DOUGLAS LATHAM V BARTON MALOW COMPANY
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STATE OF MICHIGAN
COURT OF APPEALS
DOUGLAS LATHAM,
UNPUBLISHED
December 7, 2010
Plaintiff-Appellant,
v
No. 290268
Oakland Circuit Court
LC No. 2004-059653-NO
BARTON MALOW COMPANY,
Defendant-Appellee.
Before: K.F. KELLY, P.J., and WILDER and GLEICHER, JJ.
PER CURIAM.
In this construction site injury case filed by plaintiff Douglas Latham against defendant
Barton Malow Company, plaintiff appeals as of right a circuit court order granting defendant
summary disposition pursuant to MCR 2.116(C)(10). We reverse and remand for further
proceedings.
I. UNDERLYING FACTS & PROCEDURAL HISTORY
This case arose after plaintiff fell from an elevated island in a middle school construction
site in Lake Orion. The island would eventually house heating and cooling (hvac) equipment.
Stud walls enclosed the island on three sides, and a stud wall also partially enclosed the fourth
side. A six-foot-wide opening remained in the fourth wall, through which workers could access
the inside of the elevated island and deliver the hvac equipment. A removable cable stretching
across the opening served as the fall protection device for workers on the island. Defendant
managed the construction project, and plaintiff worked as a carpenter for subcontractor B & H
Construction.
On the day of plaintiff’s fall, he and a coworker ascended to the island on a scissors lift,
carrying about 12 sheets of drywall. When the lift arrived at the island, plaintiff’s coworker
removed the cable barrier to permit the workers to step onto the island. The coworker entered
the island first, carrying one end of a sheet of drywall. Plaintiff stepped onto the island holding
the other end of the drywall in his hands. As plaintiff did so, the sheet of drywall cracked and he
lost his balance and fell. Plaintiff filed a complaint in July 2004, alleging that his injury occurred
in a common work area and that defendant breached its duty to provide a reasonably safe work
place. Plaintiff’s claim centers on his position that defendant failed to employ an adequate safety
system to prevent falls when workers entered and exited the elevated island.
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In November 2004, defendant sought summary disposition of the complaint under MCR
2.116(C)(10), which the circuit court denied. This Court affirmed the circuit court’s denial of
summary disposition. Latham v Barton Malow Co, unpublished per curiam opinion of the Court
of Appeals, issued October 17, 2006 (Docket No. 264243). However, the Michigan Supreme
Court reversed this Court’s decision and remanded the case “to the trial court for further
proceedings consistent with this opinion.” Latham v Barton Malow Co, 480 Mich 105, 108, 115;
746 NW2d 868 (2008). The Supreme Court held that both this Court and the circuit court had
misapprehended the danger plaintiff confronted while working on the elevated island:
Accordingly, in this case … the danger that created a high degree of risk is
correctly characterized as the danger of working at heights without fall-protection
equipment. It is this danger to which a significant number of workers must be
exposed in order for a claim to exist.
***
With the relevant danger correctly perceived, the error of the lower courts’
analyses becomes apparent. While defendant’s motion for summary disposition
identified the correct danger and further raised the issue that plaintiff’s own
failure to wear a fall-protection device did not create a high degree of risk to a
significant number of workers, the trial court and the Court of Appeals erred by
misidentifying the danger and inevitably erred in the subsequent analysis
regarding how many other workers were exposed to the risk. [Id. at 114-115
(emphasis in original, footnotes omitted).]
In a footnote to this text, the Supreme Court elaborated its holding by invoking the Court’s prior
opinion in Funk v Gen Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), overruled on other
grounds in Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982):
Heights on construction projects, we conclude, as did the Funk Court, are
not avoidable. Thus, heights are not by themselves hazards addressed by Funk.
We have never said what fall-protection gear is needed at heights. The question is
whether fall protection was available and whether the general contractor took
reasonable steps to see that it was used. [Latham, 480 Mich at 114 n 24
(emphasis added).]
In another footnote premised on Funk, the Supreme Court further explained:
Although we focus here on only one of the common-work area elements,
we note that plaintiff must satisfy all the elements that give rise to a duty owed by
a general contractor. Funk also requires plaintiff to show that the failure of a
significant number of workers to take safety precautions was readily observable
and that the failure was avoidable. Finally, the plaintiff must, of course, also
show that the defendant failed to take reasonable steps to ensure compliance and
that the danger existed in a common work area. [Id. at 115 n 25.]
On April 29, 2008, just over two weeks after the Supreme Court decided Latham, 480
Mich 105, defendant filed in the circuit court a proposed order of dismissal pursuant to MCR
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2.602(B)(3). On May 5, 2008, defendant sought rehearing in the Supreme Court, urging that the
Court “modify its original Opinion to clarify that the trial court should enter an Order granting
Defendant’s motion for summary disposition upon remand.” Plaintiff objected to the entry of the
proposed order of dismissal, and on May 6, 2008 the circuit court issued an order “granting”
plaintiff’s objections to dismissal, offering the following rationale:
Because the Supreme Court’s decision in this matter did not order this
Court to close the case but only found that the Court utilized the incorrect
analysis, the presented order is erroneous and is rejected. In addition, the Court’s
April 24, 2008 order regarding re-briefing of the issues governs. (The Court will
hold a pretrial/status conference if the parties desire.)
On May 28, 2008, the Supreme Court denied defendant’s motion for rehearing. Latham v Barton
Malow Co, 481 Mich 882.
On July 2, 2008, the circuit court entered an order briefly explaining its position with
respect to a potential renewed motion for summary disposition:
[I]n light of the Supreme Court ruling … , new briefing is required and,
therefore, should the Defendant desire to renew its motion for summary
disposition in light of the Supreme Court’s decision, the DEFENDANT is
DIRECTED to file a revised Motion and Supporting Brief for Summary
Disposition consistent with the Supreme Court’s ruling. [Emphasis added.]
After a pretrial conference in October 2008, the circuit court entered an amended scheduling
order instructing that the parties file any motions to reopen or extend discovery by November 5,
2008. The order further envisioned that “to the extent dates are not extended/amended or
reopened,” defendant “is directed to file a revised Motion and Supporting Brief for Summary
Disposition consistent with” the Supreme Court’s opinion in Latham, 480 Mich 105.
Plaintiff timely filed a motion to reopen discovery and amend his witness list. Plaintiff
hoped to add one witness, Scott Schrewe. Schrewe had replaced plaintiff on the job site after
plaintiff’s fall. Plaintiff submitted Schrewe’s affidavit, in which Schrewe attested that he never
wore personal fall protection equipment while on the elevated island “because there was nothing,
I believed, in which to attach personal fall protection to.” Defendant opposed the addition of
Schrewe to plaintiff’s witness list, insisting that “[t]here is absolutely no authority to support
Plaintiff’s request for additional discovery after this Court has already ruled on Defendant’s
motion once and the already-length [sic] discovery period has long been closed,” and “[i]t would
be inconsistent with the Supreme Court’s order to allow Plaintiff to now introduce new
evidence.” On November 10, 2008, the circuit court entered an order dispensing with oral
argument and denying an adjournment, in part on the basis that “there is no good cause or
unforeseen/exceptional circumstance.”
Defendant renewed its motion for summary disposition in late November 2008, and
plaintiff filed a timely response brief. Plaintiff attached to the response several depositions,
including his own 2004 deposition, and a December 2008 affidavit signed by plaintiff. In
January 2009, the circuit court entered a written opinion and order granting defendant’s motion,
which reasoned in pertinent part:
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Having carefully reviewed and weighed the parties’ submissions, together
with the Supreme Court’s decision supra, this Court is constrained to find that, for
the reasons, analysis and authorities cited by the Defendant, the Motion must be
granted. (The Court incorporates the Defendant’s Renewed Motion and briefing
as though fully stated herein.) Consistent with this finding, the Schrewe Affidavit
must be struck as it impermissibly expands the record and violates this Court’s
Order dated 11/10/08 denying the Plaintiff’s motion to reopen discovery and
amend his witness list (to include, inter alia, testimony by Mr. Schrewe).
Likewise, for the reasons stated in the Defendant’s Reply, the Plaintiff’s Affidavit
also cannot be considered as it also attempts to improperly expand the record.
The Supreme Court’s remand directive, coupled with this Court’s denial of the
Plaintiff’s motion to reopen discovery, confirm that the scope of this Court’s
review is limited to the record pending before this Court at the time of oral
argument on the original motion for summary disposition. [Emphasis added.]1
II. CIRCUIT COURT’S INTERPRETATION OF SUPREME COURT’S REMAND
DIRECTIVE
Plaintiff initially contends on appeal that the circuit court misinterpreted the remand
instructions given by the Michigan Supreme Court in Latham, 480 Mich 105. Plaintiff
challenges as incorrect the circuit court’s ruling that the Supreme Court’s decision and remand
instructions foreclosed further factual development of the proper peril issue. In plaintiff’s view,
because the parties previously focused on an incorrect peril, the record demanded further
development concerning the central issue identified by the Supreme Court, whether a significant
number of workers were exposed to the danger of working at height without fall protection.
“It is the duty of the lower court or tribunal, on remand, to comply strictly with the
mandate of the appellate court.” Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273
Mich App 496, 532; 730 NW2d 481 (2007) (internal quotation omitted). “Interpreting the
meaning of a court order involves questions of law that we review de novo on appeal.”
Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 460; 750 NW2d 615 (2008).
In granting defendant’s renewed motion for summary disposition, the circuit court
expressed that it had limited the scope of its review on remand to the evidence before it at the
time the parties originally argued defendant’s summary disposition motion. However, the
Supreme Court’s opinion in Latham, 480 Mich 105, plainly did not specifically mandate that the
circuit court limit the proceedings on remand to the same record as that already developed, and
contained no specific direction whatsoever with respect to the proceedings on remand. Rather,
the Supreme Court instructed only as follows:
Because both lower courts misapprehended the appropriate danger to
examine and decided the case on that erroneous basis, they also erred on the issue
1
Defendant subsequently filed a motion for taxable costs and case evaluation sanctions, which
the circuit court denied.
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whether a significant number of workers would be exposed to the relevant peril.
With the appropriate danger clarified, we reverse the judgment of the Court of
Appeals and remand this case to the trial court for further proceedings consistent
with this opinion. [Id. at 108.]
. . . [T]he trial court and the Court of Appeals erred by misidentifying the
danger and inevitably erred in the subsequent analysis regarding how many other
workers were exposed to the risk. We therefore reverse the judgment of the Court
of Appeals and remand this case to the trial court for further proceedings
consistent with this opinion. [Id. at 115.]
Contrary to the circuit court’s opinion and order granting defendant’s renewed motion for
summary disposition, the Supreme Court simply in no respect limited the scope of review on
remand.
Nor does case law support any constraint on a trial court’s authority to consider
additional evidence on remand. When an appellate court remands a case, the proceedings on
remand “are limited to the scope of the remand order.” People v Canter, 197 Mich App 550,
567; 496 NW2d 336 (1992). “The power of the lower court on remand is to take such action as
law and justice may require so long as it is not inconsistent with the judgment of the appellate
court.” Sokel v Nickoli, 356 Mich 460, 464; 97 NW2d 1 (1959). Here, consideration of
additional evidence would not have conflicted with the Supreme Court’s judgment in Latham,
480 Mich 105.
The circuit court in July 2008 recognized that in light of the Supreme Court’s
clarification of the applicable law, “new briefing [wa]s required.” In denying defendant’s later
motion for costs and case evaluation sanctions, the circuit court reasoned that
[t]he area of the law addressed by the parties was less than settled and has
significant jurisprudential value. Witness the Michigan Supreme Court’s decision
to grant leave in the case and issue a thorough opinion reversing the Court of
Appeals. Moreover, even the Supreme Court could not resolve this case
forthrightly. . . . Indeed, this Court required additional briefing even after the
remand by the Supreme Court to resolve this case.
These findings evidence that resolution of defendant’s summary disposition motion necessitated
a fresh review of the entire record and the consideration of new arguments flowing from the
Supreme Court’s opinion.
Moreover, the Supreme Court’s denial of defendant’s motion for rehearing additionally
supports that the Supreme Court lacked any intent to circumscribe the evidence available to the
circuit court on remand. Defendant argued in its rehearing motion that the Supreme Court
should simply “modif[y]” its opinion “to clarify that the proper disposition of this matter on
remand is to enter an Order granting Defendant’s motion for summary disposition.” Yet, the
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Supreme Court denied the motion for rehearing, signaling that it intended for the circuit court to
conduct future proceedings in accordance with the clarified rule of law that the Supreme Court
had announced.2
III. AMENDMENT OF PLAINTIFF’S WITNESS LIST
Plaintiff next challenges the circuit court’s ruling that he failed to show good cause for
adding Schrewe to his witness list, emphasizing that Schrewe’s testimony “goes right to the heart
of the purpose of the remand,” and that his deposition would not have meaningfully delayed the
proceedings. We review for an abuse of discretion a circuit court’s decision whether to allow
amendment of a witness list. Tisbury v Armstrong, 194 Mich App 19, 20; 486 NW2d 51 (1992).
To the extent that resolution of this issue also involves court rule interpretation, we consider de
novo this legal question. Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009).
According to MCR 2.401(I)(2), “The court may order that any witness not listed in
accordance with this rule will be prohibited from testifying at trial except upon good cause
shown.” The circuit court did not entertain argument on plaintiff’s motion to add Schrewe to his
witness list, but in a form order offered several reasons for denying the motion:
There is no good cause asserted or the reason asserted for the adjournment
does not constitute good cause warranting adjournment. MCR 2.503(B)(1) and/or
(B)(2)(b).
There is no unforeseen or exceptional circumstance asserted or the reasons
asserted for the adjournment do not constitute such circumstances. LAO 20046(D).
The Motion or Stipulation fails to state whether other adjournments have
been granted in the proceeding, and, if so, the number granted in violation of
MCR 2.503(B)(2) and LAO 2004-6(D)(2).
The Motion or Stipulation fails to comply with MCR 2.503(B)(3) and
LAO 2004-6(D)(3) because the entitlement (motion caption) fails to specify
whether it is the first or a later request.
Other: For the reasons articulated in portions of the Defendants’ [sic]
Response, most particularly in the Argument section of the Response, there is no
good cause or unforeseen/exceptional circumstance.
2
In the order granting argument on defendant’s application for leave to appeal, the Supreme
Court directed the parties to brief “whether the trial court should have granted summary
disposition in the defendant’s favor based on this issue.” Latham v Barton Malow Co, 477 Mich
1118 (2007). That the Supreme Court declined to rule that summary disposition should have
been granted further reflects that the Court anticipated further argument on this issue in the
circuit court.
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The circuit court selected an outcome falling outside the range of principled and
reasonable outcomes when it declined to permit plaintiff to add Schrewe as a witness who had
knowledge of the issue defined by the Supreme Court as dispositive of this case. Taylor v Kent
Radiology, PC, 286 Mich App 490, 524; 780 NW2d 900 (2009). While not abundantly clear, the
circuit court’s order denying plaintiff’s motion appears to rest in large measure on its
untimeliness. Although the circuit court had authority to bar Schrewe’s testimony, “the fact that
such action is discretionary rather than mandatory necessitates a consideration of the
circumstances of each case to determine if . . . a drastic sanction is appropriate.” Dean v Tucker,
182 Mich App 27, 32; 451 NW2d 571 (1990). “[T]he mere fact that a witness list was not timely
filed does not, in and of itself, justify the imposition” of a sanction that occasions the dismissal
of the case. Id. “[W]hile rules of practice give direction to the process of administering justice
and must be followed, their application should not be a fetish to the extent that justice in a
particular case is not done.” Id. A ruling whether to let a party add a witness should consider
relevant factors like
(1) whether the violation was willful or accidental; (2) the party’s history of
refusing to comply with discovery requests (or refusal to disclose witnesses); (3)
the prejudice to the defendants; (4) actual notice to the defendant of the witness
and the length of time prior to trial that the defendant received such actual notice;
(5) whether there exists a history of plaintiff’s engaging in deliberate delay; (6)
the degree of compliance by the plaintiff with other provisions of the court’s
order; (7) an attempt by the plaintiff to timely cure the defect; and (8) whether a
lesser sanction would better serve the interests of justice. This list should not be
considered exhaustive. [Id. at 32-33.]
“The record should reflect that the trial court gave careful consideration to the factors
involved and considered all its options in determining what sanction was just and proper in the
context of the case before it.” Bass v Combs, 238 Mich App 16, 26; 604 NW2d 727 (1999),
overruled in part on other grounds in Dimmitt & Owens Financial, Inc v Deloitte & Touche
(ISC), LLC, 481 Mich 618, 628; 752 NW2d 37 (2008). Where justice requires, a court “should
not be reluctant to allow” an unlisted witness to testify. Pastrick v Gen Tel Co of Michigan, 162
Mich App 243, 245; 412 NW2d 279 (1987). “[J]ustice is best served where an unlisted witness
can be permitted to testify while the interests of the opposing party are adequately protected,”
because neither party endures prejudice and “the jury is afforded a fuller development of the
facts surrounding the case.” Id. at 246. Generally, a court should impose appropriate and
reasonable conditions that prevent prejudice and enable the opposing party to meet the testimony
of the new witness. Id.
Plaintiff’s failure to list Schrewe in his initial witness list derives from plaintiff’s
misapprehension of the proofs necessary to establish his common work area claim. The circuit
court and three judges of this Court shared an identical misapprehension. Although the Supreme
Court did not change the law, it indisputably clarified it and redirected the focus of the proofs.
No evidence of record suggests that plaintiff willfully neglected to name Schrewe as a witness
before the Supreme Court’s ruling, or that plaintiff had engaged in any discovery abuse. Other
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than a brief delay of the summary disposition hearing for the purpose of deposing Schrewe,
defendant has not identified any prejudice.3
The record nowhere substantiates that the circuit court considered any of the factors listed
in Dean, 182 Mich App at 32-33. Because defendant would not suffer any discernible prejudice
arising from the addition of Schrewe to plaintiff’s witness list, and because Schrewe’s testimony
would afford the jury “a fuller development of the facts surrounding the case,” we conclude that
the circuit court abused its discretion in refusing to permit Schrewe’s addition to plaintiff’s
witness list. Pastrick, 162 Mich App at 246.
IV. DISREGARD OF PLAINTIFF’S AFFIDAVIT
Plaintiff next challenges the circuit court’s decision to disregard his affidavit, which
plaintiff filed with his response to defendant’s renewed motion for summary disposition. The
sole reason mentioned by the circuit court for its rejection of plaintiff’s affidavit was that the
affidavit “attempts to improperly expand the record.” As discussed in Part II, supra, no rational
basis exists for this conclusion given that the Supreme Court did not limit the circuit court’s
scope of review on remand. Nor does it enhance fairness or justice to have permitted defendant
to file a “revised” motion for summary disposition, while limiting plaintiff to the evidence
submitted in support of his earlier response.
In plaintiff’s December 2008 affidavit, he averred the following:
1. In my deposition taken on June 22, 2004, I testified that the week
before my accident I worked with two other coworkers (Tom and Gerald) on
another mezzanine installing drywall that had already been unloaded and placed
on the mezzanine level. (Page 37.)
2. In my deposition I further testified that the mezzanine level was similar
to the mezzanine from which I fell. (Page 39.)
3. If asked, I would have testified that the height [sic] of the two
mezzanines were approximately the same.
4. I testified at my deposition that the opening of the mezzanine in which
I worked for a week prior to my fall from the second mezzanine was
approximately the same size as that opening in the mezzanine from which I fell
and would have testified, if I had been asked, that there was no barricade of any
3
Throughout defendant’s brief on appeal, it repeatedly emphasizes that, unlike plaintiff, the
circuit court, and this Court, defendant properly understood the relevant legal issue all along. In
light of this fact, defendant contends that plaintiff should not be permitted to add any new
witnesses. Defendant’s prescience may be commendable, but we fail to comprehend how it
should entitle defendant to foreclose consideration of new evidence submitted after the Supreme
Court’s vindication of defendant’s argument.
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type or nature across the opening of the mezzanine through which men and
material had to cross to gain access or to exit. (Page 48.)
5. In my deposition I testified that we gained access to the mezzanine on
which I worked the week before my accident via a ladder (p. 38) because the
drywall had already been placed on the mezzanine level (p. 41). If asked, I would
have testified that we climbed carrying our tools and one of us would be on the
mezzanine to receive our tools as we climbed from the ladder to the mezzanine
level, and not one of us had any fall protection.
6. In my deposition I testified that while working in the other mezzanine
the week before my accident, I worked alongside with hvac people installing
ductwork. (Page 84.) If asked, I would have testified that there were 4 or more
different hvac workers present at various times during that week and that I
personally observed the hvac workers on different occasions at the unbarricaded
opening, receiving or lowering material, equipment or tools, without benefit of
any fall protection.
The averments in plaintiff’s affidavit do not contradict his deposition testimony; defendant
objects to plaintiff’s affidavit because it omits the names of any hvac workers and “expands the
record,” essentially constituting a “‘backdoor’ method of circumventing the trial court’s original
scheduling order.”
Pursuant to MCR 2.116(G):
(2)
Except as to a motion based on subrule (C)(8) or (9), affidavits,
depositions, admissions, or other documentary evidence may be submitted by a
party to support or oppose the grounds asserted in the motion.
***
(5)
The affidavits, together with the pleadings, depositions,
admissions, and documentary evidence then filed in the action or submitted by the
parties, must be considered by the court when the motion is based on subrule
(C)(1)-(7) or (10). . . .
(6)
Affidavits, depositions, admissions, and documentary evidence
offered in support of or in opposition to a motion based on subrule (C)(1)-(7) or
(10) shall only be considered to the extent that the content or substance would be
admissible as evidence to establish or deny the grounds stated in the motion.
Plaintiff’s affidavit satisfies the criteria contained in MCR 2.116(G)(6) because it
consisted of his first-person, nonhearsay accounts of information relevant to the circuit court’s
proper focus on remand from the Supreme Court, whether (1) “a significant number of workers”
had exposure to “the danger of working at heights without fall-protection equipment,” (2) “the
failure of a significant number of workers to take safety precautions was readily observable and
that the failure was avoidable,” and (3) “the danger existed in a common work area.” Latham,
480 Mich at 114 (emphasis omitted), 115 n 25; MRE 401. Plaintiff’s first-hand observations of
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his work environment amount to admissible evidence, irrespective whether he knew the names of
the hvac workers he saw. Furthermore, plaintiff’s neglect to volunteer the expanded detail
reflected in his affidavit in the course of his prior deposition does not constitute a ground for
striking his affidavit.4 The circuit court thus should have considered the affidavit as plainly
directed by MCR 2.116(G)(5).
V. PROPRIETY OF SUMMARY DISPOSITION
Plaintiff next challenges the merits of the circuit court’s decision to grant defendant’s
renewed motion for summary disposition. When considering a motion for summary disposition
under MCR 2.116(C)(10), a court must view the evidence submitted in the light most favorable
to the party opposing the motion. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468
(2003). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine
issue regarding any material fact and the moving party is entitled to judgment as a matter of
law.” Id. A genuine issue of material fact exists when the evidence submitted “might permit
inferences contrary to the facts as asserted by the movant.” Opdyke Investment Co v Norris
Grain Co, 413 Mich 354, 360; 320 NW2d 836 (1982). When a court affords “the benefit of
reasonable doubt to the opposing party” and identifies an issue about which reasonable minds
“might differ,” summary disposition cannot be granted. West, 469 Mich at 183. “[I]f reasonable
minds could disagree about the conclusions to be drawn from the facts, a question for the
factfinder exists.” Henderson v State Farm Fire & Cas Co, 460 Mich 348, 353; 596 NW2d 190
(1999).5
In Funk, 392 Mich 91, the Supreme Court announced the common work area doctrine,
which it described as follows:
We regard it to be 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. [Id. at 104.]
The elements of a common work area claim “are: (1) the defendant contractor failed to take
reasonable steps within its supervisory and coordinating authority (2) to guard against readily
4
Defendant cites Setterington v Pontiac Gen Hosp, 223 Mich App 594, 604-605; 568 NW2d 93
(1997), and Foehr v Republic Automotive Parts, Inc, 212 Mich App 663, 670; 538 NW2d 420
(1995), as supporting the circuit court’s discretionary rejection of plaintiff’s affidavit. We view
those cases as distinguishable; here, plaintiff’s offering of additional detail of matters discussed
during discovery does not equate to the discovery violations the trial courts found in
Setterington, 223 Mich App at 604-605, and Foehr, 212 Mich App 670, which prompted the
courts to exclude proffered evidence at trial.
5
In analyzing whether the circuit court should have granted summary disposition, we take into
account plaintiff’s recent affidavit, which the court erroneously neglected to consider.
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observable and avoidable dangers (3) that created a high degree of risk to a significant number of
workers (4) in a common work area.” Latham, 480 Mich at 109.6
The question presented on remand is whether plaintiff produced evidence reasonably
tending to show that defendant’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, 480 Mich at 113. 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, Inc, 227 Mich
App 1, 8; 574 NW2d 691 (1997). “[W]here a substantial number of employees of multiple
subcontractors may be exposed to a risk of danger,” public policy considerations allow a court to
impose liability on the general contractor. Id. at 8-9 (emphasis added). “The high degree of risk
to a significant number of workers must exist when the plaintiff is injured; not after construction
has been completed.” Ormsby v Capital Welding, Inc, 471 Mich 45, 60 n 12; 684 NW2d 320
(2004). “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.” Hughes, 227 Mich App at 6.
Although defendant’s alternative arguments maintain that the elevated island was not a
common work area, plaintiff has produced substantial evidence to the contrary. Ted Crossley,
one of defendant’s superintendents, testified at his deposition that in addition to the B & H
employees applying drywall, other trades working on the island included electricians (“[u]sually,
one or two”), and men delivering the heating and cooling equipment (“[f]our or five, at the
most”). Gerald Nutt, the B & H project supervisor, testified that after the drywall work
concluded, painters, electricians, and mechanical contractors would work on the island. Gary
Jordan, the safety supervisor for defendant’s public education group, testified that electricians,
drywallers, and plumbers worked on the island at various times. This testimony supports that at
least six workers from four different trades spent time working on the elevated island. And this
number of workers from different trades suffices to create a question of fact for the jury about
whether the elevated island constituted a common work area. See Groncki v Detroit Edison Co,
453 Mich 644, 664; 557 NW2d 289 (1996).
The primary question placed in dispute by defendant’s renewed summary disposition
motion is whether plaintiff presented evidence that a significant number of workers from
different trades faced an avoidable risk of working at dangerous heights without fall protection.
Latham, 480 Mich at 107. To survive defendant’s summary disposition motion, plaintiff must
also produce evidence that “the failure of a significant number of workers to take safety
6
For the purpose of the original summary disposition motion, defendant conceded that it served
as the general contractor for the school construction project. Id. at 108 n 3. Documentary
evidence attached to plaintiff’s brief supports that defendant maintained supervisory and
coordinating authority over the project, including as to safety. Defendant’s renewed summary
disposition motion does not contradict its earlier general contractor status concession or contest
its possession of power to enforce project safety rules.
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precautions was readily observable and that the failure was avoidable,” and “that the defendant
failed to take reasonable steps to ensure compliance and that the danger existed in a common
work area.” Id. at 115 n 25.
The fall protection readily available on the elevated island work area consisted of a sixfoot-long perimeter cable barrier, which Crossley described as having been “strung from stud to
stud” across the opening of the unfinished structure on the island. This cable came down each
time a worker entered or exited the island or loaded equipment or tools into the space. When the
cable came down, the work area was unprotected and posed a fall danger.
The parties agree that a worker’s use of a personal fall prevention system could have
remedied the fall danger during ingress and egress from the mezzanine. Jordan testified as
follows regarding fall protection when the cable came down:
Q. When that cable was taken down what could have been done to ensure
fall protection for the workers unloading the materials is my question to you.
A. What could have been done?
Q. Yes.
A. Are we talking about on B & H’s part?
Q. Yes. Anybody’s part.
A. Well, B & H … as far as from a safety perspective, B & H was
responsible for that if they took the guard railing down. What they should have
done was they should have followed their training and used a personal fall
protection device which would have been a body belt with double lanyards, two
lanyards.
Typically, what happens in the process when a work platform is elevated
and you have to leave this, you have to leave this platform, the safest way and the
way that you’re properly trained is you hook a lanyard to the basket, you step off,
out of the equipment. You hook a lanyard up to—in that circumstance, a stud
wall would have probably sufficed, at least held a man, and then you unhook the
lanyard in the basket. That’s called a double lanyard system.
Defendant’s “On-Site Project Safety and Loss Control Program” announces on the last page,
“The use of safety belts/harnesses and lanyards securely attached to an approved anchorage point
when working from unprotected high places is mandatory. Always maintain less than six feet of
slack in your lanyard.” A “Job Site Safety Orientation Video” checklist on which defendant
obtained plaintiff’s signature states under the “Fall Protection” section heading:
Any floor or wall opening that exposes an employee to a fall of 6 ft. or
more must be protected by fall protection.
For most large openings, a guard rail system is used for fall protection.
-12-
Guard rail consists of a top rail, mid-rail, and toe board.
Guard rail must be capable of withstanding a force of at least 200 lbs.
***
If you are unfamiliar with a personal fall arrest system, ask your
supervisor for a demonstration before using the equipment.
The tie-off point for a personal fall arrest system must be capable of
supporting 5,000 lbs. per employee attached. [Emphasis added.]
Aside from the cable at the entrance to the island, the record mentions only one
alternative fall protection device: the double lanyard system. However, the evidence conflicted
concerning whether the double lanyard system could have been used on the elevated island.
David Brayton, plaintiff’s construction site safety expert, testified at his deposition that, contrary
to Jordan’s suggestion that the double lanyard system would have offered adequate fall
protection, the metal studs available as anchors for the lanyards would not have supported
enough weight to satisfy governmental safety standards. According to Brayton, MIOSHA
standards dictate that the anchorages withstand “at least 5,000 pounds per employee attached,”
which the metal studs would not have done.7
In light of this testimony, a factfinder could reasonably infer that despite defendant’s
recognition of the need for personal fall protection when the six-foot cable came down,
defendant failed to offer a reasonable method of anchoring the double lanyards. Plaintiff’s
affidavit attesting that neither his coworkers nor the hvac workers utilized personal fall
protection equipment while entering and exiting the island supports that defendant neglected to
provide a reasonably safe common work area for a significant number of workers.
Plaintiff also presented evidence that the failure of the workers to use personal fall
protection would have appeared obvious to defendant. Crossley recounted that he daily
contacted all the contractors and “physically view[ed] the site twice a day,” and that Jordan
visited the job site regularly. Crossley could correct safety violations or direct the workers to
stop working if he saw something that that “put a red flag up” with regard to worker safety. On
the morning of plaintiff’s fall, Crossley observed plaintiff and his coworker preparing to use the
scissors lift, and asked for an operator’s license to verify their ability to use the equipment.
Crossley also knew that when the barrier cable was lowered, a hazard existed. Crossley admitted
awareness that the workers would require some manner of fall protection when the cable came
down. The failure of the workers to utilize the double lanyard system would have been an
obvious safety hazard that Crossley could have remedied had he attempted to ensure compliance
with defendant’s safety rules.
7
Although we need consider it for purposes of our summary disposition analysis, we note that
Schrewe’s affidavit lent support to Brayton’s opinion. Schrewe stated that he had seen “nothing
… in which to attach personal fall protection to.”
-13-
In summary, considering plaintiff’s affidavit and the deposition testimony and
documentary evidence submitted to the circuit court, plaintiff put forward sufficient evidence to
give rise to genuine issues of fact with respect to whether (1) the elevated island qualified as a
common work area, (2) fall protection was available, and (3) defendant took reasonable steps to
ensure that fall protection was used. Consequently, the circuit court improperly granted
defendant’s renewed motion for summary disposition, and we reverse and remand for further
proceedings.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Kurtis T. Wilder
/s/ Elizabeth L. Gleicher
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