FRANK DEBEUL V BARTON MALOW COMPANY
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STATE OF MICHIGAN
COURT OF APPEALS
FRANK DEBEUL,
UNPUBLISHED
February 15, 2011
Plaintiff-Appellant,
V
No. 296094
Oakland Circuit Court
LC No. 2008-094349-NO
BARTON MALOW COMPANY,
Defendant-Appellee.
Before: CAVANAGH, P.J., and STEPHENS and RONAYNE KRAUSE, JJ.
PER CURIAM.
In this action involving an injury at a construction site, plaintiff, an employee of a
plumbing contractor, appeals as of right from the trial court’s order granting summary
disposition to defendant, the contract manager of the project, pursuant to MCR 2.116(C)(10).
Relying on Fultz v Union-Commerce Assoc, 470 Mich 460; 683 NW2d 587 (2004), the trial
court concluded that defendant was entitled to summary disposition because, although the hazard
that caused plaintiff’s injury was within the scope of defendant’s contractual obligations to
Southfield Public Schools, “defendant did not owe plaintiff a duty that was separate and distinct
from its contractual obligation as construction manager.” Because we conclude that the trial
court erred by failing to consider defendant’s potential liability under the common-work-area
doctrine applicable to general contractors, we reverse and remand for further proceedings.
Defendant was the manager of a construction project at Southfield High School pursuant
to a contract with Southfield Public Schools. Plaintiff was employed by Oakland Plumbing, a
plumbing contractor for the project. Plaintiff was injured when he tripped on “rebar” that was
protruding through concrete in an area where he was unloading and transporting pipe from a
truck. Plaintiff filed this negligence action against defendant, asserting that defendant was liable
under the common-work-area doctrine, which provides an exception to the general rule that a
general contractor is not liable to employees of subcontractors who are injured at a construction
site. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that it was
not subject to liability under the common-work-area doctrine because it was only a contract
manager, not a general contractor, and that it did not owe plaintiff any duty of care separate and
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distinct from its contractual duties to Southfield Public Schools. The trial court agreed and
granted defendant’s motion.1
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Meridian Twp v Ingham Co Clerk, 285 Mich App 581, 586; 777 NW2d 452 (2009). A motion
under MCR 2.116(C)(10) tests the factual support for a claim. Driver v Naini, 287 Mich App
339, 344; 788 NW2d 848 (2010). The court must consider any admissible evidence submitted
by the parties in a light most favorable to the nonmoving party. MCR 2.116(G)(6); Meridian
Twp, 285 Mich App at 586. Summary disposition should be granted if the evidence fails to
establish a genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. Id.
We agree with plaintiff that the trial court erred by analyzing defendant’s potential
liability under Fultz, without considering the common-work-area doctrine. The common-workarea doctrine provides a basis for defendant’s liability to plaintiff, “separate and distinct” from its
duties to Southfield Public Schools under its contract with Southfield Public Schools. As
explained in Ghaffari v Turner Constr Co, 473 Mich 16, 20; 699 NW2d 687 (2005):
At common law, property owners and general contractors generally could
not be held liable for the negligence of independent subcontractors and their
employees. However, in Funk v Gen Motors Corp, 392 Mich 91, 104; 220 NW2d
641 (1974), this Court departed from this traditional framework and set forth an
exception to the general rule of nonliability in cases involving construction
projects:
“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.
[Emphasis added.]”
“Essentially, the rationale behind [the common-work-area] 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.” Latham v Barton Malow Co, 480 Mich 105, 112; 746 NW2d 868 (2008).
We disagree with defendant’s argument that its status as “contract manager,” as opposed
to being a “general contractor,” precludes liability under the common-work-area doctrine. The
premise for imposing liability on a contractor under the common-work-area doctrine is the
1
Defendant alternatively argued that even if it were subject to general contractor liability under
the common-work-area doctrine, plaintiff was unable to establish a genuine issue of material fact
concerning its liability under that doctrine. In light of its decision, the trial court did not reach
this question.
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contractor’s supervisory and coordinating authority over the worksite. Ghaffari, 473 Mich at 20;
Latham, 480 Mich at 109. As explained in Ghaffari, 473 Mich at 20-21, quoting Funk v Gen
Motors Corp, 392 Mich 91, 104; 220 NW2d 641 (1974):
“Placing ultimate responsibility on the general contractor for job safety in
common work areas will, from a practical, economic standpoint, render it more
likely that the various subcontractors being supervised by the general contractor
will implement or that the general contractor will himself implement the
necessary precautions and provide the necessary safety equipment in those areas.
[A]s a practical matter 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. . . . [I]t must be recognized that
even if subcontractors and supervisory employees are aware of safety violations
they often are unable to rectify the situation themselves and are in too poor an
economic position to compel their superiors to do so. [Id. (internal citation and
quotation marks omitted).]”
In this case, defendant’s contract with Southfield Public Schools provided it with
responsibility for coordinating the activities and responsibilities of the various other contractors
on the project, including the sequence of construction and assignment of space in areas where the
other contractors are performing work. Defendant was also responsible for reviewing the various
other contractors’ safety programs and coordinating the safety programs with those of the other
contractors. In addition, defendant was required to regularly monitor the work of the other
contractors on the project. In sum, defendant’s contract provided it with the supervisory and
coordinating authority of a general contractor. Under these circumstances, defendant’s title as
“contract manager,” as opposed to “general contractor,” is a distinction without a difference for
purposes of the common-work-area doctrine. See Ghaffari, 473 Mich at 19 n 1 (under the terms
of the defendant’s contract with the premises owner, the defendant’s title as a “construction
manager,” and not “general contractor,” was a distinction without a difference for purposes of
the common-work-area doctrine). Accordingly, the trial court erred by failing to consider
defendant’s potential liability under the common-work-area doctrine.
The elements of a claim under the common-work-area doctrine are: (1) 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 (4) in a common work area. Latham, 480 Mich at 109.
Defendant argues that, because plaintiff was the only worker at the site of the accident
when the injury occurred, relief was precluded. However, in Hughes v PMG Building, Inc, 227
Mich App 1, 6; 574 NW2d 61 (1998), this Court explained that “[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.” The Court
held that the third prong of the doctrine was not satisfied where four workers were exposed to the
alleged risk. Id. at 7. More recently, in Alderman v JC Development Communities, LLC, 486
Mich 906; 780 NW2d 840 (2010), the court held that six workers were not significant enough for
the application of the common-work area-doctrine. In this case, however, defendant’s
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construction supervisor acknowledged that 45 workers were on the job site on the day the
plaintiff was injured, albeit not at the time he fell. Given that the rebar was near an entry point to
the jobsite, it is reasonable infer that a significant number of those 45 workers were exposed to
risk.
As stated above, the risk must also be readily observable and avoidable. Plaintiff and
defendant’s construction supervisor both provided testimony that the rebar was readily
observable. The parties have a dispute regarding the condition of the rebar at the time of the
injury. Both sides agree that it was bent over. Both sides agree that the bending the rebar is
designed to minimize the risk. The construction manager testified that caution tape, capping and
bending were available means for minimizing risk but did not state that all of those measures
needed to be employed to render the site reasonably safe, nor did he give unequivocal statements
regarding which of those measures were utilized. Plaintiff argues that reasonable efforts to avoid
the risk would include taping and capping. Plaintiff has offered the Department of Consumer
and Industry Services Director’s Office Construction Safety Standards and OSHA website
excerpts regarding the kind of guarding recommended to avoid injury from rebar and work
progress notes addressing the need to replace any missing rebar caps. Thus, there is a is a
material question of fact related to whether, on the day at issue, the rebar was capped or marked
with caution tape and whether all these measures were necessary to meet the standard of care for
a common work area.
The analytical framework for determining whether there was a high degree of risk does
not focus solely on the injury sustained by this plaintiff. In Funk, the case from which this
theory of liability flows, the Court addressed the need to protect from aggravated injury. Thus,
the focus is on the severity of potential harms to which workers are exposed, as opposed to the
probability of an injury occurring. The case law on this issue is sparse and primarily
unpublished. In Pavia v Ellis-Don Michigan, Inc, unpublished per curiam opinion of the Court
of Appeals, issued November 27, 2001 (Docket No. 224327), the court found that a plaintiff who
was faced with numerous beams on the ground in a common work area was not exposed to a
high degree of risk. However, the only potential risk presented to that panel was a trip or fall. In
this case, plaintiff has presented excerpts from governmental websites noting the danger of
impalement on rebar. Defendant urges that the warning in those websites apply only when one
falls from a substantial height. The website does not contain such a limitation. Further, this
Court believes that the analysis should be on the instrumentality of the rebar, not the height of
the potential fall. The rebar appears to be a substantial metal object with appreciable girth.
While it is certain that falling onto it from a great height above the floor creates a substantial
risk, so does tripping on such an object from any height as it brings a danger of the object
protruding through a shoe, a knee or an arm and causing great damage to muscles, tendons, and
nerves. The only evidence on the issue of high risk of harm was presented by plaintiff. The
defense argued that the risk was minimal from a trip. However, they offered no contrary
bulletins, expert testimony or other competent evidence to rebut the governmental warning.
For the reasons discussed above, plaintiff presented sufficient evidence to create genuine
issues of material fact relating to each of the elements of a common-work-area cause of action.
Consequently, the trial court erred in granting defendant’s motion for summary disposition
pursuant to MCR 2.116(C)(10).
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Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens
/s/ Amy Ronayne Krause
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