ROBERT F DESHAMBO V CHARLES W ANDERSON
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT F. DESHAMBO,
UNPUBLISHED
October 22, 2002
Plaintiff,
ATTORNEY GENERAL, DEPARTMENT OF
COMMUNITY HEALTH, and STATE OF
MICHIGAN,
Intervening Plaintiffs-Appellants,
v
No. 233853
Leelanau Circuit Court
LC No. 00-005127-NO
CHARLES W. ANDERSON,
Defendant,
and
NORMAN R. NIELSEN and PAULINE
NIELSEN,
Defendants-Appellees.
ROBERT F. DESHAMBO,
Plaintiff-Appellant,
and
ATTORNEY GENERAL, DEPARTMENT OF
COMMUNITY HEALTH, and STATE OF
MICHIGAN,
Intervenors,
-1-
v
No. 233854
Leelanau Circuit Court
LC No. 00-005127-NO
CHARLES W. ANDERSON,
Defendant,
and
NORMAN R. NIELSEN and PAULINE
NIELSEN,
Defendants-Appellees.
Before: Fitzgerald, P.J., and Holbrook, Jr., and Cavanagh, JJ.
PER CURIAM.
Plaintiffs appeal as of right an order granting defendants’ motion for summary
disposition. Plaintiff’s and intervening plaintiffs’ separate appeals were consolidated in this
Court. We reverse.
This case arose when plaintiff DeShambo was injured while engaged in a logging
operation on defendants Nielsens’ property in the employ of defendant Charles W. Anderson.1
Plaintiffs argue that the trial court erred in granting defendants’ motion for summary disposition
under MCR 2.116(C)(10) because a genuine issue of material fact existed with respect to
whether defendants could have reasonably anticipated the inherent risks involved in removing
the timber at the time the agreement was made. We review the trial court’s ruling on a motion
for summary disposition under MCR 2.116(C)(10) de novo. Maiden v Rozwood, 461 Mich 109,
118, 120; 597 NW2d 817 (1999).
As a general rule, an employer of an independent contractor is not liable for the
contractor’s negligence or the negligence of his employees. Candelaria v BC General
Contractors, Inc, 236 Mich App 67, 72; 600 NW2d 348 (1999). However, there is an exception
to the general rule of non-liability where the contracted work is considered to be inherently
dangerous. Bosak v Hutchinson, 422 Mich 712, 724; 375 NW2d 333 (1985). For the inherently
dangerous activity doctrine to apply, “the risk involved must be recognizable in advance, at the
time of the contract, and must be inherent in the work itself or normally expected in the ordinary
course of doing the work.” Burger v Midland Cogeneration Venture, 202 Mich App 310; 507
NW2d 827 (1993) A risk is recognizable if it is reasonably anticipated. Bosak, supra at 728.
1
Plaintiffs’ claim against Anderson was voluntarily dismissed. Because Anderson is not a party
to this appeal, for ease of reference, the term “defendants” will refer to the Nielsens only.
“Plaintiffs” refers to plaintiff DeShambo and the intervening plaintiffs.
-2-
The trial court held that defendants could not have reasonably anticipated the risks
inherent in logging, on the basis of Justus v Swope, 184 Mich App 91; 457 NW2d 103 (1990). In
Justus, we declined to apply the inherently dangerous activity doctrine to impose liability on a
homeowner who had hired a tree removal service to cut down a single tree near a building
because a “mere homeowner” could not have anticipated the risks involved in this procedure. Id.
at 96-98.
However, the instant case is distinguishable. Defendants had previously hired logging
companies to conduct for-profit tree removals on twenty-acre parcels of land, and defendant
Norman Nielsen, who entered into the logging contract, agreed that logging was risky. Viewing
these facts in a light most favorable to plaintiffs, a material question of fact existed with respect
to defendants’ knowledge of the risks of logging at the time the agreement was made. Therefore
summary disposition was improperly granted. Maiden, supra at 120.
Because plaintiffs’ remaining arguments may be relevant on remand, we note that
because plaintiffs presented evidence respecting the hazardous elements of logging, the
determination whether logging is inherently dangerous is a question for the jury. Kubisz v
Cadillac Gage Textron, Inc, 236 Mich App 629, 634; 601 NW2d 160 (1999); Burger, supra at
316. We further note that although cases have discussed whether an inherently dangerous
activity must be “unusual” to support the imposition of liability, in none of those cases was that
factor dispositive. See Szymanski v K Mart Corp, 196 Mich App 427, 432; 493 NW2d 460
(1992); Rasmussen v Louisville Ladder, 211 Mich App 541, 549; 536 NW2d 221 (1995) (risk of
injury arose from the failure to use well-recognized safety measures).
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh
-3-
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