Court of Appeals affirms reinstatement of case against contractor

John M. Crnkovich was virtually beheaded when he struck a guy wire that crossed a stretch of new sidewalk in the City of Royal Oak while riding a motorized scooter.  He had a blood alcohol level of 0.13 and there was marijuana in his system.  Most likely, that is why he was riding a scooter on the sidewalk, rather than driving.  His family filed a lawsuit against the contractor who built the sidewalk, arguing that it was negligent in failing to remove the guy wire which crossed the sidewalk at a 45 degree angle; even the defense experts admitted the condition was unreasonably dangerous.

Nevertheless, several years ago, the contractor, Gaglio PR Cement Corporation persuaded a court to dismiss the family's death claim by arguing that under Republican Supreme Court precedent, Gaglio owed no duty to the public to conduct its acitivities in a reasonably safe manner.  The deciding court based its decision on two cases by the Republican Justices which appeared to hold--in fact did hold--that if a party acted under a contract, it owed no duty to third parties.

After these decisions recieved harsh, universal criticism as a departure from the common law requirement that all people owe a duty of reasonable care in their daily activities, the Supreme Court Republicans backtracked.  They conceded that signing a contract with a third-party (like, for example, the City of Royal Oak) does not immunize you from negligence that injures someone else; if there was an independent duty to third-parties, liability could result.

Applying the "new," old rule of law to the Crnkovich case, the trial judge reinstated the family's claim, holding that the contractor owed a duty to sidewalk users to remove the guywire before completing the sidewalk.  The contractor appealed.  A unanimous Court of Appeals ruled that the contractor clearly owed the public a duty to act to eliminate a very hazardous condition that all parties admitted would pose an unreasonable risk to sidewalk users. 

The contractor also argued that since the decedent was intoxicated, the case should be dismissed as Mr. Crnkovich was more than fifty percent at fault in causing his death.  It claimed that it should not be responsible for the death because someone had allegedly removed the barricades it erected to warn of the guywire.  The Court of Appeals pointed out that these arguments and others made by the contractor related to the weighing of comparative fault and not to whether or not the contractor owed a duty.  The jury might conclude that the guywire posed an unsafe risk to all sidewalk users and that Mr. Crnkovich was not equally at fault in assuming that nothing this hazardous would be encountered on a dark sidewalk.  The issues raised by the contractor are ultimate issues to be tried by the jury:  not issues appropriate for summary disposition.