Negligence; Duty for contractor’s undertaking; Loweke v Ann Arbor Ceiling & Partition Co, LLC; Public nuisance creation or control; Cloverleaf Car Co v Phillips Petroleum Co

The court held that summary disposition was proper because plaintiff failed to present evidence creating a genuine issue that defendant-JMAC miscalibrated the sprinklers during the spring startup and therefore failed to show breach for negligence or that JMAC created the alleged public nuisance. Plaintiff was struck at night after stepping into the curb lane to avoid sprinklers spraying over the sidewalk and into the roadway. Plaintiff sued JMAC, a landscaping contractor that serviced the sprinkler system, asserting negligence and public nuisance based on the theory that the contractor’s technician misaligned the heads during the spring startup months earlier. Applying the contract-tort framework, the court recognized that a contractor is “not relieved of its preexisting common-law duty to use ordinary care” in performing its undertaking. But it held the record did not support plaintiff’s theory that the contractor created the hazard because the technician testified he would have adjusted or replaced any heads spraying into the street and was “confident” the system was not spraying into the street when he finished the startup. The court concluded plaintiff’s reliance on photos and observations made the day after the crash did not bridge the four-month gap and amounted to speculation where “any number of things” could have caused misalignment during the season, including damage, dirt, age, or being run over. The court also rejected reliance on the limited credibility-exception for summary disposition because the alignment issue was not “exclusively within the knowledge” of the contractor’s witness and plaintiff could have developed evidence from other sources. As to the nuisance claim, the court held plaintiff failed to create a fact question that the contractor “create[d] the alleged nuisance,” which was the only viable nuisance theory on this record, and therefore affirmed summary disposition.