RANDY ALDERMAN V J C DEVELOPMENT COMMUNITIES LLC
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STATE OF MICHIGAN
COURT OF APPEALS
RANDY ALDERMAN,
UNPUBLISHED
August 25, 2009
Plaintiff-Appellant,
v
No. 285744
Oakland Circuit Court
LC No. 2007-082233-NO
J C DEVELOPMENT COMMUNITIES, LLC,
Defendant-Appellee.
Before: Owens, P.J., and Servitto, and Gleicher, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for
summary disposition. We reverse. This appeal has been decided without oral argument pursuant
to MCR 7.214(E).
Plaintiff initiated this action against defendant, the general contractor of a subdivision
project, when he was injured on the subdivision job site. Plaintiff was employed by J. S.
Trudeau, a subcontractor engaged to pour concrete basements for the subdivision project
encompassing over 200 homesites, including 13 homesites that ran along and parallel to electric
power lines. Trudeau used a 65-foot crane to lift forms from trucks and set them in place around
each home’s future basement. The forms would be set one day, concrete would be poured, and
the forms would be removed by the crane the next day and replaced on the trucks. The crew
would then move to the next site, and other subcontractors would continue with the next steps in
the building process.
On October 9, 2006, plaintiff was part of a crew of six men working for Trudeau on
homesite 273, one of the sites adjacent to the power lines. As the crane lowered one of the forms
onto the foundation, it contacted a power line. A jolt of electric current flowed through the crane
and down the chain to the form and the metal “whaler” plaintiff was using to control the form
from the ground. Plaintiff was knocked unconscious and his hands and feet were severely
burned, requiring skin grafts.
Defendant moved for summary disposition and the trial court, finding that the accident
did not occur in a common work area, entered an order granting summary disposition in
defendant’s favor. This Court reviews a trial court's decision regarding summary disposition
pursuant to MCR 2.116(C)(10) de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d
151 (2003). Summary disposition is proper when, upon examining the pleadings, admissions
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and other evidence in the light most favorable to the non-moving party, there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law. Brown v Brown,
478 Mich 545, 551-552; 739 NW2d 313 (2007). The only issue for resolution in this matter is
whether the common-work-area doctrine is applicable to the facts of this case.
When a worker is injured on a construction site, the general rule is, 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; instead, the immediate employer of a construction worker is
responsible for the worker’s job safety. Latham v Barton Malow Co, 480 Mich 105, 112; 746
NW2d 868 (2008), citing Funk v Gen Motors Corp, 392 Mich 91, 104; 220 NW2d 641 (1974),
overruled in part on other grounds Hardy v Monsanto Enviro-Chem Sys, Inc, 414 Mich 29; 323
NW2d 270 (1982). The Funk Court created the common-work-area doctrine 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, and requiring
them to take reasonable steps to prevent injury. Latham, supra at 107.
To establish the liability of a general contractor under the common-work-area doctrine, a
plaintiff must prove four elements: (1) that the defendant 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 workers;
and, (4) in a common work area. Ormsby v Capital Welding, Inc, 471 Mich 45, 57; 684 NW2d
320 (2004) citing Funk, supra, at 102.
Here, the trial court determined that the area where the accident occurred was not a
common work area, as only workers from plaintiff’s own crew were present at the site and
exposed to danger from the possibility of the crane touching the overhead wires. The court
opined, “[a]t most, six employees of one subcontractor were exposed to the risk of electrocution.
This is not sufficient to establish a common work area.” Essentially, the trial court found that
plaintiff failed to establish a question of fact with respect to elements (3) and (4), above. We
disagree.
Plaintiff presented evidence that this construction project was rather large and that his
employer was not the only subcontractor working in the vicinity of the power lines on the date of
this accident. Carpenters were working on the lot directly next to the lot on which plaintiff was
injured. In fact, it was one of the carpenters that called 911 when plaintiff was injured.
Plumbers were also working on the lot across the street from plaintiff, and cars were driving up
and down the street, as at least 20 homes were under construction at the same time on the project.
Testimony was also presented that workers performing construction on other homes in the
project would sometimes stop to speak to workers at other lots, and that they occasionally used
their equipment to help other crews.
While defendant focuses on the fact that the crane hit the power lines and endangered
only plaintiff’s crew and only electrocuted plaintiff, the risk associated with the crane hitting the
power line extended far beyond the specific lot where plaintiff was injured. Plaintiff’s crew may
have been the only subcontractors working on lot 273 when the accident occurred, but the power
lines did not merely run along the one lot. They ran along several lots under active construction,
and electricity is commonly understood to be hazardous. The crane could easily have torn down
the power lines, creating a hazard to anyone within striking distance of the fallen lines, or could
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have caused a fire. The risk of harm associated with a crane hitting the power lines is high and is
not as narrow as defendant would suggest. The risk at issue is the potential harm to be had if the
crane hit the power lines—not merely the harm to be had if the crane made contact with the
power lines and someone was involved in the electrical circuit between the power lines the crane.
Defendant also narrowly defines the “site” as lot 273. It appears, however, that workers
of other subcontractors were present on several other lots adjacent to or near lot 273 at the same
time plaintiff’s crew was working on lot 273 (and specifically when plaintiff was injured), and
these other subcontractors were engaged in various aspects of the same general construction
project. The common-work-area doctrine “distinguish[es] 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.” Hughes v PMG Bldg, 227 Mich App 1, 8-9; 574 NW2d 691 (1997). Furthermore, “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.” Id. at 6. Where, as here, there were several workers of many
different subcontractors in close proximity to the power lines when the accident occurred (and
they and others would continue to work in the area), a question of fact exists as to whether the
area could be construed as a common work area.
There is also a question of fact as to whether the risk was posed to a significant number
of workers. Defendant suggests that the risk was to a very narrow class of individuals, i.e., only
those in immediate contact with metal when the crane touched the wires. As indicated above, the
risk could have extended to anyone working on the project within the immediate vicinity of the
power lines. It is not only a question of fact whether six constitutes a “significant” number of
workers for purposes of the common-work-area doctrine, but the evidence suggests that there
were several employees of many subcontractors working within the area beneath or in close
proximity to the power lines. These other workers should be considered by the trier of fact in
determining whether or not plaintiff was injured in a common work area.
Moreover, it appears from the record that the lot upon which plaintiff was injured was
only one of thirteen lots in close proximity to the power lines, and that the remaining twelve lots
either already had or would require a crane operating near the power lines to build foundations.
The workers involved in the use of a crane on these remaining lots (and workers present on
adjacent or nearby lots) would be exposed to the same risk of harm. The number of workers at
risk over the course of the project could be determined to be far more than six.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Donald S. Owens
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
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