Sixth Circuit assesses contractor's duty for creating "new hazard" during construction
Teresa Bennett and a number of other traffic controllers at Detroit Metro Airport sued several corporations to recover damages for injuries they suffered during mold remediation in the traffic control tower. They alleged that several mistakes were made in the planning and execution of the remediation, ultimately resulting in toxic poisoning of the controllers that shut down the tower for five hours in 2005. They alleged that the latter event was caused by use of an unapproved chemical by a subcontractor, Coach's Catastrophic Cleaning & Restoration. [Aptly named group, apparently.]The Sixth Circuit first noted that Michigan follows a unique doctrine of law, created by the so-called Engler Majority several years ago, pursuant to which a negligent contractor is immune from liability for injuries to third parties unless he or she creates a "new hazard" isolated from the contractual obligations. In essence, the holding creating this doctrine discards several hundred years of common law by releasing a contractual actor from the uniform duty to exercise reasonable care for the safety of others. Applying this doctrine to the Bennett case, the Sixth Circuit upheld the dismissal of all of the participants in the remediation except Coach Catastrophic Cleaning: the Court held that the plaintiffs would have a day in court to convince the jury that use of an unapproved chemical in an occupied building created a "new hazard" for which the company might not have immunity.