BRENT CURRY V CORNERSTONE BUILDING GROUP INC
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STATE OF MICHIGAN
COURT OF APPEALS
BRENT CURRY,
UNPUBLISHED
March 31, 2009
Plaintiff-Appellant,
v
No. 283191
Oakland Circuit Court
LC No. 2006-077688-NO
CORNERSTONE BUILDING GROUP, INC.,
Defendant/Cross-Defendant/ThirdParty Plaintiff-Appellee,
and
PAC-VAN INC.,
Defendant-Cross-Plaintiff,
and
STRAIGHT ARROW MODULAR, LLC,
Defendant,
and
CONTI ELECTRIC INC.,
Third-Party Defendant.
Before: Saad, C.J., and Bandstra and Hoekstra, JJ.
PER CURIAM.
Plaintiff Brent Curry appeals as of right the trial court court’s order granting summary
disposition to defendant Cornerstone Building Group, Inc. (defendant) in this action arising from
injuries plaintiff suffered at a construction site. We affirm.
Defendant served as the general contractor for construction of a new bank building in
Commerce Township, Michigan. To facilitate its operations at the site, defendant leased a
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temporary trailer, to be used as an office for its construction superintendent, together with a
temporary metal stairway to access the trailer. In accordance with the industry standard, the
temporary stairway was placed adjacent to, but was not affixed to, the trailer, there being no
means to affix the stairway to the trailer.1 Plaintiff was employed as a journeyman electrician by
Conti Electric, the electrical subcontractor for the project. On December 15, 2004, plaintiff was
asked to move light fixtures from the bank building into defendant’s trailer for safe storage while
the bank building was carpeted. As he was doing so, his leg slipped down between the stairs and
the trailer causing injury to his back and knee.
Plaintiff first argues that the trial court erred by summarily disposing of his premises
liability claim. We disagree.
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003); Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998); Rice v Auto Club Ins Ass’n, 252
Mich App 25, 30; 651 NW2d 188 (2002). “A motion under MCR 2.116(C)(10) tests the factual
sufficiency of the complaint.” Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999).
In evaluating such a motion, a court considers the entire record in the light most favorable to the
party opposing the motion, including affidavits, pleadings, depositions, admissions, and other
evidence submitted by the parties. Corley v Detroit Board of Educ, 470 Mich 274, 278; 681
NW2d 342 (2004). Summary disposition is appropriate only if there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. MCR
2.116(C)(10).
As our Supreme Court explained in Orel v Uni-Rak Sales Co, 454 Mich 561, 568; 563
NW2d 241 (1997), quoting Merritt v Nickelson, 407 Mich 544, 552-553; 287 NW3d 178 (1980),
“[p]remises liability is conditioned upon the presence of both possession and control over the
land. . . . [o]wnership alone is not dispositive.” See also, Kubczak v Chemical Bank & Trust Co,
456 Mich 653, 660; 575 NW2d 745 (1998), quoting Merritt, supra at 552; Orel, supra at 568 (“It
is well established . . . that ‘[p]remises liability is conditioned upon the presence of both
possession and control over the land.’”). Thus, that defendant did not own the property upon
which the trailer sat is not dispositive; the trailer and stairway constituted defendant’s premises if
defendant exercised both possession and control over it. Defendant leased the temporary trailer
and stairway, arranged for its delivery to the construction site, selected its location on site, and
maintained exclusive possession and control over it, using it as its on-site office for the duration
of the project. Therefore, we conclude that the trailer and stairway constituted defendant’s
premises.
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Defendant Pac-Van, Inc. leased the trailer and stairway to defendant; defendant Straight Arrow
Modular, LLC, delivered the trailer and stairway and placed them at the construction site.
Having granted defendant Cornerstone Building Group’s motion for summary disposition, the
trial court also dismissed plaintiff’s claims against Pac-Van and Straight Arrow. Neither PacVan nor Straight Arrow is party to this appeal.
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To state a valid claim sounding in premises liability, “a plaintiff must prove the elements
of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty;
(3) the breach was the proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered
damages.” Benton v Dart Properties, 270 Mich App 437, 440; 715 NW2d 335 (2006). With
respect to the duty defendant owed to plaintiff, there is no dispute that plaintiff was a business
invitee at defendant’s trailer when the incident occurred. As such, plaintiff was entitled to “the
highest level of protection” imposed under premises liability law; defendant was not only
obligated to protect him from known dangers but also had “the additional obligation to make the
premises safe, which requires the landowner to inspect the premises, and depending on the
circumstances, make any necessary repairs or warn of any discovered hazards.” James v Alberts,
464 Mich 12, 19-20; 626 NW2d 158 (2001), quoting Stitt v Holland Abundant Life Fellowship,
462 Mich 591, 596-597; 64 NW2d 88 (2000).
In Clark v K-Mart Corp, 465 Mich 416; 634 NW2d 347 (2001), the plaintiff allegedly
injured herself after she slipped on several loose grapes on the floor of the defendant’s store.
The Supreme Court noted that there was no direct evidence of when or how the grapes came to
be on the floor. Nonetheless, the Court reasoned that the jury could have reasonably inferred that
they were dropped there when a customer approached a nearby checkout lane while it was still
open, at least an hour before plaintiff’s fall. Thus, the jury could have inferred that an employee
of the store should have noticed the grapes in the intervening time and cleaned them up. The
Supreme Court noted that the case was distinguishable from many where “defendants have been
held entitled to directed verdicts because of the lack of evidence about when the dangerous
condition arose.” Id. at 421.
The dangerous condition at issue here was a gap between the trailer and the steps
sufficiently wide for plaintiff’s foot to slip into. As in Clark, there was no direct evidence about
when that condition arose. Plaintiff presented testimony that his foreman observed a two to three
inch gap prior to the accident but it is not clear from the record how long that gap existed and,
more importantly, such a gap would not have been wide enough to present a danger to plaintiff.
Plaintiff also presented testimony that it was known in the industry that the stairway could
become separated from the trailer as a result of wind, heavy use, being struck by a vehicle or
other object, or for other reasons. However, alternatively, the gap observed by plaintiff’s
foreman could have also widened as a result of plaintiff’s work moving the light fixtures into the
trailer. In any event, no evidence was presented from which a fact-finder could logically infer
when the gap widened sufficiently to create a dangerous condition. Thus, plaintiff failed to
“establish[] a sufficient length of time that the jury could infer that defendant should have
discovered and rectified the condition,” and defendant was entitled to summary disposition
“because of the lack of evidence about when the dangerous condition arose.” Clark, supra at
420-421.
Plaintiff also argues that the trial court erred by granting summary disposition of his
common-work area claim. We disagree.
At common law, a general contractor, such as defendant, generally could not be held
liable for the negligence of independent subcontractors and their employees. Ormsby, supra at
53; Signs v Detroit Edison Co, 93 Mich App 626, 632; 287 NW2d 292 (1979). However, “[i]n
Funk, [supra, our Supreme] Court, exercising its common-law authority, expanded the duties of
those ultimately in control of a construction project worksite (most often the general contractor),
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by creating the common-work area doctrine.” Latham v Barton Malow Co, 480 Mich 105, 111112; 746 NW2d 868 (2008). This doctrine
is understood as an exception to the general rule that, in the absence of its own
active negligence, a general contractor is not liable for the negligence of a
subcontractor or a subcontractor’s employee and that the immediate employer of a
construction worker is responsible for the worker’s job safety.
Essentially, the rationale behind the Funk doctrine is that the law should
be such as to discourage those in control of the worksite from ignoring or being
careless about unsafe working conditions resulting from the negligence of
subcontractors or the subcontractors’ employees. This Court explored the history
of the doctrine in depth in Ghaffari v Turner Constr Co, [473 Mich 16; 699
NW2d 687 [2005),] in which we observed that “‘in many cases only the general
contractor is in a position to coordinate work or provide expensive safety features
that protect employees of many or all of the subcontractors.’” Subcontractors and
their employees, even if they are aware of hazards, may be unable to rectify the
situation themselves or to compel others to do so. In cases in which normal safety
precautions can reduce a hazardous condition so that it no longer creates a high
degree of risk to workers, the general contractor’s duty is to take reasonable steps
to ensure that those safety precautions are taken. In such cases, in order to state a
cause of action against a general contractor under the common-work-area
doctrine, the plaintiff must show that the general contractor’s failure to reasonably
ensure that workers were observing safety procedures resulted in a significant
number of workers being exposed to a high degree of risk in a common work
area. [Latham, supra at 111-112.]
Thus, to state a valid common-work area claim, a plaintiff must establish that:
(1) the defendant . . . general contractor, failed to take reasonable steps within its
supervisory and coordinating authority (2) to guard against readily observable and
avoidable dangers (3) that created a high degree of risk to a significant number of
workmen (4) in common work areas. [Ormsby, supra at 54.]
See also, Ghaffari, supra at 20-21 (summarizing the development of the common-work area
doctrine). Because the common-work area doctrine “imposes liability only if the general
contractor fails to prevent negligence,” the danger at issue “cannot be just the unavoidable,
perilous nature of the site itself. Rather, the danger for which a duty attaches is an avoidable
danger to which a significant number of workers are exposed . . . .” Latham, supra at 107.
Considering the record presented, we conclude that the trial court properly determined
that plaintiff failed to establish that the stairway presented a readily observable danger. There
was no evidence that any complaints were made about a dangerous gap between the stairway and
the trailer, that defendant’s superintendent observed or was made aware of any such gap, that
plaintiff or his coworker observed any such gap, or that anyone expressed any concerns about the
safety of the stairway. Additionally, all relevant testimony concurred that it was the industry
standard to place the stairs adjacent to, and not affix them to, the trailer, and further, that there
was no means to affix the stairway to the trailer. Thus, there was no evidence that there was a
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readily observable danger posed by the stairway.
We affirm. Defendant may tax costs pursuant to MCR 7.219, having prevailed in full.
/s/ Henry William Saad
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
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