Christopher Tucker v. Vincent Pipitone ( 2011 )

Order Michigan Supreme Court
Lansing, Michigan
July 15, 2011 Robert P. Young, Jr.,
Chief Justice
142821 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
CHRISTOPHER TUCKER, by his Guardian, Mary Beth Kelly
PAMELA WATSON, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 142821
COA: 294754
Oakland CC: 2008-095097-NO
VINCENT PIPITONE and VINCENT PIPITONE,
JR., d/b/a PRO BUILT CONSTRUCTION, PRO
BUILT CUSTOM BUILDING CORPORATION,
PRO BUILT CUSTOM BUILDING, INC.,
VINCE PRO BUILT, and IMPROVEMENTS
UNLIMITED, INC.,
Defendants,
and
RICHARD CARSON, d/b/a CARSON HOME
MAINTENANCE,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the February 15, 2011
judgment of the Court of Appeals is considered, and it is DENIED. The Court of
Appeals did not err in affirming the Oakland Circuit Court’s denial of the motion to
dismiss the plaintiff’s negligence claim against defendant Richard Carson on the
defendant’s stated basis that the plaintiff had failed to identify a legal duty that was
separate and distinct from the defendant’s contractual duties pursuant to Fultz v Union-
Commerce Assoc, 470 Mich 460, 467 (2004). The Court of Appeals correctly held that
the plaintiff had alleged a separate and distinct common law duty on the part of the
defendant to use ordinary care in order to avoid physical harm to foreseeable persons in
the execution of his undertakings. Loweke v Ann Arbor Ceiling & Partition Co, LLC,
489 Mich 157 (2011).
HATHAWAY, J., would deny leave to appeal without the further statements found
in the majority’s order.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 15, 2011 _________________________________________
t0712 Clerk