Breach of contract; Contract terms; Allen v Michigan State Univ; Negligence; Economic loss doctrine; Neibarger v Universal Coops, Inc; Separate & distinct legal duty; Rinaldo’s Constr Corp v Michigan Bell Tel Co; Loweke v Ann Arbor Ceiling & Partition Co, LLC; Nuisance; Abandonment on appeal; Amendment of complaint; MCR 2.118

The court held that plaintiffs failed to state a breach-of-contract claim and abandoned their nuisance claim, but sufficiently alleged a negligence claim based on defendant’s separate legal duty not to make the asbestos condition in their home worse. Plaintiffs contracted with defendant-flooring company to remove existing flooring and install new flooring in their home. Their complaint alleged that defendant’s workers discovered possible asbestos, failed to follow proper protocols, and spread asbestos throughout the home. The trial court granted defendant summary disposition on the breach-of-contract, negligence, and nuisance claims. On appeal, the court first affirmed dismissal of the contract claim because the contract documents contained “no reference to asbestos,” and plaintiffs still did “not cite or reference any contractual provision that required Defendant to take any action regarding asbestos.” But the court reversed dismissal of the negligence claim. It reasoned that the trial court erred in relying on the economic loss doctrine after finding the contract created no asbestos-related duty because plaintiffs alleged a “legal duty separate and distinct from any contractual obligations.” Once defendant allegedly identified possible asbestos while removing flooring, it had “a legal duty to not make the condition of plaintiffs’ home worse.” The court held that these allegations were “sufficient to state a negligence claim.” It affirmed dismissal of the nuisance claim because plaintiffs “failed to brief the issue,” and left any renewed request to amend for the trial court on remand. Affirmed in part, reversed in part, and remanded.