TIMOTHY JONES V DAIMLERCHRYSLER CORP
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STATE OF MICHIGAN
COURT OF APPEALS
TIMOTHY JONES and CHRYSTAL JONES,
UNPUBLISHED
January 7, 2010
APPROVED FOR
PUBLICATION
April 8, 2010
9:05 a.m.
Plaintiffs-Appellants,
v
No. 285099
Macomb Circuit Court
LC No. 2007-001010-NO
DAIMLERCHRYSLER CORPORATION,
Defendant-Appellee.
Before: METER, P.J., and BORRELLO and SHAPIRO, JJ.
PER CURIAM.
In this premises liability action, plaintiffs1 appeal by right following the trial court’s grant
of defendant’s motion for summary disposition under MCR 2.116(C)(10) and dismissal of
plaintiffs’ complaint with prejudice. We affirm in part, reverse in part, and remand for further
proceedings.
I. SUMMARY OF FACTS AND PROCEEDINGS
Plaintiff was injured on May 31, 2006 when he fell through a trapdoor opening2 in a
mezzanine walkway found in defendant’s Sterling Heights plant. At the time of the accident,
plaintiff was working on a renovation project at the plant and was employed by Durr Systems
1
Because plaintiff Chrystal Jones brings a derivative loss of consortium claim, references in this
opinion to “plaintiff” refer to plaintiff Timothy Jones.
2
The trapdoor sits to the right of a staircase leading to the mezzanine walkway made of open
metal grating. The trapdoor is hinged at the edge of the grating under the railing surrounding the
stairwell so that when it is opened, the grating swings up and rests against the railing (where it
can be held with a hook), creating an open hole without barriers in on the three sides along the
walkway. Thus, by coming up the stairs and making two 90 degree turns, a person faces an open
edge of the hole with the left and far edges also open, and the lifted grating to the right, leaning
against the railing.
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(Durr) as a millwright. Defendant hired Durr to change over a multitude of conveyor
components that are used on the paint line of the assembly plant. Plaintiff testified that he was
the supervisor for the millwrights working on the project and had been working on-site for
roughly two to three weeks, between six and seven days a week. Prior to this assignment,
plaintiff had been to this plant on five or six occasions to do preliminary work for this job.
Defendant’s plant was on shutdown while Durr was completing the work, and plaintiff did not
report to an employee of defendant during his time working at the plant.
One of the conveyors that the Durr employees were working on could only be accessed
from the mezzanine. Plaintiff indicated that he was familiar with the area within defendant’s
plant where he was working, including the mezzanine area. Plaintiff testified that during his
time on this job, he had been on the mezzanine often, climbing the stairs roughly three or four
times a day prior to the incident in order to check the progress of the work being done. Plaintiff
acknowledged that he knew there were grates that could be removed in the mezzanine area
because he had seen some removed in other parts of the plant. Plaintiff was also familiar with
similar grate systems in other plants he had worked in. Plaintiff knew that the Durr employees
would need to lift or hoist some products to the mezzanine, and he stated that occasionally the
products are lifted through removed sections of the grating.
On the night of the incident, plaintiff walked up the stairs to the mezzanine in order to
distribute paychecks. According to plaintiff, Mike Perry, the ironworker foreman, walked up the
stairs behind plaintiff. Regarding the fall, plaintiff testified that he “went up the staircase and
went to my right as I got to the top of the staircase, and that’s all I remember . . . the next thing I
know, I was laying on the floor.” Plaintiff did not recall seeing anyone on the mezzanine before
his fall and he did not recall looking down. Plaintiff was wearing safety glasses and a hard hat at
the time he fell. When plaintiff awoke, he was laying on the ground. Plaintiff was told after the
fall that the “Perry boys,” a group of cousins that worked as ironworkers for Durr, may have
moved a section of grate from the floor.
One of the Perry boys, Lonnie Perry, worked as an ironworker at Durr on the date of
plaintiff’s incident. Lonnie stated that he heard plaintiff tell his cousin, Mike Perry, that a
section of the conveyor would need to be lifted through the grating. Lonnie testified:
And, Mike told us, me and Randy Perry, to go up the stairwell to see if we
could get the grating open so we could shoot a small piece of conveyor end in up
though the grating. And I looked and I seen there wasn’t . . . no safety tape or
anything such as that, so I told the steward that we needed some red tape. And, he
said he didn’t have any, but he would go look. So, then I and Randy walked up
the stairwell, identified the piece of grating where we needed to shoot the rig
through with the piece. And, it was all phosphated, all gluey, pretty sticky; didn’t
believe we could ever get it open. Randy was standing in front of me; I bent over
at the—the left edge of it; I put my pry bar in there and I got it to come open,
surprisingly, and found out it was, actually, even on hinges. And, just—I no more
than opened it, my—I was looking towards my cousin Randy, his eyes got big, I
heard the grating rattle; I looked and [plaintiff] had walked right by me, right into
the hole and all I could see was his eyes of terror going to the ground. And, it was
just that quick. [Plaintiff] had been walking and he had followed me right up the
stairwell. I didn’t realize it. And, he had a handful of checks in his hand and he
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was just getting ready to go down the conveyor to hand out checks to—to his
employees, his millwrights. And, as soon as I heard the rattle, I seen his eyes and
I seen checks flying everywhere . . . and I watched him go to the ground and hit
the gang box. He bounced off a set of torches and a gang box and laid there
unconscious.
Lonnie said that the grating was open “two tenths of a second, possibly” before plaintiff stepped
into the hole. Michaeline Cartwright, who worked as a safety coordinator for Durr from 2004 to
2006, documented that the grating had been opened “for less than ten seconds.”
Cartwright testified that on the night of the incident, she spoke to one of defendant’s
employees, Nick Juncaj, who was temporarily working as the UAW safety representative.
Juncaj testified that he filled in for the regular safety representative for five weeks, beginning on
May 19, 2006. According to Cartwright, Juncaj stated that there had been two other accidents at
the same location within the past three years. However, at his deposition, Juncaj denied knowing
of any prior accidents and he did not recall telling Cartwright of other injuries in this area.
Juncaj testified that he had worked at the Sterling Heights plant since 1991, full time since 1994.
Pat Christie, defendant’s safety supervisor, testified that the hinged sections on the mezzanine
have been used “time and again.” Christie also indicated that he had no knowledge of other
accidents with people falling through the hinged section of the mezzanine floor.
Plaintiffs originally sought relief under both premises liability, based on defendant’s
ownership of the premises, and contractor liability, under the retained control doctrine on the
theory that defendant had retained control over the renovation project. See Ormsby v Capital
Welding, Inc, 471 Mich 45, 60; 684 NW2d 320 (2004). However, plaintiffs stipulated to
dismissal of this latter claim, as well as its claim predicated on the inherently dangerous activity
doctrine, and proceeded only on the claim predicated on defendant’s possession of the premises.
Defendant filed a motion requesting summary disposition.
evidence, the trial court granted defendant’s motion, holding:
After considering the
In the instant matter, the dangerous condition was created when plaintiff’s
co-employees raised a grate on the mezzanine-level walkway, creating an
unwarned and unguarded hole through which someone could fall. The record is
devoid of any evidence suggesting defendant knew or should have known that
plaintiff’s co-employees would create such a dangerous condition.
Moreover, the record clearly established the dangerous condition existed
for less than ten seconds before plaintiff fell through the opening. There is no
evidence suggesting defendant knew of the dangerous condition in the short time
of its existence; the short time also precludes a finding that defendant could have
discovered the dangerous condition before plaintiff encountered it.
The mere fact that similar accidents may have occurred in the past does
not establish defendant had knowledge of . . . an actual dangerous condition, the
open grate, existed when plaintiff fell. To the contrary, the grate was obviously
kept closed to prevent injuries. While defendant would clearly have had
knowledge of the potential for danger from the prior accidents, defendant would
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not have knowledge that that actual dangerous condition existed or would be
permitted to exist without some sort of protection (e.g., warning tape or barricade)
when plaintiff fell. Hence, plaintiff has not shown further discovery stands a fair
chance of uncovering factual support for his position to avoid summary
disposition.
Plaintiffs now appeal, challenging the grant of summary disposition as well as the trial court’s
subsequent denial of their motion for reconsideration.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Odom v
Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). For a motion brought under MCR
2.116(C)(10), we review the pleadings, admissions, and other evidence in the light most
favorable to the nonmoving party and, if there are no genuine issues of material fact, the moving
party is entitled to judgment as a matter of law. Id. at 466-467. A trial court’s action on a
motion for reconsideration is reviewed for an abuse of discretion. Woods v SLB Prop Mgt, LLC,
277 Mich App 622, 629; 750 NW2d 228 (2008).
III. ANALYSIS
As an initial matter, we note that a subcontractor’s employee that is injured on a work site
may bring claims for both premises liability and contractor liability. See, e.g. Ghaffari v Turner
Construction Co, 473 Mich 16; 699 NW2d 687 (2005); Perkoviq v Delcor Homes-Lake Shore
Point, Ltd, 466 Mich 11; 643 NW2d 212 (2002). Therefore, plaintiffs’ concession that they had
no contractor liability claim was not automatically preclusive of a premises liability claim. To
the extent that defendant asserted to the contrary, we reject its argument.
To establish a premises liability claim, “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).
Plaintiffs first argue that the trial court erred in concluding that defendant had not created
the dangerous condition and could not be held liable for plaintiff’s injuries. Plaintiffs argue that
defendant created the danger by placing the trapdoor in the mezzanine walkway. Defendant
argues that plaintiff’s coworkers created the condition when the trapdoor was opened and no
barricade was placed around the opening. We find that there are two separate potential
dangerous conditions for which defendant could have premises liability. Although the trial court
appears to have based its ruling on the conclusion that the dangerous condition was the open
trapdoor, at oral argument, counsel for plaintiffs indicated that the dangerous condition was not
the open trapdoor, per se, but rather its location in the walkway and where it was hinged.
Because these are distinct claims, see Bluemer v Saginaw Central Oil & Gas Service, Inc, 356
Mich 399; 97 NW2d 90 (1959), we address them separately.
A. THE OPEN TRAPDOOR
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Looking first at defendant’s liability for the open trapdoor as the dangerous condition, we
conclude that the trial court properly granted summary disposition on this issue.
“It is a general proposition that liability for an injury due to defective premises ordinarily
depends upon power to prevent the injury . . . .” Nezworski v Mazanec, 301 Mich 43, 56; 2
NW2d 912 (1942) (quotations and citation omitted). In this case, there is undisputed evidence
that one of plaintiff’s coworkers opened the trapdoor moments before plaintiff fell. Defendant
did not open the section and leave it in a dangerous condition. Rather, the open trapdoor was a
construction site hazardous condition that was created by one of plaintiff’s co-employees. We
believe that defendant had no duty to protect plaintiff from this condition based on Young v
Delcor Assoc, 477 Mich 931; 723 NW2d 459 (2006).
In Young v Delcor Assoc, unpublished opinion per curiam of the Court of Appeals, issued
June 27, 2006 (Docket No. 266491), rev’d 477 Mich 931 (2006), the plaintiff was a
subcontractor’s employee who stepped on a wall panel that had been laid down over one-third of
a second-floor stairwell opening that was neither covered or barricaded. The plaintiff knew that
there was a stairwell opening under the wall, but thought the wall panel was a solid section. The
wall was in two sections which separated when plaintiff stepped on the panel, and the plaintiff
fell through both the second and first floor stairwell openings over 20 feet into the basement. Id.
at 2. The trial court concluded that there was an outstanding fact question as to whether the
defendant had possession and control over the premises at the time of plaintiff’s injuries “a
necessary element of both claims.” Id. at 11. However, it concluded that the premises liability
claim failed as a matter of law because “either the opening itself or the opening partially covered
by the wall panel” was open and obvious or “presented an unexpected hazard for which
[defendant] did not have notice as even plaintiff did not realize that the wall panel would not
support his weight.” Id. The plaintiff appealed the summary disposition on both the premises
liability and contractor liability claims. The Court of Appeals panel affirmed summary
disposition on the contractor liability claim, but reversed on the premises liability claim,
concluding:
[T]he allegedly dangerous condition for which plaintiff was attempting to hold
[defendant] liable for as the premises possessor, was the stairwell sans stairs.
That is the allegedly unreasonable risk of harm that [defendant] should have
known existed on the property, not the jointed wall that plaintiff’s coworker
placed partially over the opening just before plaintiff fell. And, we agree with the
trial court that the open, unbarricaded stairwell was an open and obvious
condition. . . . However, the issue is whether there is evidence that creates a
genuine issue of material fact that [defendant] should have anticipated harm
despite plaintiff’s knowledge of the stairwell sans stairs, i.e., if special aspects of
the condition made the open and obvious risk unreasonably dangerous. We
conclude that [defendant] should have anticipated such harm . . . . [Id. at 17-19.]
It concluded that there was a genuine issue of material fact “regarding whether there were special
aspects of the stairwell that gave rise to a uniquely high likelihood of harm or severity if
confronted and, therefore, [the defendant] had a duty to undertake reasonable precautions to
protect invitees, like plaintiff, from that risk.” Id. at 22-23.
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Our Supreme Court unanimously peremptorily reversed the panel and reinstated the trial
court’s grant of summary disposition on the premises liability claim. Young, 477 Mich at 931.
Citing Perkoviq, 466 Mich 11, it held:
The defendant premises owner did not have a duty to protect the plaintiff, an
employee of an independent contractor hired to perform construction work on the
owner’s premises, from the construction site hazardous condition that contributed
to the plaintiff’s injury. Moreover, the temporary hazardous condition was
created by the independent contractor, the defendant premises owner had no
notice of the condition, and the condition was not unreasonably dangerous.
[Young, 477 Mich at 931.]
Here, defendant had no notice that the grate was being opened; none of its employees were
present and it was uncontested that the trapdoor had been open at most 10 seconds before the
accident occurred.3 See Moore v Traverse City Masonic Bldg Assoc, 324 Mich 507, 520; 37
NW2d 457 (1949) (Holding that there was no evidence “that the door in question was open a
sufficient length of time before the accident to charge defendant with knowledge that the door
was open.”). Additionally, it was an independent contractor that created the temporary
hazardous condition. Because Durr employees opened the trapdoor in order to get equipment
through, the open trapdoor was a “construction site hazardous condition that contributed to the
plaintiff’s injury.” We find Young controlling on this point, and hold that defendant had no duty
to protect plaintiff from the open trapdoor. Young, 477 Mich at 931.
Plaintiffs argue that Muth v W P Lahey’s, Inc, 338 Mich 513; 61 NW2d 619 (1953)
provides that liability may be imposed on defendant based on Durr employees’ actions. We
disagree. In Muth, a customer who went into a store to buy shoes fell through a trapdoor that
was left open by a shoe department employee. Id. at 516. At the time, the shoe department was
operated by another company pursuant to a lease. Id. Our Supreme Court upheld the imposition
of liability against the store owner, even though it was the shoe department company’s employee
who had left the door open. Id. at 519-520. In Bluemer, 356 Mich at 409-411, however, our
Supreme Court distinguished Muth, and indicated that the imposition of liability of the store
owner was not based simply on the fact that the defendant owned the store, but based on the
store owner’s essentially complete control over the shoe department company’s business
activities, including employee hiring. Id. at 409-410. By contrast, where a lessor does not
conduct business or direct its tenant’s business, liability is imposed on the lessee, not the
property owner. Id. at 411-412. See also Brown v Standard Oil Co, 309 Mich 101; 14 NW2d
797 (1944) (Holding that the owner of a gas station was not liable for the injuries to an employee
of the lessee gas station because the lease did not reserve to the owner the right to exercise
3
Plaintiffs’ allegations regarding additional accidents do not provide notice as to the open
trapdoor; rather, they are more appropriately applied to whether defendant had notice of whether
the location of the trapdoor or how it was hinged was a dangerous condition. We note, however,
that plaintiffs’ allegations of notice that are premised on an accident that occurred in 1988, prior
to defendant’s ownership of the facility, cannot be sustained absent some evidence that defendant
acquired knowledge of that accident.
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control over the business or operations of the lessee on the premises). Here, defendant had
turned over control of the construction site to Durr and there was no evidence that defendant was
exercising control over the construction site. Accordingly, the negligent acts of Durr employees
in opening the trapdoor without proper barricading could not be imputed to defendant.
B. THE PRESENCE, LOCATION AND DESIGN OF THE TRAPDOOR
Alternatively, plaintiffs argue that defendant was liable because it created a dangerous
condition by leaving4 the trapdoor in a place that invitees were free to use, by leaving the
trapdoor hinged in a manner that left a completely unguarded hole in the grating when open, and
in failing to give any warning regarding its existence or to provide barricades or other safeguards
when the trapdoor was open. We conclude that this claim is distinct from the dangerous
condition of the open trapdoor and that plaintiffs have shown an outstanding question of fact on
this issue, which precludes summary disposition.
In Bluemer, 356 Mich at 410-416, our Supreme Court concluded that the liability of a
property owner for the dangerousness of a trapdoor based on “its use, location, and other
circumstances” was a question separate and apart from its liability based on the lessee’s
employee’s negligence in leaving the trapdoor open, and that liability could be imposed for the
former. Bluemer cites two cases, which we find similar to the instant case:
In Dahl v Glover, 344 Mich 639[; 75 NW2d 11 (1956)], which was an
action for damages resulting from plaintiff falling into a manhole in a sidewalk in
front of defendants’ premises, the proofs indicated that plaintiff stepped on the
cover of the manhole, and that the cover tilted upward and rolled away.
Plaintiff’s fall resulted. It was the theory of the plaintiff that the cover was
defective. The trial court in submitting the case to the jury referred to different
types of nuisances, including such resulting by reason of circumstances and
surroundings, leaving it to the jury to say whether under the facts in the case and
inferences to be drawn therefrom the manhole and manhole cover constituted a
menace dangerous to the public and therefore a nuisance. The charge as given
was approved by this Court and judgment for the plaintiff was affirmed.
In Brown v Nichols, 337 Mich 684[; 60 NW2d 907 (1953)], plaintiff was
injured as the result of being struck by a door to an establishment owned and
operated by defendants, which door was so constructed that it swung out over a
public sidewalk. The trial court did not submit the case to the jury on the theory
of a nuisance in fact because of the consequences that might result from the use of
a door so constructed and operated. In reversing the case and remanding it for a
new trial, it was held:
4
The evidence indicated that the trapdoor was not designed or placed by defendant, but rather
existed prior to defendant’s purchase of the building.
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“The question as to what constitutes a nuisance is one of law for
the court, but it is for the jury to decide whether a particular act or
structure or use of property, which is not a nuisance per se, is a
nuisance in fact and whether an alleged nuisance is the cause of the
losses or injuries complained of and to what extent such losses or
injuries are attributable to the nuisance.”
[Id. at 413-414.]
Although these cases describe the issue as a nuisance claim, we do not believe that plaintiffs
were required to allege a nuisance to bring forward its claim that the location of the trapdoor and
its design (i.e. where the hinges were placed) created a dangerous condition. Rather, we believe
that these claims fall under premises liability. See Michigan Law and Practice, § 1, p 97 (Noting
that “several Michigan decisions use the term “nuisance” liability to refer to what is essentially
premises liability.”); see also Kilts v Bd of Supervisors of Kent Co, 162 Mich 646, 651; 127 NW
821 (1910) (Defining a nuisance as “involv[ing], not only a defect, but threatening or impending
danger to the public” and concluding that the plaintiffs’ claims for faulty tower construction
sounded in negligence, not nuisance).
Because we read Bluemer to be using nuisance to refer to a premises liability claim,
rather than a true nuisance claim, we conclude that whether the use or location of a trapdoor
makes it a dangerous condition is a fact question for the jury. Bluemer, 356 Mich at 413-416.
Furthermore, given the evidence that none of Durr’s employees were aware that the grating was
hinged and the photographs that indicate the hinges are hidden, we conclude that this condition is
not open and obvious. Accordingly, the trial court erred in granting summary disposition on
plaintiffs’ premises liability claim as to the location of the trapdoor and how it was hinged.
Therefore, we reverse the trial court’s grant of summary disposition, as to the question of
trapdoor placement and hinging only, and remand for trial.5
IV. CONCLUSION
We affirm the trial court’s grant of summary disposition as to the open trapdoor, reverse
the grant of summary disposition as to the location of the trapdoor and the placement of its
hinges, and remand for further proceedings consistent with this opinion. We do no retain
jurisdiction. No costs, neither party having fully prevailed.
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro
5
We take no position as to whether the placement of the trapdoor, or its design (i.e. where the
hinges were placed) was a negligent or dangerous condition. We are only holding that a question
of fact exists on this issue. Additionally, because we find an error in the granting of summary
disposition, we need not consider the question of whether the trial court erred in denying
plaintiff’s motion for reconsideration.
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