HUGHES v. Robert Wurm, d/b/a Bob's Siding, Defendant.

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Court of Appeals of Michigan.

Jonathan HUGHES, Plaintiff-Appellant, v. PMG BUILDING, INC., Defendant/Third-Party Plaintiff-Appellee, State Carpentry, Inc., Defendant-Appellee, Robert Wurm, d/b/a Bob's Siding, Defendant.

Docket No. 199525.

    Decided: December 12, 1997

Before RICHARD ALLEN GRIFFIN, P.J., and SAWYER and O'CONNELL, JJ.Fregolle & Fregolle, P.C. by David E. Fregolle, Southfield, for Jonathan Hughes. Carter & Gebauer by Martin G. Waldman and (Garan, Lucow, Miller, Seward & Becker by David M. Shafer, Southfield, of counsel), Detroit, for PMG Bulding, Inc. Kohl, Secrest, Wardle, Lynch, Clark and Hampton by Janet Callahan Barnes, Farmington Hills, for State Carpentry, Inc.

Plaintiff appeals as of right the circuit court order granting summary disposition in favor of defendants PMG Building, Inc., and State Carpentry, Inc. We affirm with respect to defendant State Carpentry and affirm in part and reverse in part with respect to defendant PMG Building.

This litigation stems from injuries suffered by plaintiff while he was performing roofing work as an independent contractor.   Plaintiff and several other men were hired by the president of PMG Building to do roofing work on three new houses.   The men arrived at the site on September 18, 1995, and immediately began work.   The record indicates that the men were told that the site was ready for shingling and that they did not report to anyone or review any plans before beginning work.   After finishing the garage on one house, plaintiff began to shingle a small porch overhang.   The overhang extended two feet from the house and measured forty-two inches up to the peak on each side.   It was attached to the front of the house with nails;  the permanent support posts had not yet been installed because the concrete footings had not been poured.   Plaintiff did not talk to anyone about how the overhang was supported, and did not pry back the siding to examine the support.   Plaintiff believed that the overhang was sturdy enough to support his weight.   As he stepped onto the overhang to attach a shingle, the overhang pulled away from the house and collapsed without warning.   Plaintiff fell twenty feet and suffered severe and permanent injuries.

On October 20, 1995, plaintiff filed a complaint against PMG Building, State Carpentry, and Robert Wurm doing business as Bob's Siding.1  PMG Building owned the premises and was the general contractor on the site.   Bryan Peruski, the president of PMG Building, drew up the building plans for the house on which plaintiff was working.   State Carpentry, another independent contractor and a subcontractor for PMG Building, constructed the porch overhang.   PMG Building and State Carpentry both filed motions for summary disposition.   On August 23, 1996, upon review of the briefs submitted by the parties, the court entered an order granting summary disposition in favor of PMG Building and State Carpentry.   Plaintiff appeals as of right.

The trial court apparently granted summary disposition pursuant to MCR 2.116(C)(10).2  A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim.  Marx v. Dep't of Commerce, 220 Mich.App. 66, 70, 558 N.W.2d 460 (1996).   The court must consider the pleadings, affidavits, depositions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.  Id. This Court reviews summary disposition decisions de novo to determine whether the prevailing party was entitled to judgment as a matter of law.  Id.

Plaintiff's first argument on appeal is that the trial court erred in granting summary disposition for PMG Building because plaintiff created genuine issues of fact regarding PMG Building's duty as a general contractor to provide a safe workplace.   We disagree.

 Generally, negligence is conduct involving an unreasonable risk of harm.  Schultz v. Consumers Power Co., 443 Mich. 445, 449, 506 N.W.2d 175 (1993).   The requisite elements of a negligence cause of action are that the defendant owed a legal duty to the plaintiff, that the defendant breached or violated the legal duty, that the plaintiff suffered damages, and that the breach was a proximate cause of the damages suffered.  Id. Whether a defendant owes any duty to a plaintiff to avoid negligent conduct in a particular circumstance is a question of law for the court to determine.  Schmidt v. Youngs, 215 Mich.App. 222, 224, 544 N.W.2d 743 (1996).   In determining whether a duty exists, courts examine a wide variety of factors, including the relationship of the parties and the foreseeability and nature of the risk.  Schultz, supra at 450, 506 N.W.2d 175.

 PMG Building was both the landowner and the general contractor of the construction site where plaintiff was injured.   Ordinarily, a general contractor is not liable for a subcontractor's negligence.  Signs v. Detroit Edison Co., 93 Mich.App. 626, 632, 287 N.W.2d 292 (1979).   However, a general contractor may be held liable if it failed to take “reasonable steps within its supervisory and coordinating authority” to guard against “readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen.”  Funk v. General Motors Corp., 392 Mich. 91, 104, 220 N.W.2d 641 (1974), overruled in part on another ground Hardy v. Monsanto Enviro-Chem Systems, Inc., 414 Mich. 29, 323 N.W.2d 270 (1982).   Thus, for there to be liability, there must be:  (1) a general contractor with supervisory and coordinating authority over the job site, (2) a common work area shared by the employees of several subcontractors, and (3) a readily observable, avoidable danger in that work area (4) that creates a high risk to a significant number of workers.  Groncki v. Detroit Edison Co., 453 Mich. 644, 662, 557 N.W.2d 289 (1996).   It is not necessary that other subcontractors be working on the same site at the same time;  the common work area rule merely requires that employees of two or more subcontractors eventually work in the area.  Phillips v. Mazda Motor Mfg. (USA) Corp., 204 Mich.App. 401, 408, 516 N.W.2d 502 (1994);  Erickson v. Pure Oil Corp., 72 Mich.App. 330, 337, 249 N.W.2d 411 (1976).

 We find that plaintiff has failed to provide evidence suggesting that a general issue of material fact exists regarding whether plaintiff was injured while working in a “common work area.”   Plaintiff characterizes the alleged danger at issue in this case as “the danger of collapse of the porch overhang.”   Since other contractors performed work on the exterior of the house in the vicinity of the overhang, plaintiff argues that these workers were exposed to the same risk and that the overhang constituted a “common work area.”   In support of this argument, plaintiff points out that workers from State Carpentry assembled and attached the porch.   Another subcontractor, Robert Wurm, installed the siding on the overhang.   Yet another contractor would later be pouring the cement for the support stanchions.   However, there is no evidence in the record that the employees of any other trade would work on top of the porch overhang.   In all probability, after the carpenters built the overhang and attached it to the house, the only workers who would need to gain access to that limited area were the roofers.   Thus, giving plaintiff the benefit of any reasonable inferences, we cannot say that other workers would be subject to the same hazard.

Even if plaintiff's argument is correct, however, and the employees of several subcontractors might eventually work in the area of the roof overhang, we do not believe that the overhang created a “readily observable, avoidable ․ risk to a significant number of workmen.”  Funk, supra at 104, 220 N.W.2d 641.   We find this case to be distinguishable from Funk, supra, and its progeny.   Liability was imposed on the general contractor in Funk because Funk fell from a highly visible superstructure that was part of the common work area, was within the control of the defendant, and posed a risk to thousands of other workers.   In Funk, the Court employed a risk analysis, finding that liability should not be imputed unless the dangers in the work area involve “a high degree of risk to a significant number of workers.”  Funk, supra at 104, 220 N.W.2d 641 (emphasis added).   See Plummer v. Bechtel Constr. Co., 440 Mich. 646, 651, 489 N.W.2d 66 (1992) (the plaintiff fell from an interconnecting catwalk/platform system at a construction project involving 2,500 workers and a number of subcontractors);  Erickson, supra at 337, 249 N.W.2d 411 (the plaintiff fell from a roof used by numerous subcontractors when he slipped on oiled metal roof sheets).   Here, it is uncontroverted that plaintiff was one of only four men who would be working on top of the overhang.   Accordingly, we conclude not only that plaintiff's injury did not arise in a “common work area,” but that defendant did not breach its duty to guard against a danger posing a “high degree of risk to a significant number of workmen.”  Funk, supra.   Defendant was entitled to judgment on this issue as a matter of law.

We believe that a contrary conclusion would swallow the “rule” espoused in Funk, supra.   If the top of the overhang or even the overhang in its entirety were considered to be a “common work area” for purposes of subjecting the general contractor to liability for injuries incurred by employees of subcontractors, then virtually no place or object located on the construction premises could be considered not to be a common work area.   We do not believe that this is the result the Supreme Court intended.   This Court has previously suggested that the Court's use of the phrase “common work area” in Funk, supra, suggests that the Court desired to limit the scope of a general contractor's supervisory duties and liability.   See, e.g., Erickson, supra at 336, 249 N.W.2d 411.   We thus read the common work area formulation as an effort to distinguish between a situation where employees of a subcontractor were working on a unique project in isolation from other workers and a situation where employees of a number of subcontractors were all subject to the same risk or hazard.   See Plummer, supra at 667, 489 N.W.2d 66.   In the first instance, each subcontractor is generally held responsible for the safe operation of its part of the work.   In the latter case, where a substantial number of employees of multiple subcontractors may be exposed to a risk of danger, economic considerations suggest that placing ultimate responsibility on the general contractor for job safety in common work areas will “render it more likely that the various subcontractors ․ will implement or that the general contractor will himself implement the necessary precautions and provide the necessary safety equipment in those areas.”  Funk, supra at 104, 220 N.W.2d 641.   We do not feel that such considerations dictate the result in the present case.

Plaintiff also argues that the evidence in the record creates a genuine issue of material fact regarding his claim of premises liability against PMG Building as the owner and occupier of the premises.   We find that this is an appropriate basis for imposing a duty on PMG Building.   We also find that plaintiff presented enough evidence to establish a genuine issue of material fact regarding this issue.   Accordingly, we reverse the trial court's decision to grant summary disposition in favor of PMG Building.3

 Generally, a landowner is not responsible for injuries caused by a carefully selected contractor to whom he has delegated the task of erecting a structure.  Funk, supra at 101, 220 N.W.2d 641.   However, an owner has a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition that the owner knows or should know the invitees will not discover or protect themselves against.   Butler v. Ramco-Gershenson, 214 Mich.App. 521, 532, 542 N.W.2d 912 (1995) (citing Bertrand v. Alan Ford Inc., 449 Mich. 606, 609, 537 N.W.2d 185 [1995] ).  An invitee is a person who enters the land of another on an invitation that carries with it an implication that the owner has taken reasonable care to prepare the premises and to make them safe.  Eason v. Coggins Memorial Christian Methodist Episcopal Church, 210 Mich.App. 261, 263, 532 N.W.2d 882 (1995).   This duty of care generally extends to invitees who are employees of independent contractors.  Butler, supra.

 While an invitor must warn of hidden defects, there is generally no duty to warn of “open and obvious” dangers.  Eason, supra at 263-264, 532 N.W.2d 882.   Whether a danger is open and obvious depends upon whether it is reasonable to expect an average person of ordinary intelligence to discover the danger upon casual inspection.  Novotney v. Burger King Corp. (On Remand), 198 Mich.App. 470, 474-475, 499 N.W.2d 379 (1993).   This rule, however, is subject to the above exception;  even if a danger is open and obvious, a possessor of land may still have a duty to protect invitees against foreseeably dangerous conditions.  Bertrand, supra at 610-611, 537 N.W.2d 185.   The Supreme Court clarified this rule in Bertrand, supra at 611, 537 N.W.2d 185:

[T]he Rule generated is that if the particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger.   On the other hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is required to undertake reasonable precautions.   The issue then becomes the standard of care and is for the jury to decide.

A landowner's duty to protect invitees may include a duty to warn.   There is no absolute obligation to warn of open and obvious dangers.  Id. at 612, 537 N.W.2d 185.   However, even though there may not be an absolute obligation to provide a warning, this rule does not relieve the invitor from his duty to exercise reasonable care to protect his invitees against known or discoverable dangerous conditions.  Id. at 613, 537 N.W.2d 185.   The rationale behind this rule is that liability for injuries incurred on defectively maintained premises should rest upon the party who is in control or possession of the premises, and, thus, is best able to prevent the injury.   Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 91, 485 N.W.2d 676 (1992).

 In the present case, the proofs create a question of fact with respect to whether the danger was “open and obvious” and whether the risk of harm was unreasonable.   Clearly, the danger of falling off the roof overhang is open and obvious.   However, the particular risk at issue in this case-that the overhang would collapse when plaintiff put one foot on it-is not so obvious.   The test set forth in Eason, supra at 264, 532 N.W.2d 882, that it is “reasonable to expect an average user with ordinary intelligence to discover the danger upon casual inspection,” is an objective one.  Adams v. Perry Furniture Co. (On Remand), 198 Mich.App. 1, 12, 497 N.W.2d 514 (1993).   Thus, we look not to whether plaintiff should have known that the overhang was hazardous, but to whether a reasonable person in his position would foresee the danger.   After reviewing the record, we conclude that a genuine issue of material fact exists regarding whether the danger posed by the overhang could have been discovered upon casual inspection by a reasonable person in plaintiff's position.   The porch overhang was attached to the house and sided, which obscured from sight the manner of attachment.   Plaintiff testified that he was not aware that the overhang might collapse, and that he believed that the overhang was safe because it was sided and ready to be shingled.   Given these facts, a person in plaintiff's position could reasonably believe that the roof overhang was sturdy enough to support his weight.

The trial court erred in granting summary disposition to PMG Building.   Given our conclusion that plaintiff has presented a genuine issue of material fact regarding the risk of harm and the nature of that risk, the existence of duty as well as breach become questions for the jury to decide.  Bertrand, supra at 617, 537 N.W.2d 185.   If the jury determines that the risk of harm created by the unsupported porch overhang was unreasonable, then defendant's duty to exercise reasonable care extended to this particular risk.  Id.

 Plaintiff's final argument on appeal is that a genuine issue of fact existed regarding its negligence claim against State Carpentry.   We disagree.   The “common work area” exception under Funk, which can impose liability on a general contractor, does not apply where the employee of one subcontractor seeks to recover from another subcontractor.  Funk, supra at 104 n. 6, 220 N.W.2d 641. Instead, the immediate employer of a construction worker is generally responsible for job safety.  Funk, supra at 102, 220 N.W.2d 641.   Plaintiff was working on the construction site as an independent contractor.   He was not invited onto the site by State Carpentry and did not use State Carpentry's equipment.   As such, State Carpentry had no duty to make the premises safe for plaintiff or to warn plaintiff of a known dangerous condition.   See Klovski v. Martin Fireproofing Corp., 363 Mich. 1, 5, 108 N.W.2d 887 (1961).   We therefore conclude that the trial court properly granted summary disposition in favor of State Carpentry.

Reversed in part and affirmed in part with respect to plaintiff's claims against PMG Building.   Affirmed with respect to plaintiff's claims against State Carpentry.


1.   The court entered a default judgment against Wurm in plaintiff's favor on November 13, 1996.   Wurm has not appealed the default judgment.   The order plaintiff appeals pertains only to defendants PMG and State Carpentry.

2.   The trial court's order granting summary disposition did not indicate the basis on which it was being granted.   However, only the pleadings may be considered when the motion is based on MCR 2.116(C)(8).   MCR 2.116(G)(4).   Because all parties submitted documents in addition to their pleadings, and because PMG Building's concurrence was based upon subrule C(10), we will discuss the court's order under MCR 2.116(C)(10) only.

3.   Once again, we are unable to determine from the record whether the trial court based its decision to grant summary disposition on this issue.   However, because we conclude that plaintiff provided sufficient evidence to support a landowner liability theory, we find that an order to remand the case is appropriate on this basis.


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