaintiffs did seek expert assistance
to install an electric dryer, plaintiffs never sought expert assistance with respect to the
smell of natural gas and, at the time of installation, defendant installers were not dealing
with a dangerous commodity. Thus, we do not “fail[] to recognize” that plaintiffs sought
expert assistance to install their appliances. Post at 9 n 14. The dissent has simply
mischaracterized the record and our opinion.
38
The dissent makes the same flawed assumption when it asserts that defendant installers
had a duty to warn plaintiffs of the gas line because of their “superior knowledge” of “gas
lines, appliances, and their installation.” Post at 5. In reaching this conclusion, the
dissent disregards the limited relationship of the parties, which, as we have explained, in
no way imposed a duty on defendant installers to “take reasonable safeguards to protect
plaintiffs from harm.” Post at 4. Further, even assuming that defendant installers
possessed some superior knowledge, they were under no obligation to warn plaintiffs
about the gas line because it was highly visible and defendant installers would have no
reason to believe that plaintiffs, the homeowners, would not have realized its dangerous
condition. The products-liability case the dissent relies on in support, post at 5, is
inapposite for this reason, as well as the fact that defendant installers were the
manufacturer of neither the gas line nor the dryer.
14
delivered and installed the dryer. Thus, having not undertaken by contract or otherwise
to act on the gas line, they had no duty to plaintiffs with respect to it.39
Plaintiffs also suggest that we should conclude that defendant installers owed
plaintiffs a duty because of plaintiffs’ ignorance of and mistaken assumptions regarding
the gas line.40 We decline to impose a duty on the basis of ignorance or mistaken
assumption under these facts because the indicia necessary for imposing a duty based on
a special relationship are plainly absent. We have recognized that certain types of special
relationships, such as common carriers and their passengers, innkeepers and their guests,
and doctors and patients, justify the imposition of a duty because a person entrusts
39
Plaintiffs are essentially asking this Court to hold that defendant installers had a duty to
warn or otherwise protect them from an observable hazard that was created by a third
party (a prior homeowner). But such a holding, which the dissent also advocates, is
directly contrary to the common law, which does not “obligate[] one person to aid or
protect another” except “where a special relationship exists between a plaintiff and a
defendant.” Williams, 429 Mich. at 499. We have recognized several special
relationships, such as common carriers and their passengers, innkeepers and their guests,
and doctors and their patients, but this Court has never held that a special relationship
exists between an appliance installer and homeowners or home occupiers. Indeed, the
dissent’s reliance on Huhtala v Travelers Ins Co, 401 Mich. 118, 130; 257 NW2d 640
(1977), post at 4 n 5 and 6 n 9, for the proposition that defendant installers had a duty to
warn plaintiffs about the gas line is unavailing because Huhtala’s discussion of a duty to
protect refers to cases in which that duty arose as a result of special relationships. In this
case, there being no common-law duty to act, defendant installers had no obligation to act
for the benefit of the homeowner or occupiers in regard to hazards created by third
parties.
40
During her deposition, Marcy testified that she “didn’t know,” in terms of gas and
electric, what lines were in the kitchen and that she “kind of assumed Sears did all that.”
She stated: “I didn’t know that stuff, details. I thought Sears did that stuff when they
came out.”
15
himself or herself to the control of another person. We have explained the rationale
behind imposing a duty in such situations:
Social policy . . . has led the courts to recognize an exception to th[e]
general rule [that there is no duty that obligates one person to aid or protect
another] where a special relationship exists between a plaintiff and a
defendant. . . . The rationale behind imposing a duty to protect in these
special relationships is based on control. In each situation one person
entrusts himself to the control and protection of another, with a consequent
loss of control to protect himself. The duty to protect is imposed upon the
person in control because he is best able to provide a place of safety.[41]
Defendant installers’ actions here related solely to the delivery and installation of
the washer and electric dryer, which occurred in plaintiffs’ home, which is
quintessentially the place where plaintiffs are most in control and “best able to provide a
place of safety” for themselves.42 It is not the result of defendant installers’ actions, that
plaintiffs ceded control of their home, thereby “entrust[ing] [themselves] to the control
and protection of another . . . .”43 Plaintiffs never lost control of the gas line. Plaintiffs
easily could have at any time capped the line or removed it or, once they smelled gas,
called the gas company to ensure their own safety, as well as that of the premises.
Instead, plaintiffs simply chose not to undertake these obvious safety precautions, despite
Marcy’s concession that she knew to call the gas company if she detected the odor of
natural gas. Given that the limited relationship between an appliance installer and
homeowners or occupiers is such that the homeowners or occupiers neither entrust the
41
Williams, 429 Mich. at 499 (emphasis added).
42
Id.
43
Id.
16
appliance installer with their control and protection nor lose the ability to protect
themselves, we decline to modify the common law and impose a duty on such an installer
to act for the benefit of the homeowners or occupiers in regard to hazards created by third
parties. Indeed, we are not aware of a single Michigan case that imposes a legally
cognizable duty when a competent adult chooses to remain ignorant about a condition
within his or her complete control; likewise, we are not aware of any caselaw holding that
a party’s silent, unspoken assumptions impose an affirmative legal duty on another party
to act in accordance with those unshared assumptions.
Moreover, regarding the duty to warn, we note that the circumstances of the
relationship between defendant installers and plaintiffs did not give rise to any legal
obligation on defendant installers’ part because plaintiffs knew about the uncapped gas
line before installation of the dryer. It is uncontested that the uncapped gas line was fully
visible for several weeks between the time Marcy bought the home in August 2003 and
September 8, 2003, when the dryer was installed. At her deposition, Marcy
acknowledged that she had lived in the house for “a few weeks” before the washer and
dryer were installed, that the open kitchen niche was “highly visible” during this time,
and that she saw the pipe in the kitchen niche but “thought [the pipes] were water lines.”
These undisputed facts establish that plaintiffs had constructive notice of the gas line’s
existence. This Court considered constructive notice in Converse v Blumrich, stating:
A person is chargeable with constructive notice where, having the
means of knowledge, he does not use them. . . . If he has knowledge of
such facts as would lead any honest man, using ordinary caution, to make
further inquiries, and does not make, but on the contrary studiously avoids
making such obvious inquiries, he must be taken to have notice of those
17
facts, which, if he had used such ordinary diligence, he would readily have
ascertained.[44]
Plainly, Marcy’s admission that she was aware of the pipes in the kitchen niche
should have led her, using “ordinary caution,” to make further inquiries regarding the
nature of the pipes. Instead of making further inquiries or using ordinary diligence,
Marcy merely “kind of assumed Sears did all that.” Therefore, plaintiffs are considered
to have notice of the “highly visible” gas line because “[k]nowledge of facts putting a
person of ordinary prudence on inquiry is equivalent to actual knowledge of the facts
which a reasonably diligent inquiry would have disclosed.”45 Because “there is no duty
to warn someone of a risk of which that person is aware,”46 plaintiffs’ theory that
defendant installers had a duty to warn them of the gas line necessarily fails as a matter of
law.47
44
Converse v Blumrich, 14 Mich. 109, 120 (1866) (citations omitted). Black’s Law
Dictionary (9th ed), p 1164, defines “constructive notice” as “[n]otice arising by
presumption of law from the existence of facts and circumstances that a party had a duty
to take notice of . . . .” Although neither Patricia nor Christopher testified that they
actually saw the kitchen pipes, the fact that the pipes were highly visible in a high-traffic
area of the home for nearly a month also supports imputing notice to Patricia and
Christopher.
45
Deputy Comm’r of Agriculture v O & A Electric Co-Op, Inc, 332 Mich. 713, 716; 52
NW2d 565 (1952) (emphasis added). In reaching this conclusion, we have not somehow
“confuse[d],” post at 10, plaintiffs’ knowledge of the pipe with knowledge that the pipe
was dangerous, but have simply applied the law as it pertains to constructive notice.
Indeed, it is the dissent that “confuses,” post at 10, these principles of constructive notice
because it would require that plaintiffs had actual notice of the uncapped gas line’s
potentially dangerous condition before imputing that knowledge to plaintiffs.
46
Groncki v Detroit Edison Co, 453 Mich. 644, 656; 557 NW2d 289 (1996) (opinion by
BRICKLEY, C.J.).
47
Likewise, the Court of Appeals’ reasoning that defendant installers breached a duty to
not create a new hazard or make an existing hazard worse by “install[ing] the dryer in a
18
In summary, because only a limited relationship existed between the parties,
through which defendant installers undertook only to nonnegligently install electric
appliances, it is not necessary for us to consider the additional factors related to whether a
duty exits.48 Plaintiffs nonetheless urge us to alter the common law and consider policy
reasons that support the imposition of a duty. However, it is precisely because the social
benefits of imposing a duty do not outweigh the social costs that we will not do so.49 If
liability were imposed on defendants for failure to cap the gas line or to warn plaintiffs of
the uncapped gas line, then similarly situated defendants would presumably also owe a
duty to a plaintiff to inspect and prevent all other hazards that the defendant might
encounter in a customer’s home. The burden imposed on defendants would be onerous
and unworkable because they would be required to protect their customers from potential
hazards they might encounter in the customer’s home when, in fact, it is the homeowners
who are best equipped to be aware of their home’s potential hazards and protect
themselves accordingly.50 Indeed, it is difficult to envision what social benefit would
way that prevented the discovery of the uncapped gas line,” Hill, unpub op at 3, fails for
the same reason. Plaintiffs already had notice of the gas line well before defendant
installers arrived to install the appliances. It is simply illogical to conclude that defendant
installers’ actions prevented plaintiffs’ discovery of the gas line when plaintiffs already
had notice of it. Placing the dryer in front of the gas line does not somehow change the
knowledge that plaintiffs had already acquired.
48
In re Certified Question, 479 Mich. at 506-507.
49
Id. at 505.
50
The dissent suggests that if a duty to warn were imposed, the scope of a defendant’s
duty would be limited and workable. However, the dissent essentially agrees that a
defendant’s potential duty would extend to all areas of a plaintiff’s home that the
defendant works in and traverses. And while the dissent attempts to limit an appliance
19
result were we to recognize plaintiffs’ claim because the result would be to absolve
homeowners from any duty to protect themselves from hazards within their own homes.
As we have previously explained:
[W]e have on occasion allowed for the development of the common
law as circumstances and considerations of public policy have required.
See, e.g., Berger [v Weber, 411 Mich. 1; 303 NW2d 424 (1981)]. But as
Justice YOUNG has recently observed, our common-law jurisprudence has
been guided by a number of prudential principles. See Young, A judicial
traditionalist confronts the common law, 8 Texas Rev L & Pol 299, 305-
310 (2004). Among them has been our attempt to “avoid capricious
departures from bedrock legal rules as such tectonic shifts might produce
unforeseen and undesirable consequences,” id. at 307, a principle that is
quite applicable to the present case.[51]
Accordingly, we continue to adhere to our common-law concept of duty that is
circumscribed by the bounds of the parties’ relationship.
B. NEW HAZARD
To avoid preclusion of their negligence claim, plaintiffs allege that defendant
installers created a new hazard by placing the electric dryer in front of the gas line. As
this Court stated in Fultz, one breaches a duty that is “separate and distinct” from the
contract when it creates a “new hazard.”52 Thus, the remaining issue is whether
defendant installers created a new hazard when they installed the washer and dryer in
front of the gas line.
installer’s duty to hazards related to the appliance or its installation, it has not explained
how to discern which hazards are related and which are “unrelated.” Post at 8.
51
Henry v Dow Chem Co, 473 Mich. 63, 83; 701 NW2d 684 (2005).
52
Fultz, 470 Mich. at 468-469 (emphasis omitted).
20
The delivery and installation in this instance did not create a new dangerous
condition with respect to the uncapped gas line or make an existing dangerous condition
more hazardous. The hazard—the uncapped gas line—was present when defendant
installers entered the premises, and it was present when they left. The placement of the
dryer did not affect the existence or nature of the hazard in any manner because the
danger posed by the uncapped gas line was exactly the same before and after the electric
dryer was installed.53 The delivery and installation in this instance did not create a new
dangerous condition with respect to the uncapped gas line, or make an existing dangerous
condition more hazardous. Therefore, the Court of Appeals erred by concluding that
defendant installers breached a duty not to create a new hazard.
IV. CONCLUSION
Defendant installers and plaintiffs had a limited relationship that required the
former to properly install electrical appliances in plaintiffs’ home. Because that limited
relationship did not require defendant installers to undertake any action with respect to
the uncapped gas line, they owed plaintiffs no duty with respect to the gas line as a matter
of law. Further, the delivery and installation of the dryer did not create a new dangerous
condition with respect to the uncapped gas line or make an existing dangerous condition
53
The dissent’s opposite conclusion lacks logic. That the uncapped gas line was
concealed from view did not somehow worsen the already dangerous condition of the gas
line. While the dissent suggests that a visible danger is less dangerous than an “invisible”
one, post at 13, this theory fails under the circumstances of this case in which the
character of the gas line remained the same before and after the dryer’s installation and,
as the dissent admits, plaintiffs already knew of the pipe’s existence before the dryer’s
placement.
21
more hazardous. Thus, the lower courts erred by denying defendants’ motions for
summary disposition on the basis that defendants owed plaintiffs a duty. We therefore
reverse the judgment of the Court of Appeals and remand this case to the circuit court for
entry of an order granting summary disposition in favor of defendants.
Mary Beth Kelly
Robert P. Young, Jr.
Stephen J. Markman
Brian K. Zahra
22
STATE OF MICHIGAN
SUPREME COURT
MARCY HILL, PATRICIA HILL, and
CHRISTOPHER HILL,
Plaintiffs-Appellees,
v No. 143329
SEARS, ROEBUCK AND CO., SEARS
LOGISTIC SERVICES, INC., EXEL
DIRECT, INC. and MERCHANT
DELIVERY, INC.,
Defendants-Appellees,
and
MARK PRITCHARD and TIMOTHY
DAMERON,
Defendants-Appellants,
and
CHARLES R. LINDSEY, ORALIA J.
LINDSEY, and ALBERT KIMPE,
Defendants.
MARCY HILL, PATRICIA HILL, and
CHRISTOPHER HILL,
Plaintiffs-Appellees,
v No. 143348
SEARS, ROEBUCK AND CO., SEARS
LOGISTIC SERVICES, INC., MARK
PRITCHARD, and TIMOTHY DAMERON,
Defendants-Appellees,
EXEL DIRECT, INC, and MERCHANT
DELIVERY, INC,
Defendants-Appellants,
and
CHARLES R. LINDSEY, ORALIA J.
LINDSEY, and ALBERT KIMPE,
Defendants.
MARCY HILL, PATRICIA HILL, and
CHRISTOPHER HILL,
Plaintiffs-Appellees,
v No. 143633
SEARS, ROEBUCK AND CO. and SEARS
LOGISTIC SERVICES, INC.,
Defendants-Appellants,
EXEL DIRECT, INC, MERCHANT
DELIVERY, INC, MARK PRITCHARD,
and TIMOTHY DAMERON,
Defendants-Appellees,
and
CHARLES R. LINDSEY, ORALIA J.
LINDSEY, and ALBERT KIMPE,
Defendants.
2
MARILYN KELLY, J. (dissenting).
This interlocutory appeal presents a narrow question. It is whether the two
defendants who installed plaintiff Marcy Hill’s electric washer and dryer owed plaintiffs
a legal duty in tort with respect to plaintiffs’ uncapped gas pipe. It is not about what
duties were owed to plaintiffs by the former owners of the house. It is not about what
duties were owed by the party who detached and removed the gas dryer. It is not about
whether any of those parties or any defendant in this case ultimately should be held liable
for the gas explosion that destroyed plaintiffs’ home.
The majority concludes that the installers, defendants Mark Pritchard and Timothy
Dameron, owed no duty in tort to plaintiffs related to the gas pipe. It further concludes
that the installation of the dryer did not create a new hazard or make an existing
dangerous condition more hazardous. It finds that all defendants are entitled to summary
disposition of all of plaintiffs’ claims. I disagree with these conclusions. As a
consequence, I respectfully dissent.
DEFENDANTS OWED PLAINTIFFS A LEGAL DUTY TO WARN
It is axiomatic that there can be no liability in tort unless the defendant owes a
duty to the plaintiff.1 In assessing this issue, we examine whether an actor has a legal
obligation “to use due care, or to so govern his actions as not to unreasonably endanger
the person or property of others.”2 “‘In other words, “duty” is a question of whether the
defendant is under any obligation for the benefit of the particular plaintiff; and in
1
See Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich. 157, 162; 809 NW2d
553 (2011).
2
Clark v Dalman, 379 Mich. 251, 261; 150 NW2d 755 (1967).
3
negligence cases, the duty is always the same—to conform to the legal standard of
reasonable conduct in the light of the apparent risk.’”3
We consider several criteria when evaluating whether a duty exists, including (1)
the relationship of the parties, (2) the foreseeability of harm, (3) the burden on the
defendant, and (4) the nature of the risk presented.4 Applying these criteria, I would hold
that when they concealed the uncapped gas pipe, the installers owed plaintiffs a duty to
warn them of the potential hazards it posed.
The first criterion to consider when evaluating the existence of a legal duty is the
relationship of the parties. There was a direct relationship between the installers and
plaintiffs. The installers entered plaintiffs’ home for the purposes of delivering and
installing a washer and an electric dryer. In addition to their contractual duties, the
installers had a duty to take reasonable safeguards to protect plaintiffs from harm.5 While
performing the installation, they also had a duty to conform their conduct to that of a
reasonable person.
At the summary disposition hearing, plaintiffs presented evidence that the
installers either were aware of, or should have been aware of, the uncapped gas pipe
when they were installing plaintiffs’ electric dryer. This is because they have a level of
3
Schultz v Consumers Power Co, 443 Mich. 445, 449-450; 506 NW2d 175 (1993),
quoting Prosser & Keeton, Torts (5th ed), § 53, p 356.
4
Dyer v Trachtman, 470 Mich. 45, 49; 679 NW2d 311 (2004).
5
Huhtala v Travelers Ins Co, 401 Mich. 118, 130; 257 NW2d 640 (1977) (“The
relationship of the supplier of services with the consumer, although contractual in
inception, [gives] rise to a duty imposed by law on the supplier, apart from the terms of
their agreement, to take reasonable safeguards to protect the consumer.”).
4
sophistication and knowledge superior to that of plaintiffs with respect to the dangers
associated with gas lines, appliances, and their installation. This Court has recognized
and imposed a duty on the manufacturer or seller of a product because that party has
superior knowledge of the product’s dangerous characteristics.6 Here, the installers had
superior knowledge of the dangerous characteristics of a pipe that they concealed from
plaintiffs with their product. A duty to warn should arise in both circumstances.
The duty to warn in this case is analogous to the duty that this Court described in
Glittenberg v Doughboy Recreational Industries (On Rehearing).7 In Glittenberg, the
Court held that
[a] duty is imposed on a manufacturer or seller to warn under negligence
principles summarized in § 388 of 2 Restatement Torts, 2d, pp 300-301.
Basically, the manufacturer or seller must (a) have actual or constructive
knowledge of the claimed danger, (b) have no reason to believe that those
for whose use the chattel is supplied will realize its dangerous condition,
and (c) fail to exercise reasonable care to inform [users] of its dangerous
condition or of the facts which make it likely to be dangerous.[8]
The installers did not deny that they were aware or should have been aware of the
uncapped pipe and its dangers. They have not shown that plaintiffs were aware of what it
was or what dangers it presented. Plaintiffs’ expert witness, David Stayer, testified:
[I]nstallers are hired because they have a certain level of knowledge
and expertise . . . more than the homeowner has.
6
Glittenberg v Doughboy Recreational Indus (On Rehearing), 441 Mich. 379, 391; 491
NW2d 208 (1992).
7
Id.
8
Id. at 389-390 (emphasis added) (citation and quotation marks omitted).
5
* * *
The majority of homeowners have very little . . . mechanical
background to understand the ramifications of installing things in a certain
procedure for safety’s sake. They hire people to do this so that the device
or the work that is done is done . . . in a proper workmanship-type way, and
also so that it’s mechanically safe and physically safe so that there’s not
going to be gas leaks, electrical arcs that could cause problems with the
devices or fires in the future. That’s what they hire these people for.
In sum, the installers knew or should have known about the gas pipe and had no reason to
believe that plaintiffs knew what it was. And they failed to inform plaintiffs of its danger
before concealing it with the dryer. Accordingly, the relationship of the parties weighs
heavily in favor of imposing a duty on the installers to warn plaintiffs of the danger
associated with the uncapped gas line.9
The second criterion relevant to determining whether this duty exists is the
foreseeability of the harm involved. In this regard, “[a] plaintiff need not establish that
the mechanism of injury was foreseeable or anticipated in specific detail. It is only
necessary that the evidence establishes that some injury to the plaintiff was foreseeable or
9
The majority claims that the fact that “[defendants] did not expressly agree to enter
plaintiffs’ premises for the purpose of inspecting the gas line” weighs against imposing a
duty. Ante at 14 n 37. This claim is misleading. The installers were not contractually
obligated to inspect the gas line, but they were contractually obligated to install the
electric dryer. They did so in a location directly in front of the uncapped gas pipe without
warning plaintiffs of the danger they had concealed. By undertaking to install the dryer,
the installers assumed a duty to act in a reasonably prudent manner.
The majority similarly errs in its claim that because the installers did not lay hands
on the gas pipe, they did not owe plaintiffs a legal duty with respect to it. See ante at 13-
14. Huhtala explicitly held that a duty to act in a reasonable manner and protect a
consumer arises “apart from the terms of [a contract].” Huhtala, 401 Mich. at 130
(emphasis added).
6
to be anticipated.”10 Here, plaintiffs’ injuries resulting from the uncapped pipe were
unquestionably foreseeable.
The National Fuel Gas Code highlights the foreseeable nature of an accident
resulting from an uncapped gas pipe. The code addresses the safe installation and
removal of gas piping systems, appliances, and equipment. It provides, in pertinent part:
Each [gas] outlet, including a valve or cock outlet, shall be securely
closed gastight with a threaded plug or cap immediately after installation
and shall be left closed until the gas utilization equipment is connected
thereto. Likewise, when the equipment is disconnected from an outlet and
the outlet is not to be used again immediately, it shall be securely closed
gastight.
* * *
The basic concept here is that a plug or cap closure is required for all
gas openings. Closing a valve is not enough to satisfy this requirement
because the valve may be opened accidentally or by an unknowing person.
No temporary or makeshift closure is permitted because anything except a
cap or proper plug could leak.[11]
The code makes clear that gas pipes must be capped to prevent accidents. Moreover, it
advises that merely closing a valve is insufficient because the valve could be accidentally
opened by a person unfamiliar with gas lines.
James Asaro, a former employee of defendant Exel Direct, Inc., gave deposition
testimony that delivery drivers and installers like Pritchard and Dameron were provided
extensive training. They were taught what to do when faced with installing an electric
dryer in a space where a gas dryer had been removed and an uncapped gas pipe remained.
10
Schultz, 443 Mich. at 452 n 7 (emphasis added).
11
National Fuel Gas Code, § 3.8.2, pp 78-79 (1996) (emphasis added).
7
Asaro specifically testified that installers were trained to ascertain that the valve for a gas
line is turned off and then to either cap the open pipe or bolt it closed. As Asaro noted,
an electric dryer installed so that it masks an uncapped gas pipe is an “accident waiting to
happen.” Consequently, plaintiffs have presented forceful evidence that the dangers of an
uncapped gas pipe and the attendant risk of injury are entirely foreseeable. Plaintiffs
have shown that, in this case, the risks were foreseeable to the installers.
The third criterion relevant to determining whether a duty exists is the burden on
the defendant. The burden of verbally warning a homeowner of the dangers presented by
an uncapped gas pipe before concealing it is minuscule. This factor also weighs heavily
in favor of imposing a duty on the installers.
In sum, I would impose on the installers a simple duty to warn. I do not believe
that the installers should be under a duty to investigate any and all potential hazards in
plaintiffs’ home. Rather, the scope of their duty should be limited to the area they
occupied and in which they installed the electric dryer, which in this case contained the
uncapped gas pipe. Their duty should not extend to areas in plaintiffs’ home in which
they did not work or that they did not even traverse. Nor should it extend to potential
hazards unrelated to the dryer or its installation.
The final factor to consider when determining whether a duty exists is the nature
of the risk presented. This factor also weighs in favor of imposing a duty to warn on
defendants. We have recognized the potential risk posed by natural gas on numerous
occasions, describing it as a “highly dangerous substance”12 and recognizing that
12
Fleegar v Consumers Power Co, 262 Mich. 537, 544; 247 N.W. 741 (1933) (“A gas
company, since it is dealing with a highly dangerous substance, is bound to use a degree
8
“[a]nyone dealing with this commodity, because of its dangerous propensities, must
exercise such care for the safety of others . . . .”13 Hence, the great danger presented by a
gas leak warrants imposing a duty to warn on the installers.14
The majority considers the relationship of the parties and concludes that it does
not weigh in favor of imposing a duty. It claims that because Marcy Hill was “aware of
the pipes in the kitchen niche,” she should have made “further inquiries regarding the
nature of the pipes.”15 But it admits that Hill testified that she thought the pipe in
question was a water line. Thus, she did not make further inquiries about it and was
unaware that leaving it uncapped posed any danger of gas leakage. The pipe was
of care commensurate with the danger of its gas escaping and causing injury or damage
to the person or property of others.”).
13
Gadde v Mich Consol Gas Co, 377 Mich. 117, 126; 139 NW2d 722 (1966) (“As we
have seen, gas has long been regarded as a dangerous substance. Anyone dealing with
this commodity, because of its dangerous propensities, must exercise such care for the
safety of others as a reasonably prudent man would exercise in the face of such potential
danger.”).
14
The majority discusses Girvan v Fuelgas Co, 238 Mich. App. 703, 714; 607 NW2d 116
(1999), which held that a gas supplier has “a duty to ensure that its product is delivered
safely to the exterior of the premises of the end user but, in the absence of an agreement
to do otherwise, that duty does not extend to the inspection of the interior lines . . . .”
Ante at 13 n 37. Girvan further noted that, “[c]ognizant of these risks, the reasonable
person should seek expert assistance when dealing with dangerous commodities on the
person’s premises.” Girvan, 238 Mich. App. at 714. The majority fails to recognize that
plaintiffs did seek experts to install their electric dryer. Those experts were Pritchard and
Dameron.
15
Ante at 18.
9
invisible to her when it began to emit gas. She had no idea where the gas was coming
from.16
The majority makes a leap of logic in concluding that because Hill knew that the
pipe was there, she had constructive notice that it was dangerous. The record contains no
evidence that plaintiffs were aware of the danger that the uncapped gas pipe posed.
Indeed, knowledge of the existence of what Hill believed was a water line is entirely
distinct from knowledge of the dangers of natural gas. The majority thus confuses
plaintiffs’ knowledge of the dangers of natural gas with plaintiffs’ knowledge of the
dangers of an uncapped gas line. There is no evidence that plaintiffs were aware of the
danger of the uncapped pipe protruding from the wall of their laundry nook.
Accordingly, the cases relied on by the majority holding that there is no duty to warn of a
risk of which a person is constructively aware are inapposite.
DEFENDANTS OWED PLAINTIFFS A LEGAL DUTY NOT TO MAKE AN
EXISTING DANGER WORSE
The majority next concludes that the installation of the electric dryer did not create
a new dangerous condition or make an existing danger worse. Its analysis of this issue
strains credibility.
In Fultz v Union-Commerce Associates, a majority of this Court held that a
defendant’s duty in tort must be separate and distinct from the defendant’s duty in
16
The majority claims that Hill could have capped or removed the gas line herself or
called the gas company when she smelled gas. Ante at 16. This statement is wholly
irrelevant to the question before us, which is whether the installers owed plaintiffs a legal
duty in tort. These considerations would be relevant to a determination of comparative
negligence and would arise only if this case were to proceed to trial.
10
contract.17 As discussed earlier, I would hold that the installers owed plaintiffs common
law duties in tort that were separate and distinct from their contractual duties. Fultz
identified one class of cases in which a contracting party would owe a duty separate and
distinct from a contract—cases in which a defendant’s conduct worsens an existing
hazard.18 Nothing in Fultz undermines the general common law duty to act in a
nonnegligent manner. Thus, Fultz’s analysis with respect to new dangerous conditions
represents only one way in which a party can establish a duty separate and distinct from a
contractual obligation. In this respect, Fultz is entirely consistent with Loweke v Ann
Arbor Ceiling & Petition Co, LLC, which held that “a separate and distinct duty to
support a cause of action in tort can arise by . . . the generally recognized common-law
duty to use due care in undertakings . . . .”19
The installers undertook to install plaintiffs’ electric dryer. Plaintiffs allege they
were negligent in doing so. Thus, for purposes of that duty, it is entirely irrelevant
whether their purported negligence worsened an existing hazard. The proper inquiry, as
framed earlier, is whether the installers owed plaintiffs a general duty to act in a
reasonable manner. This is because, irrespective of any alleged new hazard, they had a
duty to use reasonable care when installing the dryer.20
17
Fultz v Union-Commerce Assoc, 470 Mich. 460, 467; 683 NW2d 587 (2004). I remain
committed to my concurring opinion in Fultz. Id. at 470-476.
18
Id. at 468-469.
19
Loweke, 489 Mich. at 170.
20
Id.; see also Clark, 379 Mich. at 261 (1967) (stating that a duty “may arise generally by
operation of law under application of the basic rule of the common law, which imposes
on every person engaged in the prosecution of any undertaking an obligation to use due
11
However, under Fultz, the installers also owed plaintiffs a duty not to worsen an
existing hazard. Their installation of the electric dryer concealed from view the uncapped
gas pipe behind it. Thus, even if plaintiffs knew at some point that dangerous gas was
escaping into their home, the source of that gas was concealed from them. Plaintiffs’
expert witness specifically testified that the installation increased the hazard to plaintiffs
because they could no longer see the uncapped pipe. Plaintiffs’ expert further explained
that the installers should have advised plaintiffs that they could not proceed with the
dryer’s installation until the gas pipe was capped.
In sum, the installers owed plaintiffs a general common law duty to use due care
when installing the electric dryer. This duty existed regardless of whether the installers’
alleged negligence created a new hazard or increased the danger of an existing hazard.
They also owed plaintiffs a duty not to worsen an existing hazard.
CONCLUSION
The majority concludes that the installers owed no legal duty to plaintiffs sounding
in tort. This conclusion is fatally flawed because, in fact, the installers owed at least two
tort-based duties.21
care, or to so govern his actions as not to unreasonably endanger the person or property
of others”); Ellis v McNaughton, 76 Mich. 237, 241; 42 N.W. 1113 (1989) (“But, if the
agent once actually undertakes and enters upon the execution of a particular work, it is
his duty to use reasonable care in the manner of executing it, so as not to cause any injury
to third persons which may be the natural consequence of his acts . . . .”) (quotation
marks and citation omitted).
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The liability of the defendants is interrelated because the installers had an agency
relationship with the defendants who sold and delivered the washer and dryer.
12
First, the majority opines that the installers owed no tort duty to plaintiffs because
the parties’ relationship was limited. This is incorrect. The parties had a relationship that
required the installers to use due care when installing plaintiffs’ electric dryer. As a
consequence, in addition to their contractual duties, the installers had a common law duty
to exercise reasonable safeguards to protect plaintiffs from harm. Accordingly, they had
a duty to warn plaintiffs of the danger they encountered in plaintiffs’ home in the spot
where they installed the dryer and of which plaintiffs were ignorant.
The majority suggests that plaintiffs were not ignorant of the danger of the gas
pipe and that their knowledge of the danger of escaping gas justifies summary disposition
for all defendants. Yet that conclusion depends entirely on imputing to plaintiffs
knowledge of the danger, given that plaintiffs testified that they believed the pipe was a
water pipe. The majority cites no authority for the proposition that knowledge of an
uncapped water pipe is a sufficient basis to impute to someone knowledge that gas may
escape from that pipe. I suspect no such authority exists. At best, what plaintiffs knew
about the pipe is a factual question whose very existence prevents summary disposition.
Second, the majority concludes that the installers did not make an existing
condition more dangerous when they hid the uncapped gas pipe from view by installing
the dryer in front of it. Thus, it postulates as perfectly credible that a hidden uncapped
gas pipe poses not a whit more danger than one in plain view. Absent this highly
questionable conclusion, the majority’s finding of no duty cannot stand. The majority
does not explain how it can be that the visible danger and the invisible danger are legally
indistinguishable.
13
I would hold that the installers owed plaintiffs a common law duty to use due care
when installing their electric dryer. This included warning plaintiffs of a danger in the
spot where they installed the dryer and of which plaintiffs were ignorant. I would also
hold that the installers owed a duty to plaintiffs not to worsen the danger represented by
the uncapped gas pipe by obscuring it with a dryer. Accordingly, I respectfully dissent.
Marilyn Kelly
Michael F. Cavanagh
Diane M. Hathaway
14