1

Joy Davis’s husband, James Davis, is also a plaintiff in this action, claiming damages based on

loss of consortium.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0197p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JOY DAVIS; JAMES DAVIS, 

Plaintiffs-Appellants,

v.

VENTURE ONE CONSTRUCTION, INC.,

Defendant-Appellee.

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No. 08-1439

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 06-11950—Nancy G. Edmunds, District Judge.

Argued: May 1, 2009

Decided and Filed: June 3, 2009 

Before: KENNEDY, GIBBONS, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: Alan B. Posner, KELMAN LORIA, PLLC, Detroit, Michigan, for Appellants.

Janet C. Barnes, SECREST WARDLE, Farmington Hills, Michigan, for Appellee.

ON BRIEF: Alan B. Posner, KELMAN LORIA, PLLC, Detroit, Michigan, for Appellants.

Michael L. Updike, SECREST WARDLE, Farmington Hills, Michigan, for Appellee.

_________________

OPINION

_________________

KENNEDY, Circuit Judge. Plaintiff Joy Davis1

 appeals the district court’s grant

of summary judgment to Venture One Construction, Inc. (“Venture One”) on her claim

for injuries sustained when, during a remodeling of her employer’s premises, a door,

temporarily removed and stored outside of the construction zone, fell on her because it

1
No. 08-1439 Davis, et al. v. Venture One Construction, Inc. Page 2

2

Blank was Venture One’s servant. See Saums v. Parfet, 258 N.W. 235, 237-238 (Mich. 1935)

(a servant is “in the employ and subject to the direction or control of another in any department of labor

or business”). An independent contractor, contrasted with a servant, is not “subject to control of his

employer as to the means by which the result is to be accomplished, but only as to the result of the work.”

Utley v. Taylor & Gaskin, Inc., 9 N.W.2d 842, 846 (Mich. 1943). Ample evidence exists that Ellis, if

unsatisfied with the way Blank stored the door, could and should have dictated a different method of

storage.

was stored upright and where, if placed there at all, it should have been laid on its side

at an angle. Because the district court erred in concluding that defendant had no duty

to plaintiff, we reverse and remand for further proceedings.

I.

Davis worked at a Pilot Travel Center in Monroe County, Michigan. Pilot had

contracted with Venture One to remodel certain areas within the Pilot facility. The

primary purpose of the contract was to relocate a Subway sandwich shop within the

travel center. While construction was taking place, an original door was unhinged,

removed, and leaned upright against a wall in a backroom outside of the construction

zone. Unhinged doors should have been stored outside near the dumpster so as to be

away from Pilot employees and members of the general public.

James Blank, proprietor of JDB Design, a subcontractor of Venture One2

 which

performed finishing work on the remodeling job, testified in a deposition that he and one

of his employees moved the unhinged the door and leaned it in the backroom. He

testified that he did not move it out to the dumpster storage area because it was to be

used at a later time and that Brian Ellis, the Venture One superintendent on the

remodeling project, was aware that the door was stored there.

Ellis swore in an affidavit that neither he “nor any Venture One employee

removed the door in question and stored it in the cooler area [in the backroom].” He

further testified that he had no knowledge of the door’s being leaned in that way, but

there is a factual dispute regarding his knowledge. Ellis also testified that if he had seen

a door propped vertically against an interior wall, he would have recognized it as a

hazard and would have required someone to move it. Greg Kovach, President of

Venture One, testified that Ellis, in his role as construction manager, was tasked with
No. 08-1439 Davis, et al. v. Venture One Construction, Inc. Page 3

remedying hazards outside of the construction zone. Sherlyn Rice, the Subway manager

at that Pilot location, testified that Ellis in fact entered the backroom “all the time” and

failed to remedy the leaned door whose method of temporary storage he could not have

failed to observe.

Remodeling work began on November 1, 2005. Rice testified that the door was

removed and placed in the backroom on the first day of the remodeling job. On

November 15, 2005, Davis went into the backroom to retrieve a dustpan and broom

when the door fell on her back, causing her injuries.

II.

Relying on Michigan law in this diversity case, and especially on Fultz v. UnionCommerce Assocs., 683 N.W.2d 587 (Mich. 2004), the district court held Venture One

had no duties toward Davis arising from its contract with her employer. The district

court recognized, quoting Fultz, 683 N.W.2d at 592-93, that “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 contract will lie.” The district court acknowledged Davis’s argument that while

performing its contractual duties under the construction contract, defendant created a

new hazard (1) when it allowed, for an extended period of time, the presence of an

unsecured door outside the construction zone; and, relatedly, (2) when its site

superintendent, Brian Ellis, failed to move the unsecured door to a proper storage

location despite being asked to do so.

The district court ruled against Davis, holding that the door was not a new hazard

because the plain language of the construction contract imposed the duty to initiate,

maintain, and supervise construction including precautions for safety, and Davis had not

shown that a duty is owed to her independent of the contract, as illustrated in Bertz v.

Norfolk Southern Railway, No. 3:03CV7011, 2005 WL 1566758 (N.D. Ohio July 5,

2005). The district court explained that: (1) the construction contract contemplated the

leaned-door hazard; and (2) this case represents a failure to carry out a contractual duty,

as in Fultz, which does not give rise to a separate and distinct duty. Combining these
No. 08-1439 Davis, et al. v. Venture One Construction, Inc. Page 4

two considerations, the district court emphasized that Venture One’s “failure to

adequately initiate, maintain, and supervise safety measures during construction at the

Pilot Travel work site” was a failure to provide the duties required by the contract in its

contemplation of construction-site hazards. 

The contract, in relevant part, states:

§ 10.1 SAFETY PRECAUTIONS AND PROGRAMS

§ 10.1.1 The Contractor shall be responsible for initiating, maintaining

and supervising all safety precautions and programs in connection with

the performance of the Contract.

§ 10.2 SAFETY OF PERSONS AND PROPERTY

§ 10.2.1 The Contractor shall take reasonable precautions for safety of,

and shall provide reasonable protection to prevent damage, injury or loss

to:

1. employees on the Work and other persons who may be

affected thereby;

. . . .

§ 10.2.6 The Contractor shall designate a responsible member of the

Contractor’s organization at the site whose duty shall be the prevention

of accidents. This person shall be the Contractor’s superintendent unless

otherwise designated by the Contractor in writing to the Owner and

Architect.

The district court used this language from the contract to emphasize Venture One’s

duties to Pilot to supervise the safety aspects of the job. Per Fultz, the failure to perform

a job does not create a new hazard, it merely leaves alone existing hazards or allows

contemplated hazards to manifest themselves. The district court phrased its discussion

of Venture One’s actions in terms of what it did not do–the contractual duties of

prevention and supervision it did not carry out.

III.

A premises owner and a contractor enter into a contract, and a third party is

injured on the premises of the premises owner. The fundamental question at issue here

is under what circumstances does a duty of care arise between the contractor and the

third party? The Michigan Supreme Court “believe[s] [that] the ‘slippery distinction’
No. 08-1439 Davis, et al. v. Venture One Construction, Inc. Page 5

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.”

Fultz, 683 N.W.2d at 592. Rather, “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.” Id. “[T]he threshold question is whether the

defendant owed a duty to the plaintiff that is separate and distinct from the defendant’s

contractual obligations.” Id. (italics supplied).

A seminal opinion on duty by Judge Cardozo explains when a duty of care arises

to a third party. “[O]ne who assumes to act, even though gratuitously, may thereby

become subject to the duty of acting carefully, if he acts at all.” H.R. Moch Co. v.

Rensselaer Water Co., 159 N.E. 896, 898 (N.Y. 1928) (quoting Glanzer v. Shepard, 135

N.E. 275, 276 (N.Y. 1922)). The “time-honored formula” of “the [relevant] distinction

as one between misfeasance and nonfeasance” is “incomplete . . . , and so at times

misleading.” Id. Instead, the query to determine whether a duty arises to a third party

“always is whether the putative wrongdoer has advanced to such a point as to have

launched a force or instrument of harm, or has stopped where inaction is at most a

refusal to become an instrument for good.” Id. 

While time and physical proximity separate these decisions, they share the same

analytic tradition. The Court in Fultz looked at Hart v. Ludwig, 79 N.W.2d 895 (Mich.

1956), which cited and borrowed heavily from H.R. Moch. Hart, 79 N.W.2d at 896-98

(discussing H.R. Moch and borrowing the example of the surgeon who failed to sterilize

his instruments quoted by the Court in Fultz). Rinaldo’s Construction Corporation v.

Michigan Bell Telephone Company, 559 N.W.2d 647 (Mich. 1997), Ferrett v. General

Motors Corporation, 475 N.W.2d 243 (Mich. 1991), and Sherman v. Sea Ray Boats,

Incorporated, 649 N.W.2d 783 (Mich. 2002), recognized by the Court in Fultz as the

authorities supporting the definition of “a tort action stemming from misfeasance of a

contractual obligation as the violation of a legal duty separate and distinct from the

contractual obligation,” 683 N.W.2d at 591, all acknowledge Hart as the original source
No. 08-1439 Davis, et al. v. Venture One Construction, Inc. Page 6

of law for the “separate and distinct” test for duty in this context. Sherman, 649 N.W.2d

at 787; Ferrett, 475 N.W.2d at 245-46; Rinaldo’s Constr., 559 N.W.2d at 657-58.

The rule in Hart, adopted and applied in Fultz, is summarized simply: the

“defendant’s failure to complete his contracted-for performance” does not give rise to

a tort action for lack of duty. 79 N.W.2d at 898-99. Thought of in the framework of

H.R. Moch: neither mere contract nor contract and its incomplete performance advances

the defendant in its relationship with a third party to the point so as “to have launched

a force or instrument of harm” such that a duty to the third party arises, separate and

distinct from the defendant’s contractual duty. 159 N.E. at 898. In Hart, the defendant

made a verbal contract to care for and maintain the plaintiff’s orchard. 79 N.W.2d at

896. He performed the contract for one season but refused to complete performance on

the contract by returning for the following season. Id. The contract and one season of

performance did not give rise to a duty allowing suit in tort by the orchard owner for

economic loss resulting from the failure to perform the contract. Id. at 898-99. In Fultz,

applying Hart in the context of a third-party plaintiff, a snow removal contractor

contracted with a parking lot owner to remove snow and salt its lot. 683 N.W.2d at 589.

The plaintiff slipped while walking in the icy lot, as the snow removal contractor had not

“plowed the lot in approximately fourteen hours and had not salted the parking lot.” Id.

Prior performance was not relevant. The contract itself did not give rise to a duty to the

plaintiff third party. Therefore, the failure of the snow removal contractor to perform the

contract did not give rise to a duty to the plaintiff. Id. The basic import of both cases

is that a duty to perform the contracted-for services between the contractor and the third

party does not exist.

The rest of Fultz is dicta. The majority in Fultz appears to reject Restatement

(Second) of Torts § 324A(b), which states that liability of a person to a third person

arises when that person “has undertaken to perform a duty owed by [an]other to the third

person.” See Fultz, 683 N.W.2d at 594 (Kelly, J., concurring); see also Fultz, 683

N.W.2d at 592 n.2. Nevertheless, as the concurrence points out, when a contractor

agrees to a contract, it agrees to perform services for a party but does not necessarily take
No. 08-1439 Davis, et al. v. Venture One Construction, Inc. Page 7

on that party’s legal duties. Id. at 596 (Kelly, J., concurring). Whether a contractor can

agree to take on the other party’s legal duties, e.g., a snow plow contractor assuming the

parking lot owner’s legal duties to provide a reasonably safe lot, is an issue addressed

by way of hypothetical in Fultz but was not manifest in the actual facts before the court

in Fultz. Similarly, the majority’s lack of discussion of the remainder of Restatement

(Second) of Torts § 324A does not call into question its continuing viability in Michigan.

A duty of due care attaches even to one who gratuitously undertakes to render services

“if his failure to exercise reasonable care increases the risk of such [physical harm]” in

the undertaking of the service or “the harm suffered because of reliance of the other or

the third person upon the undertaking.” Restatement (Second) of Torts § 324A(a), (c).

The Fultz Court did not address these alternative avenues for a duty giving rise to

liability because, for instance, in part, the snow plow contractor was not present at the

time of the plaintiff’s injury. To ascribe liability to the contractor then would be based

entirely on its contract to plow the snow and salt the lot. The question of the contract

qua contract’s effect falls under Restatement (Second) of Torts § 324A(b).

This is a complicated way to arrive at a simple idea that is embedded deep within

the American common law of torts and that has been part of Michigan law at least since

1956 with Hart: if one “having assumed to act, does so negligently,” then liability exists

as to a third party for “failure of the defendant to exercise care and skill in the

performance itself.” 79 N.W.2d at 898. A contract between two parties does not

determine those parties’ obligations with respect to the rest of the world. Contractual

duties do not limit separately existing common law tort duties. The Court in Fultz did

not wipe away fifty years (at minimum) of precedent on this point. The majority in Fultz

might call this the creation of a “new hazard,” Fultz, 683 N.W.2d at 593, and the

concurrence might call it Restatement (Second) of Torts § 324A(a), id. at 594 (Kelly, J.,

concurring). Put differently, when a snow removal service contracts with a parking lot

owner, a duty under contract arises for the snow removal contractor to perform the

contracted-for services. No duty to maintain a reasonably safe parking lot of the lot

owner to third parties is necessarily assumed by the contractor following the creation of

the contract. No duty to perform the contract exists between the contractor and the third
No. 08-1439 Davis, et al. v. Venture One Construction, Inc. Page 8

party following the creation of the contract. No duty of due care of the contractor to the

third-party bystander exists prior to or following the creation of the contract. When the

snow plow driver gets on his plow and performs the contract, however, he has a duty to

perform it with due care toward third parties who might suffer personal injury resulting

from negligence. 

After these machinations, we return to where we began with a fuller

understanding of the rule in Fultz. A contract itself does not give rise to a duty of a

contracting party to a third party to perform the services described by the contract. A

duty, “separate and distinct” from the duty to perform the contract, arises between a

contracting party and a third party when the contracting party creates a “new hazard.”

Fultz, 683 N.W.2d at 593. However, “new hazard” does not mean a “hazard not

contemplated by the contract” as argued by Venture One. Venture One claims that we

should read the contract, note the safety precautions required by the contract, and

determine that Pilot employee safety is considered by the contract, and thus risk of injury

to them is not “new.” The requirement of a “separate and distinct” duty from a

contractual duty refers to a “separate and distinct” legal duty, not a “separate and

distinct” task or warranty as outlined in contract. A “new hazard” is an inherent

possibility in the performance of a contract. One who assumes to act–where “to act”

means more than making a contract–must exercise care and skill in taking such action.

See Hart, 79 N.W.2d at 898. A duty to act with due care is owed by a contracting party

to third parties at risk of reasonably foreseeable harm stemming from the performance

of the contract. See Valcaniant v. Detroit Edison Co., 679 N.W.2d 689, 693 (Mich.

2004) (citing Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928) (Cardozo, J.)).

Our case, then, is straightforward because Davis, the party opposing summary

judgment, has presented evidence that raises a genuine issue of material fact on the

element of duty. She presents evidence that, while construction was taking place, an

original door was unhinged, removed, and leaned upright against a wall in a backroom.

The backroom was outside of the construction zone. Pilot employees accessed this

backroom on a regular basis as part of their work. Unhinged doors should have been
No. 08-1439 Davis, et al. v. Venture One Construction, Inc. Page 9

stored outside near the dumpster so as to be away from Pilot employees and members

of the general public. The door was moved by James Blank, proprietor of JDB Design

and a subcontractor chosen by Venture One, and his employee and leaned, unsecured

and upright, in the backroom. Blank testified that he did not move it out to the dumpster

because it was to be used at a later time, and that Ellis was aware that the door was

stored there. Ellis testified that he did not know about the door, but if such a door was

stored in the way that it was, he would have recognized it as a safety hazard. In short,

persons working for Venture One increased the risk of physical injury outside of the

construction zone to nearby Pilot employees which it did not remedy. Therefore, a duty

of due care to Pilot employees from Venture One arose after persons working for

Venture One stored the door and left it leaning there. 

Venture One’s creation of a new hazard distinguishes this case from Fultz and

Bertz. In Fultz, the defendant snow removal service failed to prevent or remove the icy

conditions that caused the plaintiff’s fall. 683 N.W.2d at 593. In Bertz, the defendant

security company failed to protect the plaintiff from an existing hazard when a train

collided with a truck at a railroad crossing. 2005 WL 1566758, at *1. In neither case

did the defendant create a hazard that we might call “new” from which a duty to a third

party would arise, nor did the defendant owe the plaintiff a pre-existing duty of care. In

Bertz, the hazard of a truck on train tracks was created by the truck driver, a third party

him or herself, and the hazard of ice and snow resulted from the cold weather in Fultz.

On the other hand, Osman v. Summer Green Lawn Care, Inc., 532 N.W.2d 186 (Mich.

App. 1995), is analogous. The contract in Osman made explicit that the defendant would

“not be responsible for any damage or injury caused by slipping or falling on any

pavement surface.” Osman, 532 N.W.2d at 188. But in the course of actually

performing the contract the snow plow contractor placed 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.” Fultz, 683

N.W.2d at 593 (quoting Osman, 532 N.W.2d at 187). The defendant lacked a pre-
No. 08-1439 Davis, et al. v. Venture One Construction, Inc. Page 10

existing duty to the plaintiff, in contract or otherwise, but a duty arose out of the

defendant’s acts.

The hazard created by Venture One is a new hazard because it was outside of the

construction zone and within the area that Pilot employees worked. The district court

held that “Plaintiff was injured by the same sort of construction-site hazard that Pilot

Travel contracted with Defendant to prevent.” That defendant has assumed contractual

obligations does not limit its legal duties owed to third parties in the execution of the

contract. Just because a person acts pursuant to a contract does not mean other common

law duties disappear. Further, the hazard did not exist on the construction site, it existed

in a backroom that was outside of the construction zone. Nobody disputes this fact.

Pilot employees who access the backroom off the construction site are like pedestrians

who traverse “sidewalk[s], steps, and walkway[s]” which abut the premises upon which

the defendant has been contracted to eliminate hazards. Osman, 532 N.W.2d at 704.

Physical proximity of action is useful in determining the relationship of affirmative acts

by the defendant to third parties in determining whether a duty then arises. Similarly,

Ellis not only occupied the construction zone, according to Rice, he also entered the

backroom, inspecting it, but not remedying the hazard. When a party so acts, it owes a

duty of due care to those that it puts at foreseeable risk by hazards it creates, namely the

unhinged, leaned door left unattended. See H.R. Moch, 159 N.E. at 898.

Common law duties in tort are determined without regard to contractual duties.

Here, viewing the facts in the light most favorable to Davis, the contractor created the

hazard when persons working for it leaned and left the door unsecured in an area outside

the construction zone that it was aware that employees of Pilot used. For the foregoing

reasons, we reverse the judgment of the district court and remand for further proceedings

in accordance with this opinion.