Michigan Court of Appeals; Docket #356369; Unpublished
Judges Gleicher, Gadola, and Yates; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s denial of Defendant DTE Energy Company’s (“DTE”) motion for summary disposition, in which DTE sought dismissal of Plaintiff Ryan Shami’s third-party action against it. The Court of Appeals held that DTE owed no duty to Shami—a pedestrian, hit by a car at night, at a crosswalk nearby a nonfunctional DTE streetlight—to repair the streetlight, a breach of which would give rise to a negligence action against DTE.
Ryan Shami was crossing a four-lane road near the University of Michigan’s campus at approximately 10 p.m., when a motor vehicle driven by Denise Ann Ramsey crashed into him. Shami proceeded to file a negligence action against both Ramsey and DTE, the latter of which owned and operated the streetlight nearest the crosswalk in question, which was not working at the time Ramsey struck Shami. During discovery, Shami produced evidence both that the nonfunctional streetlight caused the area around the crosswalk to be very dark, and that DTE had been notified of the streetlight’s nonfunctionality months prior, but failed to repair it in accordance with its own policies, which require such repairs to be made within five days of notification. Despite this evidence, DTE moved for summary disposition, arguing that it owed no duty to pedestrians to fix streetlights, and thus could not be held liable for negligence. The trial court disagreed, denying DTE’s motion.
The Court of Appeals reversed the trial court’s denial of DTE’s motion, holding that DTE did not, in fact, owe any duty to Shami to ensure that the streetlight in question was operational. Preliminarily, the Court noted that a duty can only be created by statute, by contract intended to benefit the injured person, specifically, and by the common law. The Court found no statutory duty owed by power companies to maintain their streetlights. The Court then turned to the issue of whether the contract between DTE and Ann Arbor created an independent duty to pedestrians to maintain the streetlights, holding that it did not. As the Michigan Supreme Court explained in Fultz v Union Commerce Assocs, 470 Mich 460 (2004), a nonparty to a contract can only bring a tort claim arising out of that contract if the defendant contractor engaged in misfeasance. In this case, Shami’s claim against DTE sounded in nonfeasance. Lastly, the Court found that DTE owed no common law duty to unrelated third parties to repair its streetlights. Such a duty can only be imposed if a party to the contract ‘create[s] a new risk of harm,’ which in this case, the Court held that DTE did not do by failing to repair its streetlights.
Shami has cited no statutory duty owed by DTE to maintain the street lighting system in question. DTE undertook to provide street lighting in Ann Arbor under a contract with the city. . . .
In Fultz, the Supreme Court outlined when a duty exists between a defendant and a plaintiff who is not a party to the contract: ‘the threshold question is whether the defendant owed a duty to the plaintiff that is separate and distinct from the defendant’s contractual obligations. If no independent duty exists, no tort action based on a contract will lie.’ Fultz, 470 Mich at 467.
In determining whether an independent duty exists, the Fultz Court explained that ‘our courts have drawn a distinction between misfeasance (action) and nonfeasance (inaction) for tort claims based on a defendant’s contractual obligations. We have held that a tort action will not lie when based solely on the nonperformance of a contractual duty.’ . . .
The take-away from the Fultz/Loweke duet is that an injured plaintiff may pursue a tort claim arising out of a contractual promise if the defendant engages in a wrongful action. By acting, a negligent defendant assumes a duty of care. That is not the case here.
Shami’s complaint against DTE sounds in nonfeasance. He alleged that DTE failed to repair streetlights as required by its contract with the city. There is no precedent for imposing a general common-law duty on utility companies for the failure to repair a nonoperational streetlight. Rather, to impose a common-law duty on a defendant to protect an unrelated third party, the defendant must have ‘create[d] a new risk of harm’ . . .
Had Shami been electrocuted by streetlight equipment, there may be grounds to find a duty in this case. But there is nothing inherently dangerous about a streetlight. And DTE did not create a new peril by installing the streetlights or by failing to repair them. Absent a duty, no court could find DTE liable to Shami and the circuit court was required to dismiss Shami’s negligence complaint against DTE.”