FARON D WHITEYE V ANGELO D'ALESSANDRO
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STATE OF MICHIGAN
COURT OF APPEALS
FARON D. WHITEYE, Personal Representative
of the Estate of ROBERT JAMES WHITEYE,
UNPUBLISHED
December 22, 2005
Plaintiff-Appellant,
v
No. 258095
Oakland Circuit Court
LC No. 01-031447-NO
LANZO CONSTRUCTION CO.,
Defendant-Appellee.
FARON D. WHITEYE, Personal Representative
of the Estate of ROBERT JAMES WHITEYE,
Plaintiff-Appellant,
v
No. 258098
Oakland Circuit Court
LC No. 02-041065-NO
ANGELO D’ALESSANDRO,
Defendant-Appellee,
and
HUBBELL ROTH & CLARK INC.,
Defendant/Third-Party Plaintiff
Appellee,
and
LANZO CONSTRUCTION CO.,
Third-Party Defendant.
Before: Smolenski, P.J., and Schuette and Borrello, JJ.
PER CURIAM.
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In Docket No. 258095, plaintiff appeals as of right the trial court’s order granting
summary disposition in favor of defendants Lanzo Construction Company (Lanzo) and Angelo
D’Alessandro pursuant to MCR 2.116(C)(8) and (C)(10). In Docket No. 258098, plaintiff
appeals as of right the trial court’s order granting summary disposition in favor of defendant
Hubbell, Roth & Clark Inc. (HRC) pursuant to MCR 2.116(C)(10). The cases were consolidated
for appeal. We affirm.
FACTS AND PROCEDURAL HISTORY
The City of Southfield (city) solicited bids for a project involving the installation of an
underground water main in a subdivision. On September 1, 1997, the city entered into a contract
with defendant HRC, a private engineering firm. HRC was to serve as a consultant for the
project. As part of its consulting responsibilities, HRC assisted the city in securing bids for the
project. HRC recommended that the city award the bid for the project to defendant Lanzo. The
city did award the bid to Lanzo, and on December 1, 1998, Lanzo and the city entered into a
contract in which Lanzo was to complete the project for $5,274,750.
Plaintiff’s decedent, a fifty-two-year-old male, was employed by defendant Lanzo as a
pipe layer. On May 24, 1999, plaintiff’s decedent was working as the chief pipe layer at the
construction site of the Southfield project. He was working in a trench that was eighteen to
twenty feet deep. The trench had been excavated to permit the installation of the water main.
One safety feature to protect workers who are working in a trench is a trench box. A trench box
is a steel cage with two sides that is placed in the trench to prevent cave-ins where soil has been
excavated. Plaintiff’s decedent was in the trench installing a pipe. However, he was working
outside of the trench box because the size of the pipe would not allow him to do the work inside
the trench box. As plaintiff’s decedent worked to install the pipe, a trench wall collapsed on him,
and he was buried alive. He died as a result of the cave-in.
The estate of plaintiff’s decedent filed a wrongful death action against Lanzo and a
separate wrongful death action against HRC and D’Alessandro. Plaintiff’s complaint against
Lanzo alleged, among other things, that Lanzo was liable for the death of plaintiff’s decedent
under the intentional tort exception to the exclusive remedy provision of the Worker’s Disability
Compensation Act (WDCA), MCL 418.101 et seq. Plaintiff’s complaint against HRC and
D’Alessandro alleged that HRC was negligent in failing to properly investigate Lanzo and in
recommending that the city contract with Lanzo when HRC knew or should have known that
Lanzo would be unable to perform under the contract in a safe manner. The complaint further
alleged that HRC was negligent in failing to stop Lanzo’s work on the project when it became
aware of Lanzo’s unsafe trenching methods. The complaint also alleged that D’Alessandro was
individually liable under the intentional tort exception to the exclusive remedy provision of the
WDCA, in part because he allegedly made the decision to reduce the size of the trench box. The
parties stipulated to consolidating the cases, and the trial court entered a consolidation order on
November 21, 2002.
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Defendants Lanzo and D’Alessandro moved for summary disposition under MCR
2.116(C)(8) and (C)(10).1 They argued that plaintiff’s claim was barred by the exclusive remedy
provision of the WDCA, MCL 418.131(1), because plaintiff could not establish the existence of
an intentional tort. According to Lanzo and D’Alessandro, a trench cave-in, by its very nature, is
an unpredictable event, and plaintiff could not establish that defendants specifically intended an
injury or had actual knowledge that the cave-in or an injury was certain to occur. Plaintiff
contended that Lanzo’s conduct fell under the intentional tort exception to the exclusive remedy
provision of the WDCA because defendants had actual knowledge that injury was certain to
occur and willfully disregarded that knowledge. Plaintiff further contended that summary
disposition was premature because virtually no discovery had taken place.
The trial court granted Lanzo’s and D’Alessandro’s motion for summary disposition
under MCR 2.116(C)(8) and (C)(10) and dismissed plaintiff’s claims against them. The trial
court ruled that “even after accepting all of plaintiff’s allegations as true, and even assuming the
plaintiff has evidence to support her [sic] claims under the facts of this case, the plaintiff cannot
show defendant specifically intended to cause injury or that injury was certain to occur.”
Therefore, the trial court granted Lanzo’s and D’Alessandro’s motion for summary disposition
based on plaintiff’s failure to establish the intentional tort exception to the exclusive remedy
provision of the WDCA.
Thereafter, defendant HRC moved for summary disposition under MCR 2.116(C)(10).
HRC argued that it had no duty to protect the decedent from harm at the construction site and
that defendant Lanzo was responsible for job safety and for providing a safe workplace. HRC
asserted that Lanzo was bound, by language in its construction contract with the city, to ensure
safety at the construction site. The trial court granted HRC’s motion for summary disposition
under MCR 2.116(C)(10). According to the trial court, Lanzo’s contract with the city provided
that Lanzo had full responsibility for the work and was responsible for taking precautions to
prevent injuries, and HRC’s contract with the city did not impose a contractual duty to protect
the decedent. The trial court entered a final order dismissing all of plaintiff’s claims against
Lanzo, D’Alessandro, and HRC on July 7, 2004, and subsequently denied plaintiff’s motion for
reconsideration.
ANALYSIS
Plaintiff argues that the trial court erred in granting summary disposition in favor of
defendant Lanzo under MCR 2.116(C)(8) before discovery was complete. Plaintiff asserts that
there was not sufficient discovery for the trial court to find that plaintiff had failed to state a
claim as a matter of law. We disagree.
1
In their motion for summary disposition, Lanzo and D’Alessandro cited only MCR 2.116(C)(8)
as a ground for summary disposition. However, in their brief in support of their motion for
summary disposition, Lanzo and D’Alessandro cited both MCR 2.116(C)(8) and (C)(10) as
grounds for summary disposition.
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This Court reviews de novo a trial court’s grant or denial of summary disposition under
MCR 2.116(C)(8). Badiee v Brighton Area Schools, 265 Mich App 343, 351; 695 NW2d 521
(2005). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of
the claim on the pleadings alone. Newton v Bank West, 262 Mich App 434, 437; 686 NW2d 491
(2004). All well-pleaded factual allegations are accepted as true and construed in a light most
favorable to the nonmoving party. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817
(1999). The motion “may be granted only where the claims alleged are ‘so clearly unenforceable
as a matter of law that no factual development could possibly justify recovery.’” Id., quoting
Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992).
A motion for summary disposition under MCR 2.116(C)(8) does not test whether there is
a genuine issue of material fact, but tests the legal sufficiency of the complaint. Id. Summary
disposition based on the failure to state a claim tests the legal sufficiency of a claim by the
pleadings alone, and the motion may not be supported with affidavits, depositions, admissions,
or other documentary evidence. MCR 2.116(G)(2), (G)(5); Patterson v Kleiman, 447 Mich 429,
432; 526 NW2d 879 (1994). Therefore, discovery was irrelevant to the trial court’s decision to
grant summary disposition under MCR 2.116(C)(8) because the trial court could only consider
the pleadings in deciding the motion. Plaintiff’s argument that the trial court’s decision to grant
summary disposition under MCR 2.116(C)(8) before discovery was complete is without merit.
Plaintiff next argues that the trial court erred in granting summary disposition in favor of
defendant Lanzo based on the exclusive remedy provision of the WDCA. Again, we disagree.
This Court reviews de novo a trial court’s grant or denial of summary disposition under
MCR 2.116(C)(10). Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201
(1998). A motion brought under MCR 2.116(C)(10) tests the factual support for a claim.
Downey v Charlevoix Co Bd of Co Rd Comm’rs, 227 Mich App 621, 625; 576 NW2d 712
(1998). The pleadings, affidavits, depositions, admissions, and any other documentary evidence
submitted by the parties must be considered by the court when ruling on a motion brought under
MCR 2.116(C)(10). MCR 2.116(G)(5); id. at 626. When reviewing a decision on a motion for
summary disposition under MCR 2.116(C)(10), this Court “must consider the documentary
evidence presented to the trial court ‘in the light most favorable to the nonmoving party.’”
DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 538-539; 620 NW2d 836
(2001), citing Harts v Farmers Ins Exchange, 461 Mich 1, 5; 597 NW2d 47 (1999). A trial court
has properly granted a motion for summary disposition under MCR 2.116(C)(10) “if the
affidavits or other documentary evidence show that there is no genuine issue in respect to any
material fact, and the moving party is entitled to judgment as a matter of law.” Quinto v Cross &
Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
MCL 418.131(1) of the WDCA “provides that employee compensation is the exclusive
remedy for a personal injury, except for an injury resulting from an intentional tort.” Bock v
General Motors Corp, 247 Mich App 705, 710; 637 NW2d 825 (2001). Plaintiff asserts that it
established a genuine issue of material fact regarding whether defendant Lanzo’s conduct
constituted an intentional tort. MCL 418.131(1) defines an intentional tort:
The only exception to this exclusive remedy is an intentional tort. An intentional
tort shall exist only when an employee is injured as a result of a deliberate act of
the employer and the employer specifically intended an injury. An employer shall
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be deemed to have intended to injure if the employer had actual knowledge that
an injury was certain to occur and willfully disregarded that knowledge.
Whether the facts alleged by the plaintiff are sufficient to constitute an intentional tort is a
question of law for the court; whether the facts are as the plaintiff alleges is a jury question.
MCL 418.131(1); Gray v Morley (After Remand), 460 Mich 738, 743; 596 NW2d 922 (1999),
citing Travis v Dreis & Krump Mfg Co, 453 Mich 149, 188; 551 NW2d 132 (1996).
To avoid the exclusive remedy provision of the WDCA through the intentional tort
exception, there must be a deliberate act by the employer and a specific intent that there be an
injury. Herman v Detroit, 261 Mich App 141, 148; 680 NW2d 71 (2004), citing Travis, supra at
169 (Boyle, J.), 191 (Riley, J.). A deliberate act may be one of commission or omission. Id. An
employer’s omission, “such as a failure to remedy a dangerous condition . . . may constitute the
‘act’ necessary to establish an intentional tort.” Travis, supra at 169 (Boyle, J.). To establish
that the employer specifically intended an injury, the employer must have had “a purpose to
bring about certain consequences.” Herman, supra at 148. The specific intent to injure may also
be established if the employer had actual knowledge that an injury was certain to occur and
willfully disregarded that knowledge. MCL 418.131(1); id. An injury was certain to occur if
there was no doubt that it would occur. Herman, supra at 148. The plaintiff must allege a
specific danger known to the employer that was certain to result in injury and further must allege
that the employer required the plaintiff to work despite the danger. Id. An employer’s
knowledge of general risks is insufficient to establish an intentional tort. Id. at 149.
Plaintiff contends that it established a genuine issue of material of fact regarding whether
defendant Lanzo had actual knowledge that an injury was certain to occur and willfully
disregarded that knowledge because Lanzo had a history of violations under the Michigan
Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq., it decreased the width
of the safety trench box, it failed to provide additional shoring for the trench after a significant
rainfall, and it was aware that the excavated area was unstable after the rain. In Palazzola v
Karmazin Products Corp, 223 Mich App 141, 151-152; 565 NW2d 868 (1997), we rejected the
plaintiff’s contention that the defendant’s willful MIOSHA violations established that the
defendant possessed actual knowledge of the certainty of an injury sufficient to create a question
of fact for the jury. Even accepting the truth of plaintiff’s remaining assertions, they establish, at
most, that Lanzo would have been alerted that their trenching methods may have presented a
general risk of harm under the circumstances. However, knowledge of a general risk is not the
equivalent of certainty of injury. See Agee v Ford Motor Co, 208 Mich App 363, 367-368; 528
NW2d 768 (1995). Furthermore, an employer’s awareness that a dangerous condition exists is
not enough to establish certainty. Palazzola, supra at 150. Certainty is established only when
there is no doubt regarding whether the injury will occur. Travis, supra at 174 (Boyle, J.).
The evidence establishes that Lanzo knew that the trench was dangerous and that there
was a risk of a cave-in; however, even viewing the evidence in a light most favorable to plaintiff,
the evidence simply does not show that Lanzo knew that injury was certain to occur. Despite the
general risk involved, a cave-in was not inevitable. Moreover, the fact that plaintiff’s decedent,
who was an experienced pipe layer, willingly worked in the trench despite the risk of a cave-in
belies plaintiff’s assertion that injury was certain to occur. Clearly, plaintiff’s decedent would
not have taken the risk to work in the trench that day had he known that a cave-in was a
certainty. Rather, plaintiff’s decedent was willing to take a calculated risk by working in the
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trench outside of the trench box when he knew that the trench was dangerous and that a cave-in
was a possibility. Neither Lanzo nor plaintiff’s decedent knew that an accident was certain to
occur; merely showing a likelihood of an accident is insufficient to establish an intentional tort.
Bazinau v Mackinac Island Carriage Tours, 233 Mich App 743, 756; 593 NW2d 219 (1999).
The trial court did not err in granting summary disposition in favor of Lanzo under the exclusive
remedy provision of the WDCA because plaintiff failed to establish a genuine issue of material
fact regarding whether Lanzo’s conduct constituted an intentional tort.
Plaintiff next argues that the trial court erred in granting HRC’s motion for summary
disposition under MCR 2.116(C)(10). According to plaintiff, HRC owed a duty to plaintiff
under its engineering contract with the City of Southfield and breached this duty by failing to
include safety as part of the selection criteria in recommending Lanzo for the city’s water main
project. This argument is without merit because one who retains a contractor has “no duty to
investigate the contractor and [is] free to assume the contractor [is] of good reputation and
competent to do the work safely.” Meagher v McNeely & Lincoln, Inc, 212 Mich App 154, 156;
536 NW2d 851 (1995), citing Restatement Torts, 2d, § 411, p 376; see also Reeves v Kmart
Corp, 229 Mich App 466, 475; 582 NW2d 841 (1998). Although the city, and not HRC, retained
Lanzo, we similarly conclude that, absent a specific contractual duty to investigate the safety
record of contractors who bid on the project, which did not exist in this case, HRC also had no
duty to investigate Lanzo’s safety record.
Plaintiff asserts that it established a genuine issue of material fact regarding whether
HRC breached its duty under its contract with the city by failing to stop work on the project
when the work being performed was not being performed according to specifications and was
creating a safety hazard. We have carefully reviewed the two contracts that are relevant to this
case. The first is the contract between HRC and the city (the engineering contract), and the
second is the contract between Lanzo and the city (the construction contract). Neither the
language in the engineering contract nor the language in the construction contract supports
plaintiff’s contention that HRC had a contractual duty to stop work on the project for safety
reasons. Under the construction contract, Lanzo was specifically declared to be in charge of the
construction work and responsible for safety at the job site. The engineering contract between
HRC and the city does not impose a duty upon HRC to direct or supervise the work of Lanzo’s
employees or ensure their safety. Under the engineering contract, HRC had four main
responsibilities. These responsibilities related to the preliminary or “design report” phase, the
design phase, the construction phase, and construction inspection. Plaintiff’s argument relates to
HRC’s construction inspection obligation under the contract. HRC’s duty to inspect construction
was defined as “[t]echnical observation of the construction by a full time resident project
engineer or technician and supporting staff as required, and providing appropriate reports to the
City.” While HRC did have a duty to observe and inspect, the engineering contract makes it
clear that HRC’s obligation in this regard was limited to “[t]echnical observation” and did not
include a duty to inspect and observe for safety issues. The city could have included in the
engineering contract a provision imposing a duty upon HRC to inspect and observe for safety
issues, but it did not. Instead, the city placed responsibility for the safety of the job site upon
Lanzo under the express terms of the construction contract between Lanzo and the city. We will
not write a different contract for the parties when the city clearly manifested its intent to impose
the duty to keep the job site safe upon Lanzo in the construction contract between Lanzo and the
city.
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In arguing that HRC had a duty to stop Lanzo’s work if there were safety issues at the job
site, plaintiff cites a provision in the construction contract between Lanzo and the city. However,
HRC was not a party to the construction contract between Lanzo and the city and was not bound
thereby; any so-called duties which the construction contract attempted to impose upon HRC
were not binding upon HRC. See McDonough v General Motors Corp, 388 Mich 430, 442; 201
NW2d 609 (1972). Plaintiff also cites Drenkhahn v Smith, 103 Mich App 278; 303 NW2d 176
(1980), in support of its argument that HRC had a duty to ensure the safety of the job site. In
Drenkhahn, the estate of a construction worker who died in a cave-in at a sewer construction site
sued the City of Portage, the city’s engineer, and two inspectors in the engineering department.
This Court held that the contract between the city and the decedent’s employer, which did not
specifically vest responsibility for the safety of the job site with the city, nevertheless imposed a
duty upon the city to maintain the safety of the job site:
A careful reading of the contract between the City of Portage and Barry
Excavating, Inc. reveals several contract provisions which vested defendants with
the authority and duty to supervise and inspect the construction work to insure
compliance with contract specifications. Logically deducible from this contract
language is the duty to use reasonable care in maintaining the job site in a safe
condition for workers such as plaintiff’s decedent. [Id. at 286.]
The instant case is distinguishable from Drenkhahn, however, because in this case, Lanzo
expressly assumed responsibility for the safety of the job site under the terms of its construction
contract with the city. There is no indication from the facts in Drenkhahn that there was another
party who had assumed the responsibility for safety at the job site in that case. Furthermore, as
noted above, HRC was not a party to the contract between Lanzo and the city and therefore
cannot be said to have assumed any duties under that contract.
Plaintiff finally argues that the trial court erred in granting HRC’s motion for summary
disposition because HRC acted as construction manager of the work site. According to plaintiff,
a construction manager is treated the same as a general contractor and HRC is therefore liable
because it retained control of the work site and the job constituted an inherently dangerous
activity.
The employer of a worker is generally responsible for job safety and maintaining a safe
workplace. Butler v Ramco-Gershenson, Inc, 214 Mich App 521, 531; 542 NW2d 912 (1995).
A general contractor is ordinarily not liable for the negligence of independent subcontractors and
their employees. Ghaffari v Turner Construction Co, 473 Mich 16, 20; 699 NW2d 687 (2005).
However, there are two exceptions to this rule. The first exception to the nonliability of a
general contractor involves dangers occurring in common work areas. Under this exception, it is
“part of the business of a general contractor to assure that reasonable steps within its supervisory
and coordinating authority are taken 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 NW2d 641 (1974), overruled in part on
other grounds Hardy v Monsanto Envir-Chem Systems, Inc, 414 Mich 29 (1982). The second
exception to the nonliability of the general contractor involves work that constitutes an
“inherently dangerous activity.” DeShambo v Anderson, 471 Mich 27, 31; 684 NW2d 332
(2004). Plaintiff argues that he established a genuine issue of material fact regarding the
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inherently dangerous activities exception and what it characterizes as the retained control
exception. We disagree.
Plaintiff argues that HRC retained control because it retained the right to inspect the work
to ensure that the plans and specifications were being followed, it drafted the contract
documents, including the plans and specifications for the work that was to be done and the
trenching safety measures that were to be used, and it had the authority to suspend Lanzo’s work.
In Ormsby v Capital Welding, Inc, 471 Mich 45, 49; 684 NW2d 320 (2004), the Supreme Court
clarified that “the ‘retained control doctrine’ is a doctrine subordinate to the ‘common work area
doctrine’ and is not itself an exception to the general rule of nonliability.” Furthermore, under
Ormsby, the retained control doctrine only applies to property owners. Id. at 49. “The ‘retained
control’ doctrine is merely a subordinate doctrine . . . that has no application to general
contractors.” Id. at 56 (emphasis in original). Therefore, even assuming, as plaintiff alleges, that
HRC was a general contractor, the retained control doctrine is inapplicable because HRC was not
the property owner in this case. Id.
Furthermore, the trial court did not err in granting HRC’s motion for summary
disposition based on plaintiff’s failure to establish a genuine issue of material of fact regarding
whether the work was inherently dangerous. Plaintiff asserts on appeal that the work was
inherently dangerous because the wet soil conditions made a cave-in a certainty. However,
plaintiff merely asserts in its brief on appeal that the work was inherently dangerous without
citation to any documentary evidence to support its position. Furthermore, plaintiff does not cite
any case law or statutory authority in its appellate brief to support its contention that the wet soil
made a cave in a certainty. A party who fails to brief the merits of an alleged error has
abandoned the issue on appeal. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406;
651 NW2d 756 (2002). In any event, the inherently dangerous activities exception does not
apply under the facts of this case. The Supreme Court has held that the inherently dangerous
activities doctrine applies only to innocent third parties, and not to individuals who are involved
in the performance of dangerous work. DeShambo, supra at 28, 38. “[T]he inherently
dangerous activity exception does not apply when the injured party is an employee of an
independent contractor rather than a third party.” Id. at 41. Because plaintiff’s decedent was an
employee of Lanzo who was actively involved in the performance of the dangerous work, the
exception is inapplicable to the facts of this case.
Affirmed.
/s/ Michael R. Smolenski
/s/ Bill Schuette
/s/ Stephen L. Borrello
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