Michigan Supreme Court 

Lansing, Michigan 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor 

Robert P. Young, Jr. Opinion Stephen J. Markman 

SANDRA GAIL FULTZ and OTTO FULTZ, 

FILED JULY 14, 2004 

Plaintiffs-Appellees, 

v No. 121613 

UNION-COMMERCE ASSOCIATES,

COMM-CO EQUITIES, NAMER JONNA,

ARKAN JONNA, LAITH JONNA, MOHSIN

KOUZA, and GLADYS KOUZA, 

Defendants, 

and 

CREATIVE MAINTENANCE, LTD., 

Defendant-Appellant. 

_______________________________ 

BEFORE THE ENTIRE BENCH 

CORRIGAN, C.J. 

This case arises from an injury that plaintiff 

Sandra Fultz sustained when she slipped and fell on an 

icy parking lot owned by defendant Comm-Co Equities 

(Comm-Co). We reverse the Court of Appeals decision 

holding a snow removal contractor, defendant Creative 

Maintenance Limited (CML), responsible for plaintiff’s 

injury on the basis of its alleged failure to plow or 

salt the parking lot. The injured plaintiff has no 
cause of action against CML because it breached no 

duty owed to plaintiff. The injured plaintiff’s 

husband filed a loss of consortium claim. Because 

this claim is derivative of her cause of action, this 

claim necessarily fails as well. Plaintiff's remedy 

lies solely against the premises owner. The threshold 

question for negligence claims brought against a 

contractor on the basis of a maintenance contract 

between a premises owner and that contractor is 

whether the contractor breached a duty separate and 

distinct from those assumed under the contract. 

Because the contractor in this case, CML, owed no duty 

to plaintiff, her claim fails. The Court of Appeals 

thus erred in affirming the jury verdict for 

plaintiff. Accordingly, we reverse the judgment of 

the Court of Appeals. 

I. FACTS AND PROCEDURAL HISTORY 

Plaintiff fell and injured her ankle while 

walking across defendant Comm-Co’s snow- and icecovered parking lot. Defendant CML had previously 

entered an oral contract with defendant Comm-Co to 

provide snow and salt services for the lot. At the 

time plaintiff fell, CML had not plowed the lot in 

2
 
approximately fourteen hours and had not salted the 

parking lot. 

Plaintiff sued Comm-Co and CML for negligence. 

The trial court entered a default judgment against 

defendant Comm-Co, which is not a party to this 

appeal. The jury found no breach of the oral contract 

between defendants CML and Comm-Co, but awarded 

plaintiff compensatory damages after finding that 

defendant CML had been negligent by failing to perform 

under the contract and that CML's negligence was the 

proximate cause of plaintiff’s injuries. 

The Court of Appeals affirmed the jury's verdict. 

It held that Osman v Summer Green Lawn Care, Inc, 209 

Mich App 703; 532 NW2d 186 (1995), compelled the 

conclusion that defendant CML owed a common-law duty 

to provide the contracted snow removal service in a 

reasonable manner. The Court of Appeals further 

concluded that CML breached this duty by failing to 

perform its contractual obligation. 

We granted defendant CML's application for leave 

to appeal limited to two issues: (1) whether 

plaintiff can establish a duty owed her arising from a 

contract to which she was not a party and (2) whether 

3
 
a landowner's defenses are available to a contractor 

acting for the landowner. 468 Mich 882 (2003). 

We need not reach the second question regarding 

defenses because we hold, as a matter of law, that 

defendant owed no contractual or common-law duty to 

plaintiff to plow or salt the parking lot. 

II. STANDARD OF REVIEW 

Whether defendant CML owed a duty to plaintiff is 

a question of law. We review de novo questions of 

law. Byker v Mannes, 465 Mich 637, 643; 641 NW2d 210 

(2002). 

III. DISCUSSION AND ANALYSIS 

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). 

4
 
 

Plaintiff does not claim that any statute or 

ordinance imposes a duty on CML to maintain the 

parking lot where she was injured, nor does she claim 

that she was a third-party beneficiary of the contract 

between defendant CML and the premises owner. She 

contends instead that defendant CML, by contracting to 

plow and salt the parking lot, owed a common-law duty 

to plaintiff to exercise reasonable care in performing 

its contractual duties. Plaintiff further alleges 

that defendant’s failure to plow or salt the parking 

lot breached that duty under the common-law tort 

principles expressed in Restatement Torts, 2d, § 324A: 

One who undertakes, gratuitously or for

consideration, to render services to another

which he should recognize as necessary for

the protection of a third person or his

things, is subject to liability to the third

person for physical harm resulting from his

failure to exercise reasonable care to 

protect [sic, perform][1] his undertaking, if 

* * * 

(b) he has undertaken to perform a 

duty owed by the other to the third person. 

. . . 

Michigan courts have accepted the Restatement of 

Torts, 2d, § 324A, as an accurate statement of 

Michigan law and used the principles stated above in 

1

This is evidently a typographical error. 

5
 
 

analyzing plaintiffs’ claims in the past. See, e.g., 

Smith v Allendale, 410 Mich 685; 303 NW2d 702 (1981);, 

Callesen v Grand Trunk W R Co, 175 Mich App 252; 437 

NW2d 372 (1989), Cleveland Cunningham v Continental 

Cas Co, 139 Mich App 238; 361 NW2d 780 (1984), 

Staffney v Michigan Millers Mut Ins Co, 140 Mich App 

85; 362 NW2d 897 (1985), Schanz v New Hampshire Ins 

Co, 165 Mich App 395; 418 NW2d 478 (1988). 

While these opinions have endorsed § 324A, they 

must not be invoked uncritically or without regard to 

limiting principles within our case law. As we stated 

in Smith, supra at 713: 

Unlike a statute which expresses a 

legislative directive for the treatment of

future cases, the Restatement seeks 

primarily to distill the teachings of 

decided cases and is descriptive. . . . Even

where a particular Restatement section has

received specific judicial endorsement,

cases where that section is invoked must be 

decided by reference to the policies and

precedents underlying the rule restated. 

Thus, we must reconcile the principles expressed in § 

324A with our case law that limits their breadth. 

If one voluntarily undertakes to perform an act, 

having no prior obligation to do so, a duty may arise 

to perform the act in a nonnegligent manner. Home Ins 

Co v Detroit Fire Extinguisher Co, Inc, 212 Mich App 

522, 529; 538 NW2d 424 (1996); Osman, supra; Keeton, 

6
 
Prosser & Keeton, Torts, § 56, pp 380-381 (5th ed, 

1984). 

We described this common-law duty in Clark v 

Dalman, 379 Mich 251; 150 NW2d 755 (1967): 

Actionable negligence presupposes the 

existence of a legal relationship between

parties by which the injured party is owed a

duty by the other, and such duty must be

imposed by law. . . . 

* * * 

Such duty of care may be a specific

duty owing to the plaintiff by the 

defendant, or it may be a general one owed

by the defendant to the public, of which the

plaintiff is a part. Moreover, while this

duty of care, as an essential element of

actionable negligence, arises by operation

of law, it may and frequently does arise out

of a contractual relationship, the theory

being that accompanying every contract is a

common-law duty to perform with ordinary

care the thing agreed to be done, and that a

negligent performance constitutes a tort as

well as a breach of contract. [Id. at 260­

261.] 

In defining the contours of this common-law duty, 

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. See Hart v Ludwig, 347 Mich 559; 79 

NW2d 895 (1956); Chase v Clinton Co, 241 Mich 478; 217 

7
 
 

NW 565 (1928); Churchill v Howe, 186 Mich 107; 152 NW 

989 (1915). 

This Court described the nonfeasance/misfeasance 

dichotomy in Williams v Cunningham Drug Stores, Inc, 

429 Mich 495, 498-499; 418 NW2d 381 (1988): 

In determining standards of conduct in

the area of negligence, the courts have 

made a distinction between misfeasance, or

active misconduct causing personal injury,

and nonfeasance, which is passive inaction

or the failure to actively protect others

from harm. The common law has been slow in 

recognizing liability for nonfeasance 

because the courts are reluctant to force 

persons to help one another and because such

conduct does not create a new risk of harm 

to a potential plaintiff. Thus, as a general

rule, there is no duty that obligates one

person to aid or protect another. 

In Hart, supra at 564-565, this Court opined that 

the misfeasance/nonfeasance distinction is often 

largely semantic and somewhat artificial: 

The division thus made, between 

misfeasance, which may support an action 

either in tort or on the contract, and the

nonfeasance of a contractual obligation,

giving rise only to an action on the 

contract, is admittedly difficult to make in

borderland cases. There are, it is 

recognized, cases in which an incident of

nonfeasance occurs in the course of an 

undertaking assumed. Thus a surgeon fails

to sterilize his instruments, an engineer

fails to shut off steam, a builder fails to

fill in a ditch in a public way. These are 

all, it is true, failures to act, each 

disastrous detail, in itself, a "mere" 

nonfeasance. But the significant similarity

relates not to the slippery distinction 

8
 
between action and nonaction but to the 

fundamental concept of "duty”; in each a

situation of peril has been created, with

respect to which a tort action would lie

without having recourse to the contract 

itself. [Citations omitted.] 

We believe the “slippery distinction” between 

misfeasance and nonfeasance of a duty undertaken 

obscures the proper initial inquiry: Whether a 

particular defendant owes any duty at all to a 

particular plaintiff. 

This Court and the Court of Appeals have defined 

a tort action stemming from misfeasance of a 

contractual obligation as the “violation of a legal 

duty separate and distinct from the contractual 

obligation.” Rinaldo's Constr Corp v Michigan Bell Tel 

Co, 454 Mich 65, 84; 559 NW2d 647 (1997); see, also, 

e.g., Ferrett v Gen Motors Corp, 438 Mich 235, 245; 

475 NW2d 243 (1991); Sherman v Sea Ray Boats, Inc, 251 

Mich App 41, 48; 649 NW2d 783 (2002). 

We believe that the “separate and distinct” 

definition of misfeasance offers better guidance in 

determining whether a negligence action based on a 

contract and brought by a third party to that contract 

may lie because it focuses on the threshold question 

of duty in a negligence claim. As there can be no 

breach of a nonexistent duty, the former 

9
 
 

 

 

misfeasance/nonfeasance inquiry in a negligence case 

is defective because it improperly focuses on whether 

a duty was breached instead of whether a duty exists 

at all. 

Accordingly, the lower courts should analyze tort 

actions based on a contract and brought by a plaintiff 

who is not a party to that contract by using a 

“separate and distinct” mode of analysis. 

Specifically, 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.2 

Applying that analysis here, the Court of Appeals 

erred in affirming the jury verdict and in holding 

that "evidence suggested that [CML] engaged in 

misfeasance distinct from any breach of contract." 

2 This understanding is entirely consistent with

the hypothetical example set out in Justice KELLY’s 

concurring opinion. The hypothetical plaintiff

described in the concurrence would have no need to 

pursue a cause of action on a third-party beneficiary

theory because that plaintiff would have a direct

cause of action against the premises owner who owed a

duty to maintain a safe premises. The premises owner

could then seek indemnification from the contractor 

for breach of a contractual duty. Thus, the 

concurrence’s concern regarding this hypothetical

plaintiff is unwarranted. 

10
 
 

 

Unpublished opinion per curiam, issued March 19, 2002 

(Docket No. 224019), p 6. In truth, plaintiff claims 

CML breached its contract with defendant Comm-Co by 

failing to perform its contractual duty of plowing or 

salting the parking lot.3 She alleges no duty owed to 

her independent of the contract. Plaintiff thus fails 

to satisfy the threshold requirement of establishing a 

duty that CML owed to her under the "separate and 

distinct" approach set forth in this opinion.4 

As noted earlier, the Court of Appeals relied on 

Osman to hold that CML owed a duty to plaintiff to 

fulfill its contractual obligation with defendant 

Comm-Co. The Court of Appeals reliance on this case 

was misplaced. 

3

 The jury, however, found no breach of contract. 

4

 Plaintiff’s claim fails using a 

misfeasance/nonfeasance analysis, as well because she

alleges that CML committed nonfeasance by failing to

perform its snow removal obligation at all. Because 

no special relationship exists between the parties in

this case, and therefore defendant owed no duty to

make safe the parking lot where plaintiff was injured,

defendant CML’s nonfeasance of its contractual 

obligation cannot satisfy the threshold requirement of

establishing a duty owed to plaintiff under either

the former misfeasance/nonfeasance dichotomy or the

“separate and distinct” approach set forth in this

opinion. 

11
 
Like the plaintiff here, the plaintiff in Osman 

was injured when she fell on a patch of ice. Also, 

like the defendant here, the defendant in Osman had 

contracted to provide snow removal services to the 

premises owner. In that case, however, the defendant 

had breached a duty separate and distinct from its 

contractual duty when it 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. [Osman, supra at 704.] 

Here, the Court of Appeals stated that given the 

snowy conditions on the day that plaintiff was injured 

[CML] had a duty to use reasonable care in 

removing dangerous ice and snow, which was 

distinct from its obligations under its contract

with Comm-Co. Moreover, the evidence suggested

that Creative Maintenance breached that duty when

it did not take reasonable steps to remove or

prevent the icy conditions that caused 

plaintiff's fall. [Slip op, p 7, (citations 

omitted; emphasis supplied.)] 

In this case, the Court of Appeals analysis is 

flawed because defendant CML’s failure to carry out 

its snow-removal duties owed to defendant created no 

new hazard to plaintiff. Thus, plaintiff alleges no 

duty owed to her by defendant CML separate and 

12
 
distinct from its contract with defendant Comm-Co. 

CML could not logically breach a duty that it did not 

owe. The Court of Appeals erred in holding that 

defendant CML was responsible for plaintiff’s injuries 

solely on the basis of the contract between defendants 

CML and Comm-Co. 

IV. CONCLUSION 

To summarize, if 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. 

We conclude in this case that, as a matter of 

law, CML owed plaintiff no duty. Accordingly, we 

reverse the judgment of the Court of Appeals. 

Maura D. Corrigan

Elizabeth A. Weaver 

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman 

13
 
_______________________________ 

 

v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

SANDRA GAIL FULTZ and OTTO FULTZ, 

Plaintiffs-Appellees, 

No. 121613 

UNION-COMMERCE ASSOCIATES,

COMM-CO EQUITIES, NAMER JONNA,

ARKAN JONNA, LAITH JONNA, MOHSIN

KOUZA, and GLADYS KOUZA, 

Defendants, 

and 

CREATIVE MAINTENANCE, LTD., 

Defendant-Appellant. 

KELLY, J. (concurring). 

I agree with the majority that the appellant, Creative 

Maintenance, Ltd., did not owe a duty to plaintiff Sandra 

Fultz. However, I cannot agree with some of the majority's 

rationale used in reaching this result. 

The issue is whether a duty exists. The majority 

opinion attempts to resolve it by recognizing the continued 

validity of Restatement Torts, 2d, § 324A.1 The opinion 

1

 Section 324A provides: 

(continued...) 
 

first appears to analyze this case under Restatement Torts, 

2d, § 324A(b). Ultimately, however, it rejects this 

provision. Instead, it limits the existence of tort 

liability that runs to persons not parties to a contract to 

situations where a duty arises “separate[ly] and 

distinct[ly]” from the duty owed under the contract. I read 

this as a conclusion that a nonparty to the contract can 

recover in tort only for damages arising out of situations 

covered by § 324A(a). The majority appears to ignore the 

situations outlined in § 324A(b) and (c). Therefore, I 

disagree with the limitations that the majority imposes on 

the existence of a duty. 

(...continued)

One who undertakes, gratuitously or for 

consideration, to render services to another 

which he should recognize as necessary for the 

protection of a third person or his things, is

subject to liability to the third person for

physical harm resulting from his failure to 

exercise reasonable care to protect [sic] his

undertaking, if 

(a) his failure to exercise reasonable care 

increases the risk of such harm, or 

(b) he has undertaken to perform a duty owed

by the other to the third person, or 

(c) the harm is suffered because of reliance 

of the other or the third person upon the 

undertaking. 

2
 
 

THE MAJORITY’S INTERPRETATION IS OVERLY EXPANSIVE 

The majority notes2 that this Court and the Court of 

Appeals have developed tests for deciding whether an action 

lies in breach of contract rather than in tort. The 

majority also observes3 that this Court and the Court of 

Appeals have defined a tort action stemming from 

misfeasance in terms of whether the "plaintiff alleges 

violation of a legal duty separate and distinct from the 

contractual obligation." Rinaldo's Constr Corp v Michigan 

Bell Tel Co, 454 Mich 65, 84; 559 NW2d 647 (1997). 

However, after reviewing the cases cited by the majority, I 

conclude that it is taking a more expansive view of that 

definition than has been taken previously. 

The existence of a "duty separate and distinct from 

the contractual obligation,"4 has been identified 

historically as a dividing line between tort and contract 

obligations. Thus far, however, this rule has been applied 

only to disputes involving the parties to a contract. In 

those cases, the one harmed by a breach of the contract 

could not recover both in contract and in tort. 

2 Ante, pp 7-8. 

3 Ante, pp 9-10. 

4 Id. 

3
 
 

All the cases that the majority cites5 involve a duty 

allegedly separate from a contract. In Hart,6 the Court 

determined whether the plaintiff could maintain an action 

in tort against the defendant for failing to adequately 

care for the plaintiff's orchard. The parties had an oral 

contract. Sherman7 involved a plaintiff who filed a 

complaint against a boat manufacturer arising from a 

contract to sell a boat. See also Rinaldo’s, 454 Mich 79­

80, Ferrett v Gen Motors Corp, 438 Mich 235; 475 NW2d 243 

(1991), Chase v Clinton Co, 241 Mich 478, 479-480; 217 NW 

565 (1928), and Churchill v Howe, 186 Mich 107; 152 NW 989 

(1915). 

In each of these cases, the plaintiff and the 

defendant were parties to a contract. It was necessary for 

each court to determine whether a breach of the contract 

could give rise to a separate tort duty. It was necessary 

to identify what theory of recovery applied as well as what 

damages were recoverable. 

However, this case is different. The contract 

involved is not between Creative Maintenance and Fultz. As 

5 Ante, pp 8-10. 

6 Hart v Ludwig, 347 Mich 559, 560; 79 NW2d 895 (1956). 

7 Sherman v Sea Ray Boats, Inc, 251 Mich App 41; 649

NW2d 783 (2002). 

4
 
a consequence, I am not convinced that the law the majority 

invokes should be extended to this situation. 

The use of a "separate and distinct" test to determine 

whether a duty in tort arises independently of the contract 

may have appeal. However, it fails where the contract 

itself outlines a specific duty to protect third persons. 

A HELPFUL HYPOTHETICAL EXAMPLE 

By way of example, assume that a building owner hires 

a contractor to patch the building's crumbling façade to 

avoid injury to those passing near it. The contract 

explicitly states that the purpose of the contract is to 

protect the public from harm and that the contractor 

undertakes this duty. Nevertheless, the contractor 

misjudges the extent of the building’s deterioration and 

uses inadequate repair methods that, although not 

increasing the risk of falling materials, do not make the 

facade safe. Assume, moreover, that a member of the public 

sues the contractor, claiming harm from a failure to 

protect after being injured when a portion of the facade 

falls on him. To satisfy the majority's test, the 

contractor must owe a duty to the plaintiff that is 

separate and distinct from his contractual obligations. In 

this hypothetical case, application of the majority’s test 

would result in a finding of no cause of action for the 

5
 
member of the general public. This is incongruous because 

it is the general public that the contract was designed to 

protect. 

It could be argued that a member of the public might 

still sue as a third-party beneficiary of the contract. 

However, this Court has recently stated that Michigan law 

does not empower incidental beneficiaries to enforce a 

contract. Koenig v South Haven, 460 Mich 667, 679-680; 597 

NW2d 99 (1999) (opinion by Taylor, J.); Schmalfeldt v North 

Pointe Ins Co, 469 Mich 422, 427-428; 670 NW2d 651 (2003); 

MCL 600.1405. Rather, a person can be a third-party 

beneficiary of a contract only when the promisor undertakes 

an obligation "directly" to or for that person. Koenig, 

supra; Schmalfeldt, supra. 

In Koenig, the author of the lead opinion wrote: 

"[T]his Court has adopted the persuasive rule that a thirdparty beneficiary 'may be one of a class of persons, if the 

class is sufficiently described or designated.'" Koenig, 

supra at 680 (citations and emphasis omitted). But the 

benefit of such a contract cannot run to a member of the 

general public. Id.; Schmalfeldt, supra at 428. 

Therefore, in the hypothetical case, a third-party 

member of the public could not recover from the actual 

tortfeasor either under the contract or in tort. I do not 

6
 
agree with this proposition. It is particularly 

distressing because the majority's new analysis of these 

claims could leave innocent persons without recourse to 

redress their injuries. Such persons may be precluded from 

recovering either from the tortfeasor or from the 

tortfeasor’s employer. 

In cases in which the jury assigns one hundred percent 

of the fault to the contractor, plaintiffs will have no 

recovery. MCL 600.2957(1) requires the jury to assess the 

percentage of fault by "consider[ing] the fault of each 

person, regardless of whether the person is, or could have 

been, named as a party to the action." Thus, while the 

contractor does not owe any duty to the plaintiff, the 

premises owner's liability will be determined according to 

the jury's allocation of fault. 

So, an innocent plaintiff, whose injury results 

entirely from the negligence of a contractor, will recover 

nothing from the premises owner. She will also have no 

cause of action against the contractor because the 

contractor owes no duty to the plaintiff. Rather than 

adopt the majority’s new test, I would recognize that in 

certain circumstances a duty under tort can arise solely 

from a contractual obligation. 

7
 
The facts of this case, as noted by the majority, are 

distinct from those in Osman v Summer Lawn Care, Inc, 209 

Mich App 703; 532 NW2d 186 (1995). Ante, p 12. In Osman, 

the defendant created a hazard by placing snow on a 

sidewalk, walkway, and steps where it should have known 

snow would melt and freeze into ice. However, the 

defendant's actions there gave rise to a tort claim under 

the theory embodied in Restatement Torts, 2d § 324A(a), not 

under the theory in § 324A(b). 

The latter subsection contemplates a situation in 

which the defendant assumes the duty owed by the other 

contracting party. The majority ignores this subsection in 

its decision to require a duty "separate and distinct" from 

the contract. 

CONCLUSION 

Plaintiff maintains that the Court of Appeals was 

correct when it found that a duty separate from the 

contract was at issue in the instant case. However, 

plaintiff assumes that every agreement to undertake a task 

for another equates to an agreement to undertake the duty 

owed by the other to a third person. This is not accurate. 

Such a comprehensive assumption of duty has been 

described in at least one jurisdiction as a case "where the 

contracting party has entirely displaced the other party's 

8
 
duty to maintain the premises safely . . . ." Espinal v 

Melville Snow Contractors, Inc 98 NY2d 136, 140; 773 NE2d 

485 (2002). 

At the least, to undertake a duty pursuant to § 

324A(b), the contracting party must clearly have agreed to 

fulfill the other party's obligation, together with the 

inherent responsibilities and potential liabilities. Such 

an agreement would meet the reasonable expectations of the 

contracting parties. It would also allow the plaintiffs an 

avenue of recovery where the duty to act is not necessarily 

separate and distinct from the duties spelled out in the 

contract itself. 

Here, there is no evidence that the contract between 

Creative Maintenance and the shopping center contemplated 

that Creative would assume the duties that the center owed 

to the center's business invitees. Thus, Fultz failed to 

establish that Creative Maintenance owed her a duty under § 

324A(b). 

Accordingly, I concur with the result reached by the 

majority. 

Marilyn Kelly

Michael F. Cavanagh 

9