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. Stephen J. Markman 

# Opinion

**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 ice**  **covered 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 “viola tion 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 K ELLY**  **’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 f ails 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 T**  **HE M**  **AJORITY ’**  **S I**  **NTERPRETATION IS O**  **VERLY E**  **XPANSIVE The majority notes**  **2 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 observes 3**  **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 cites**  **5 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.** Sherman 7 **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 H ELPFUL**  **H YPOTHETICAL**  **E XAMPLE**  **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 third**  **party 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 n ew 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.** 
**C ONCLUSION**  **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 p**  **remises 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**