Opinion
No. 246132.
May 4, 2004 at 9:20 a.m.
Appeal from Oakland Circuit Court, LC No. 2001-030997-NO.
Sommers, Schwartz, Silver Schwartz, P.C. (by Patrick Burkett), and Levine, Benjamin, Tushman, Bratt, Jerris Stein, P.C. (by Martin E. Stien), for the plaintiff. Ogne, Alberts Stuart, P.C. (by Michael A. Ross and Jeffrey Bullard), for Paul Robert Olewnick Builders, Inc.
Before: Cooper, P.J., and Griffin and Borrello, JJ.
Plaintiff Michael Johnson, as conservator of Daniel Johnson's estate, appeals by right from the trial court's order granting summary disposition to defendant Paul Robert Olewnick Builders, Inc. (Olewnick) under MCR 2.116(C)(10). Daniel Johnson, the plaintiff in this matter, was permanently incapacitated after falling from a roof on a construction job. Plaintiff, an employee of subcontractor Wimsatt Building Materials, was delivering shingles to the roof of the home when he slid off the roof after a toe board installed by another subcontractor, Olewnick, dislodged and failed to stop him. Because we find that defendant, when it installed the toe boards, owed plaintiff a common law duty to install them in a non-negligent manner, we reverse the trial court's grant of summary disposition.
Defendant moved for summary disposition on the basis that as a subcontractor, it owed plaintiff no duty to keep the premises safe for another subcontractor's employees based on Funk v. General Motors, 392 Mich. 91; 220 N.W.2d 641 (1974), overruled in part on other grounds, Hardy v. Monsanto Enviro-Chem Systems, Inc., 414 Mich. 29, 70-71; 323 N.W.2d 270 (1982). Plaintiff responded that this case was distinguishable from Funk because plaintiff was alleging that Olewnick was actively negligent, and in active negligence cases, a subcontractor can be liable for resulting injuries to other employees. The trial court agreed with Olewnick and granted its motion for summary disposition under MCR 2.116(C)(10), stating:
The issue of whether a defendant owes a duty to a plaintiff to avoid negligent conduct in a certain circumstance is a question of law for the court to determine. Hughes v. PMG Building, Inc., 227 Mich. App. 1, 5[; 574 N.W.2d 691] (199[7]). "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." Hughes, supra [citing Schultz v. Consumers Power Co., 443 Mich. 445, 450; 506 N.W.2d 175 (1993)]. Here, Defendant Olewnick did not hire or supervise Daniel Johnson and his employer, did not have coordinating and job safety responsibilities of a general contractor, and did not own the land It is the immediate employer of a construction worker who is generally responsible for job safety. Hughes, supra at 12.
We review a trial court's decision on a motion for summary disposition under MCR 2.116(C)(10) de novo. On review, we "`must consider the available pleadings, affidavits, depositions, and other documentary evidence in a light most favorable to the nonmoving party and determine whether the moving party was entitled to judgment as a matter of law.'" Michigan Ed. Employees Mutual Ins. Co. v. Turow, 242 Mich. App. 112, 114; 617 N.W.2d 725 (2000), quoting Unisys Corp. v. Comm'r. of Ins., 236 Mich. App. 686, 689; 601 N.W.2d 155 (1999).
Defendant correctly asserts that the general rule of law in construction site injury cases hold that only the injured person's immediate employer — and not another subcontractor — is responsible for job safety. Funk, supra at 102. However, there are instances when a general contractor may be held liable to an injured party. Hughes, supra at 6. A general contractor can be liable under the "common work area exception," if the following elements are established: "(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." Id., citing Groncki v. Detroit Edison Co., 453 Mich. 644, 662; 557 N.W.2d 289 (1996). Our Supreme Court in Funk delineated that the exception does not extend to subcontractors. Funk, supra at 105 n. 6, citing Klovski v. Martin Fireproofing Corp., 363 Mich. 1; 108 N.W.2d 887 (1961).
Nonetheless, nothing in our State's jurisprudence absolves a subcontractor — or anyone on a construction job — of liability under the common-law theory of active negligence. In Clark v. Dalman, 379 Mich. 251; 150 N.W.2d 755 (1967), our Supreme Court noted that one person's duty to another may arise "by operation of law under application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others." Id. at 261. This rule, the Court explained, was embedded in "the concept that every person is under the general duty to so act, or to use that which he controls, as not to injure another." Id., citing Pinnix v. Toomey, 87 S.E.2d 893 (NC 1955).
Nothing in our subsequent law, including Funk and Hughes, the latter discussed infra, has abrogated that common-law duty. Funk prohibited the establishment of a general rule that a mere premises owner or a subcontractor had to make the premises safe for another subcontractor. Funk, supra at 104, 104 n. 6. Discussing the rationale behind preventing subcontractor liability, the Court recognized that a mere premises owner or subcontractor was not in the best position — either professionally or financially — to install or oversee safety measures. The Court went on to state that the property owner should not have to necessarily bear the cost of making a workplace safe. Id. at 102-105.
However, we hold that the distinction in this case and the fact pattern in Funk, supra, lies in the duty required. Even if defendant had no direct duty to take proactive measures to make an otherwise unsafe workplace safe, and therefore no duty to install toe boards to prevent plaintiff from falling, defendant's common-law duty remained intact: "[a]s between two independent contractors who work on the same premises, either at the same time or one following the other, each owes to the employees of the other the same duty of exercising ordinary care as they owe to the public generally." 65A CJS § 534 p. 291. Thus, where a subcontractor actually performs an act, it has the duty to perform the act in a non-negligent manner.
Absent a contract provision to the contrary, of course, but none has been shown.
Defendant also claims that because plaintiff did not specifically plead "active negligence," the claim is precluded. We disagree for two reasons. First, review of defendant's motion for summary disposition does not reveal that such a claim was raised before the trial court. Generally, an issue not raised below is deemed to have been abandoned by this Court. An appellate court is obligated to review only issues which are properly raised and preserved. People v. Stanaway, 446 Mich. 643, 694; 521 N.W.2d 557 (1994), cert den sub nom People v. Caruso, 513 U.S. 1121; 115 S.Ct. 923; 130 L.Ed.2d 802 (1995); People v. Grant, 445 Mich. 535, 546; 520 N.W.2d 123 (1994). Second, upon full consideration of this issue on appeal, we hold that in his complaint, plaintiff alleged, among other things, that defendant failed to insure that toe boards were properly fastened to the roof. Plaintiff did not direct any one allegation to any specific defendant, but grouped the allegations together as to all defendants. Generally, a complaint must contain a "`statement of the facts' and the `specific allegations necessary reasonably to inform the adverse party of the nature of the claims' against it." Nationsbanc Mortgage Corporation of Georgia v. Luptak, 243 Mich. App. 560, 566; 625 N.W.2d 385 (2000), quoting MCR 2.111(B). We hold that by pleading assertions that could give rise to a finding of fact that defendant incorrectly installed the toe boards and by additionally alleging that defendant failed to insure the toe boards were properly installed, defendant was reasonably informed of the nature of the claim against it. See, generally, Iron Co. v. Sundberg, Carolson Assocs., Inc., 222 Mich. App. 120, 124; 564 N.W.2d 78 (1997).
Defendant, in their motion alleged that they had "no control" over the plaintiff, "did not hire or subcontract work" to plaintiff's employer, and that "Michigan Courts have consistently held that a property owner cannot be liable for a contractor's negligence . . .". Nowhere in the motion do we find that defendant brought the issue of plaintiff's alleged failure to plead active negligence to the attention of the trial court.
Next, defendant relies on Hughes, supra, in disclaiming liability. In Hughes, the plaintiff, a roofing subcontractor, was injured when he stepped onto a porch overhang that another subcontractor was in the process of erecting. Id. at 3. The latter subcontractor had not finished erecting the overhang and had not installed cement footings or support posts. Id. Thus, the overhang was tenuously attached to the roof only with nails. Id. When the plaintiff stepped onto the overhang to shingle it, it tore from the roof and collapsed. Id.
This Court addressed the defendant subcontractor's liability in the last paragraph of the opinion. Id. at 12-13. Rejecting the plaintiff's argument that Funk's common work area exception applied to another subcontractor, this Court observed:
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[, supra at 5]. [ Id.]Hughes is distinguishable in two respects. First, this Court did not analyze whether the defendant undertook an action that it then performed negligently to the plaintiff's detriment, but instead soundly refused to extend the common work area exception to a subcontractor while reaffirming the principle that one subcontractor has no duty to create a safe workplace for another.
Second, even if an active negligence analysis had been used, the facts at hand differ. In Hughes, the defendant was in the process of completing the roof but had not finished it. Also, it is important to note that other than the building the roof, the defendant in Hughes, supra, did not take any measures to accommodate other workers by placement of an item such as toe boards which would customarily be utilized by other workers. Lastly, nothing in the fact scenario set forth in Hughes, supra, suggests that the defendant performed their job negligently. Here, defendant had performed the task of nailing in the toe boards, but the job was completed in a negligent manner. For these reasons, defendant's attempt to analogize Hughes must fail.
Defendant is correct that plaintiff did not plead or attempt to prove that defendant had a contractual duty to install the toe boards. Nonetheless, we do not find those proofs necessary. Despite the absence of a contractual provision, plaintiff can raise a legitimate claim of active negligence by showing that defendant negligently performed an act and that its negligent performance was likely to result in harm.
Finally, we must address the legal issue of the nature of the duty owed to plaintiff. The question of duty has been explained by our Supreme Court as follows: "The question whether a duty exists depends in part on foreseeability: whether it was foreseeable that a defendant's conduct may create a risk of harm to another person and whether the result of that conduct and intervening causes was foreseeable." Schultz, supra at 464, citing Buczkowski v. McKay, 441 Mich. 96, 101; 490 N.W.2d 330 (1992), and McMillan v. State Hwy. Comm'n., 426 Mich. 46, 61-62; 393 N.W.2d 332 (1986). Here, it is reasonable that the existence of one safety device — the toe boards — could cause a risk of harm in that a person may choose to forgo other safety devices in reliance on the ones in place. So by not properly affixing the toe boards to trusses, defendant's employee's actions created a risk of harm. Finding that the use of the toe boards by others was foreseeable, we find that defendant, by affixing the toe boards in an alleged negligent manner, owed a duty to those who used the toe boards.
Reversed and remanded. We do not retain jurisdiction.