explaining that a duty generally arises by “operation of law,” but also can “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”
How later courts described this case
- explaining that a duty generally arises by “operation of law,” but also can “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”
- 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 care, or to so govern his actions as not to unreasonably endanger the person or property of others”
- recognizing that “the generally recognized common-law duty to use due care in undertakings” could apply to a professional negligence claim
- affirming the theory that 'accompanying every contract is a common law duty to perform with ordinary care the thing agreed to be done'
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds, implicitly by Fultz v. Union-Commerce Associates, 470 Mich. 460 (2004)
150 NW2d 755 (1967), impliedly overruled on other grounds by Fultz v Union-Commerce Assoc, 470 Mich 460 , 683 NW2d 587
Distinguished
Distinguished by Derbabian v. S & C Snowplowing, Inc, 249 Mich. App. 695 (2002)
Accordingly, Clark and Auto-Owners are distinguishable from the instant case; indeed, this case is more akin to Hart v Ludwig, 347 Mich 559; 79 NW2d 895 (1956), and Freeman-Darling, Inc v ASR, Inc, 147 Mich App 282, 284-286; 382 NW2d 769 (1985).
The opinion
Black, J.
(concurring in reversal). I find no occasion for determination of question whether the breach of a contract, entered into by others, may create a legal duty owing by the party guilty of such breach to a personally injured third person.
Regardless of the breach claimed, .this plaintiff has fairly presented a submissible case of actionable negligence. The jury was authorized upon the record made before it to find that defendant should have advised the plaintiff’s employers promptly that an extremely slippery substance known, as NO-OX-ID had just been applied throughout the inside *265 of the elevated tank. Defendant’s duty in such regard arose, on favorable view of course, from the bare fact of knowledge on his part that the substance as applied was extremely slippery and that employees of Williams & Works were due regularly to enter the inside of the tank for inspection purposes. On similar view one may not doubt reason-; ably that the interior of the tank was precedently known by defendant to be unsafe for all, not possessed of knowledge of such recent application of NO-OX-ID, who might have legal occasion to enter it.
As for the defense of contributory negligence it need only be said that the want of due warning, if found by the jury, rendered the question one for jury determination. We have said several times, following Detroit & M. R. Co. v. Van Steinburg, 17 Mich 99 , that the question of contributory negligence depends in part upon what in the way of conduct the plaintiff reasonably might have expected of the defendant. If there was no warning as claimed, then the jury could have found justifiably that plaintiff proceeded toward the inspection on assumption that the inside of the tank was in the same condition as to safety as when last inspected; only to be confronted in total darkness, lifted only by flashlight, with that which caused his fall to the bottom of the tank. The question of due care on his part was an issue with respect to which the defendant bore the burden of persuasion. It was for the jury to say whether, in the circumstances presented, he was or was not guilty of causal negligence.
The judgments of both courts should be reversed, with an award of costs of all courts to plaintiff.
Dethmers, C. J., concurred with Black, J,
*266 1.