RICHARD SHEPARD V M & B CONSTRUCTION LLC
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STATE OF MICHIGAN
COURT OF APPEALS
RICHARD SHEPARD,
UNPUBLISHED
September 19, 2006
Plaintiff-Appellant/Cross-Appellee,
v
No. 261484
Oakland Circuit Court
LC No. 02-041970-NO
M & B CONSTRUCTION, L.L.C.,
Defendant-Appellee/CrossAppellant.
Before: Murray, P.J., and Smolenski and Servitto, JJ.
PER CURIAM.
Plaintiff appeals as of right from a judgment of no cause for action in favor of defendant
after a jury trial. Defendant cross-appeals the trial court’s orders denying of its motions for
summary disposition and motion for a directed verdict. We affirm the orders denying
defendant’s motions for summary disposition and for a directed verdict. However, we reverse
the judgment of no cause for action and remand for a new trial.
Plaintiff sued defendant to recover damages for injuries that he suffered when he fell
from the roof of a building on which he was working. Defendant, which was the general
contractor for the construction of the building, had hired plaintiff’s employer to provide
carpentry work on the project. On appeal, plaintiff argues that the trial court’s reinstruction of
the jury erroneously defined a common work area. We agree.
This Court reviews de novo, as a question of law, whether jury instructions adequately
and fairly state the applicable law and theories of the parties. People v Gillis, 474 Mich 105,
113; 712 NW2d 419 (2006). In reviewing this issue, the instructions must be evaluated as a
whole, rather than extracted piecemeal, to establish error. Case v Consumers Power Co, 463
Mich 1, 6; 615 NW2d 17 (2000). “The instructions should include all the elements of the
plaintiff's claims and should not omit material issues, defenses, or theories if the evidence
supports them.” Id. “Even if somewhat imperfect, instructions do not create error requiring
reversal if, on balance, the theories of the parties and the applicable law are adequately and fairly
presented to the jury.” Id. Reversal is not required unless the failure to do so would be
inconsistent with substantial justice. MCR 2.613(A); Case, supra at 6.
Generally, a general contractor is not liable for the negligence of an independent
subcontractor and its employees. Ormbsy v Capital Welding, Inc, 471 Mich 45, 48; 684 NW2d
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320 (2004). An exception to this rule is the common work area doctrine as enunciated in Funk v
General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974).1 Id. Pursuant to this exception, for
a general contractor to be liable, a plaintiff must show that “(1) the defendant, either the property
owner or 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 a common work area.”
Id. at 54-55. Regarding the fourth element, “[i]t 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 v PMG
Building, Inc, 227 Mich App 1, 5-6; 574 NW2d 691 (1997).
Here, after the trial court instructed the jury on the elements of the common work area
doctrine, the trial court defined the fourth element, a common work area, as follows: “Now,
when I use the word or term common work area, I mean an area where a significant number of
employees of multiple subcontractors may be exposed to risk of danger. It’s a situation where a
number of subcontractors were all subject to the same risk or hazard.” This language was, in
part, a quote from footnote nine of Ormsby. Footnote nine of Ormsby provides, in relevant part:
“This Court has previously suggested that the Court’s use of the phrase “common
work area” in Funk, supra, suggests that the Court desired to limit the scope of a
general contractor’s supervisory duties and liability. We thus read the common
work area formulation as an effort to distinguish 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.” [Emphasis added.] [Ormsby, supra
at 57 n 9, quoting Hughes, supra at 8.]
During its deliberations, the jury requested clarification of whether “different
subcontractors need to be [at the site] at the same time . . . or [whether] more than one
subcontractor [must] be [at the site] by the time the project is completed” for the fourth element
of the common work doctrine to be satisfied. In response, the trial court gave the following
instruction: “The common work area is a situation where employees of a . . . number of
subcontractors were all subject to the same risk or hazard. A high degree of risk if [sic] a
significant number of workers of multiple subcontractors must exist when the plaintiff is
injured.” (Emphasis added.)2 This instruction, in part, quoted footnote 12 of Ormsby. Footnote
12 of Ormsby provides: “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, supra at 5960 n 12.
1
Overruled in part on other grounds by Hardy v Monsanto Enviro-Chem Sys, Inc, 414 Mich 29;
323 NW2d 270 (1982).
2
Although the trial court indicated this instruction was quoted from footnote 11 in Ormsby, the
instruction actually quoted footnote 12.
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The trial court’s instruction did not directly address the issue raised by the jury question.
Specifically, although the trial court added the words “of multiple subcontractors” to the
language quoted in Ormsby, the instruction did not state whether different subcontractors must
only eventually work in the area or must be working in the area at the time of plaintiff’s injury to
satisfy the fourth element of the common work area doctrine.
We note that it does not appear that Ormsby addressed this issue. Rather, Ormsby held
that the retained control doctrine3 is subordinate to the common work area doctrine. Ormsby,
supra at 61. In arriving at this conclusion, the Ormsby Court addressed the fourth element of the
common work area doctrine in footnotes 9 and 12 as noted above, which merely stand for the
proposition that the same high degree of risk must be present to a significant number of
employees of different subcontractors when a plaintiff is injured in order to impose liability on a
general contractor. Ormsby, supra at 57 n 9, 59 n 12. Therefore, given that Ormsby did not
directly address the issue at hand, the common work area rule that “merely requires that
employees of two or more subcontractors eventually work in the area” remains applicable.
Hughes, supra at 6.
We note that the trial court’s instruction did not indicate that employees from multiple
subcontractors must be exposed to the same risk at the same time for defendant to be held liable
for plaintiff’s injuries. However, the court’s instruction failed to instruct the jury on the
applicable law. Specifically, at trial, the court initially instructed the jury regarding the four
elements of the common work area doctrine4 and then proceeded to define the term common
work area as “an area where a significant number of employees of multiple subcontractors may
be exposed to risk of danger. It’s a situation where a number of subcontractors were all subject
to the same risk or hazard.” When reinstructing the jury, the trial court defined common work
area as “a situation where employees of a . . . number of subcontractors were all subject to the
same risk or hazard. A high degree of risk if [sic] a significant number of workers of multiple
subcontractors must exist when the plaintiff is injured.”
On its face, the reinstruction was nonresponsive to the jury’s question. In fact, it is
difficult to discern from the reinstruction what the trial court meant by its reference to “a
significant number of workers of multiple subcontractors . . . .” In contrast to the reinstruction,
footnote 12 of Ormsby, on which the trial court based the reinstruction, only stated that “[t]he
high degree of risk to a significant number of workers must exist when the plaintiff is injured”
3
The retained control doctrine provides that liability may be imposed upon an owner of a project
who retains control of the work in such a way that he or she has “stepped into the shoes of the
general contractor.” Ormsby, supra at 54.
4
Regarding the elements of the common work area doctrine, the trial court stated:
And to establish the liability of a general contractor the plaintiff must prove, first
of all, that the defendant contractor failed to take reasonably – reasonable steps
within its supervisory and coordinating authority to guard against readily
observable dangers . . . that created a high degree of risk to a significant number
of workmen . . . in a common work area.
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and did not address whether multiple contractors must be at the site at the same time a plaintiff is
injured. Ormsby, supra at 59 n 12. Also, although not part of the reinstruction, it is worth noting
that in responding to defendant’s objection, the trial court stated, “there’s no question that
various subcontractors have to be on the job at the same time and they have to be subject to the
same risk.” Thus, when read as a whole, the trial court’s reinstruction failed to adequately and
fairly state the law in response to the jury’s question. Case, supra at 6.
Further, even though plaintiff was required to satisfy each element of the common work
area doctrine to prevail, Ormsby, supra at 59 n 11, it is impossible to know which element or
elements the jury found dispositive in reaching its verdict. Thus, it is possible that the jury could
have found that plaintiff only failed to satisfy the fourth element, on which it was erroneously
instructed. “While not all instructional error requires reversal, reversal is mandated where the
result might well have been different without the error.” Body Rustproofing, Inc v Michigan Bell
Telephone Co, 149 Mich App 385, 392; 385 NW2d 797 (1986). Therefore, because permitting
the erroneous instruction to stand would be inconsistent with substantial justice, we must reverse
and remand for a new trial. Case, supra at 6. Because of our resolution of this issue, we need
not address plaintiff’s remaining claim of error.
On cross appeal, defendant argues that the trial court erroneously denied its motions for
summary disposition and motion for a directed verdict. We disagree. We review de novo an
appeal from an order granting summary disposition pursuant to MCR 2.116(C)(10); Dressel v
Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). A motion for summary disposition
pursuant to MCR 2.116(C)(10) should be granted when the moving party is entitled to judgment
as a matter of law because there is no genuine issue of material fact. Maiden v Rozwood, 461
Mich 109, 120; 597 NW2d 817 (1999). A genuine issue of material fact exists when reasonable
minds could differ after drawing reasonable inferences from the record. West v General Motors
Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In reviewing this issue, the Court must
consider the pleadings, affidavits, depositions, admissions, and other documentary evidence and
construe them in light most favorable to the nonmoving party. Corley v Detroit Bd of Ed, 470
Mich 274, 278; 681 NW2d 342 (2004).
We also review de novo a trial court’s decision on a motion for a directed verdict.
Sniecinski v BCBSM, 469 Mich 124, 131; 666 NW2d 186 (2003). “A directed verdict is
appropriate only when no factual question exists on which reasonable jurors could differ.”
Zantel Marketing Agency v Whitesell Corp, 265 Mich App 559, 568; 696 NW2d 735 (2005).
The Court “reviews all the evidence presented up to the time of the directed verdict motion,
considers that evidence in a light most favorable to the nonmoving party, and determines
whether a question of fact existed.” Id. Any conflict of evidence is resolved in the nonmoving
party’s favor. Elezovic v Ford Motor Co, 472 Mich 408, 418; 697 NW2d 851 (2005).
On appeal, defendant argues that the trial court should have granted its motions for
summary disposition and motion for a directed verdict because plaintiff failed to show that there
was a high degree of risk to a significant number of workers in a common work area. We
disagree. At the outset, we note that it is not clear how many workers constitute “a significant
number of workmen.” Ormsby, supra at 54. While Ormsby explained that a significant number
of workmen is certainly more than one worker, Id. at 59 n 12, Hughes found the presence of four
workers did not constitute a significant number of workmen as a matter of law, Hughes, supra at
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7-8. Thus, plaintiff must show minimally that more than four workers were in a common work
area to survive defendant’s motion on this issue.
Here, plaintiff explained that, on the morning of his fall, he was one of eight or nine
workers on the roof – four, including himself in his section and four or five in another section.
Further, plaintiff noted that at the time of his fall, his foreman, Tom Maddock, had just climbed
to the roof to tell plaintiff and the other workers to get off of the roof because of the weather
conditions. Thus, plaintiff has shown that at least eight to ten men were on or around the roof
when he fell. Moreover, Jay Parks, defendant’s president, admitted that he was aware that
Conquest’s employees were working on the roof without fall protection even though fall
protection was required for this type of work. Therefore, viewing this evidence in the light most
favorable to plaintiff, a genuine issue of material fact existed regarding whether plaintiff had
shown that a high degree of risk to a significant number of workmen existed at the time of his
injury. Ormsby, supra at 59 n 12.
Regarding whether plaintiff’s injury occurred in a common work area, we reiterate that
“the common work area rule merely requires that employees of two or more subcontractors
eventually work in the area.” Hughes, supra at 5-6. Here, Dennis Warren, a supervisor for
defendant, explained that although no other subcontractors worked on the roof simultaneously
with the carpenters, the roofers would work on the roof after the carpenters were finished.
Therefore, because there was evidence that at least one other subcontractor besides Conquest
would eventually work on the roof, there is at least a genuine issue of material fact concerning
whether plaintiff was injured in a common work area. Therefore, the trial court did not err when
it determined that summary disposition and a directed verdict on this basis was not warranted.
We affirm the trial court’s denial of defendant’s motions for summary disposition and for
a directed verdict. However, we reverse the judgment for no cause of action and remand for a
new trial consistent with this opinion. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Michael R. Smolenski
/s/ Deborah A. Servitto
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