ROBERT F DESHAMBO V CHARLES W ANDERSON
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 23, 2004
ROBERT F. DESHAMBO,
Plaintiff-Appellee,
and
Nos. 122939-122940
JENNIFER M. GRANHOLM, Attorney General
of the State of Michigan, and MICHIGAN
DEPARTMENT OF COMMUNITY HEALTH,
Intervening Plaintiff-Appellee,
v
NORMAN R. NIELSEN and PAULINE NIELSEN,
Defendants-Appellants,
and
CHARLES W. ANDERSON,
Defendant.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
In
this
case,
we
consider
whether
the
inherently
dangerous activity doctrine has been properly extended to
impose liability on landowners for injuries to employees of
independent contractors performing dangerous work.
that
the
doctrine,
Court
of
contrary
Appeals
to
its
has
improperly
original
We hold
extended
purpose,
to
the
include
injuries to those involved in the performance of dangerous
work.
The purpose of the doctrine is to protect innocent
third
parties
injured
dangerous undertaking.
as
a
result
of
an
inherently
Because plaintiff was an employee
of an independent contractor rather than a third party, the
doctrine does not apply in this case.
We thus reverse the
judgment of the Court of Appeals.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
Defendants Norman and Pauline Nielsen1 own and reside
on a 130-acre farm in Leelanau County, Michigan.
is
used
primarily
orchard.
farm
corn
and
operate
a
cherry
A neighbor manages the cherry tree operation, and
defendants
trees.
to
The land
are
not
involved
in
pruning
or
cutting
the
Defendants hired an independent contractor, Charles
Anderson, to fell and delimb small poplar trees and to
clean up the tops of trees that a previous logger had left
on the property.
Anderson, an experienced timber cutter,
1
Plaintiff voluntarily dismissed his claims against
defendant Charles W. Anderson.
Because Anderson is not a
party to this appeal, the term “defendants” refers only to
the Nielsens.
2
had previously performed woodcutting for defendants.
Under
the arrangement between defendants and Anderson, Anderson
would keep the tree tops for firewood and pay defendants
for the poplar that he cut.
The parties did not discuss
how the felling and delimbing was to be performed.
Anderson hired plaintiff Robert DeShambo to help him
with
the
work
on
defendants’
property.
On
plaintiff’s
first day of work, he was delimbing trees when he heard
someone yelling.
Plaintiff turned around and saw a tree
falling toward him as Anderson felled it.
The tree hit
plaintiff on the shoulder and then struck some logs on the
ground, causing one log to spin, strike him in the back,
and pin him between the log and the fallen tree.
The
incident has left plaintiff paralyzed.
Plaintiff filed a negligence action against defendants
and Anderson, but subsequently dismissed his claims against
Anderson.2
were
liable
Plaintiff alleged, inter alia, that defendants
for
Anderson’s
negligence
because
cutting was an inherently dangerous activity.
timber
Defendants
moved for summary disposition, arguing that plaintiff could
not establish liability under any recognized exception to
2
The state of Michigan also intervened to recover
funds paid through Medicaid for plaintiff’s medical
treatment.
3
the general rule precluding the liability of a landowner
for
injuries
that
an
independent
contractor
negligently
causes.
The
trial
defendants,
dangerous
court
ruling
that
activity
sophisticated
granted
logging
and
landowners
whether
that
a
had
previously
removals
on
hired
their
not
an
defendants
for
inherently
were
of
not
the
risks
The Court of Appeals reversed,
of
fact
reasonably
inherent in logging.3
disposition
knowledgeable
question
defendants
was
that
inherent in cutting timber.
concluding
summary
existed
anticipated
regarding
the
risks
The Court reasoned that defendants
logging
property
companies
and
that
to
conduct
defendant
Nielsen had admitted that logging was risky.
tree
Norman
The Court
further stated that because plaintiff presented evidence of
the
hazardous
elements
of
logging,
the
determination
whether logging is inherently dangerous is a jury question.
We
appeal,
granted
directing
‘inherently
defendants’
the
dangerous
parties
application
to
activity’
for
address
doctrine
leave
to
“whether
the
has
been
appropriately extended beyond its original application to
3
Unpublished opinion per curiam, issued October 22,
2002 (Docket Nos. 233853, 233854).
4
only third parties to extend liability to landowners and
general
contractors
for
injuries
to
employees
of
independent contractors doing dangerous work.”4
II. STANDARD OF REVIEW
Whether the “inherently dangerous activity” doctrine
has been properly extended to include injuries to employees
of independent contractors who are injured while performing
dangerous work is a question of law that this Court reviews
de
novo.
Likewise,
we
review
de
novo
a
decision on a summary disposition motion.
lower
court’s
Quality Products
& Concepts Co v Nagel Precision, Inc, 469 Mich 362, 364;
666 NW2d 251 (2003).
III. ANALYSIS
It has been long established in Michigan that a person
who
hires
an
independent
injuries
that
the
Superior
Iron
Co
contractor
contractor
v
Erickson,
is
not
negligently
39
Mich
liable
causes.
492,
DeForrest v Wright, 2 Mich 368, 370 (1852).
496
for
Lake
(1878);
Over time,
exceptions to this general rule have developed, including
4
469 Mich 947 (2003).
We ordered that this case be
submitted together with Ormsby v Capital Welding, Inc, 471
Mich ___ ; ___ NW2d ___ (2004), which involves the
relationship between the “common work area” and “retained
control” doctrines and the effect of those doctrines on the
general rule of nonliability for owners and independent
contractors.
5
the “inherently dangerous activity” doctrine.
The class of
persons
undergone
protected
under
the
doctrine
has
a
transformation since the doctrine’s inception.
A. Application of the Inherently Dangerous Activity
Doctrine to Third Parties
Early cases giving rise to the inherently dangerous
activity
doctrine
third parties.
limited
the
exception
to
injuries
to
In Rogers v Parker, 159 Mich 278; 123 NW
1109 (1909), this Court first discussed an exception to the
general rule of nonliability for damages caused to a third
party by an independent contractor’s performance of an act
likely to do harm to that third party.
this
Court
independent
was
whether
contractor
to
a
landowner
clear
The question before
who
farmland
employed
was
an
liable
for
damages to neighboring property resulting when a fire that
the contractor had set spread to neighboring land.
Court
resolved
the
issue
on
statutory
grounds,
This
but
discussed in obiter dictum the common-law principles that
would have applied, stating:
[T]he rule relieving the employer where the
work has been committed to an independent
contractor is subject to the well-established
exceptions that:
“If the thing to be done is in itself
unlawful, or if it is per se a nuisance, or if it
cannot be done without doing damage, he who
causes it to be done by another, be the latter
servant, agent, or independent contractor, is as
6
much liable for injuries which may happen to
third persons from the act done as though he had
done the act in person.
So it is the duty of
every person who does in person, or causes to be
done by another, an act which from its nature is
liable, unless precautions are taken, to do
injury to others, to see to it that those
precautions are taken, and he cannot escape this
duty by turning the whole performance over to a
contractor.”
[Id. at 282-283 (some emphases
added).]
In Inglis v Millersburg Driving Ass’n, 169 Mich 311;
136
NW
443
common-law
(1912),
this
exception.
Court
In
elaborated
that
case,
on
the
agents
above
of
the
defendant association had set fires on fairgrounds property
in the defendant’s possession to clear it, and the fires
spread to the plaintiff’s adjoining land, causing damage.
This Court held that the defendant was estopped to argue
that
independent
contractors,
rather
than
the
unincorporated association itself, were responsible for the
damage, because it had not pleaded that defense or argued
it at trial.
Id. at 317-318.
This Court opined in obiter
dictum, however, that an exception would have applied to
the
general
rule
of
nonliability
actions of independent contractors.
of
landowners
for
the
While this Court cited
its decision in Rogers and various other formulations of
the rule, perhaps the best articulation of the principle
was as follows:
7
The doctrine of independent contractor,
whereby one who lets work to be done by another,
reserving no control over the performance of the
work, is not liable to third persons for injuries
resulting from negligence of the contractor or
his servants, is subject to several important
exceptions.
One of these . . . is where the
employer is, from the nature and character of the
work, under a duty to others to see that it is
carefully performed.
It cannot be better stated
than in the language used by Cockburn, C.J., in
Bower v. Peate, 1 Q.B. Div. 321, 326, a leading
and well-considered case. It is, ‘that a man who
orders a work to be executed, from which, in the
natural course of things, injurious consequences
to his neighbor must be expected to arise, unless
means are adopted by which such consequences may
be averted, is bound to see the doing of that
which is necessary to prevent mischief, and
cannot relieve himself of his responsibility by
employing some one else——whether it be the
contractor employed to do the work from which the
danger arises, or some independent person——or to
do what is necessary to prevent the act he has
ordered done from becoming unlawful.’ . . . This
does not abrogate the law as to independent
contractor.
It still leaves abundant room for
its proper application. ‘There is,’ as stated by
Cockburn,
‘an
obvious
difference
between
committing work to a contractor to be executed,
from which, if properly done, no injurious
consequences can arise, and handing over to him
work
to
be
done
from
which
mischievous
consequences will arise unless precautionary
measures are adopted.’
“The weight of reason and authority is to
the effect that, where a party is under a duty to
the public, or third person, to see that work he
is about to do, or have done, is carefully
performed, so as to avoid injury to others, he
cannot, by letting it to a contractor, avoid his
liability, in case it is negligently done to the
injury of another."
Covington, etc., Bridge Co.
v. Steinbrock & Patrick, 61 Ohio St. 215 (55 N.E.
618 [1899], and cases cited.” [Inglis at 320-321
(citations omitted, emphasis added).]
8
Thus, the above rule, which has come to be known as
the “inherently dangerous activity exception,” is founded
on the existence of a duty on behalf of the landowner, or
employer of an independent contractor, and the duty must be
of
the
type
that
is
nondelegable.
The
employer
or
landowner must also be aware that the danger exists and
that it necessarily involves danger to others.
Notably,
the type of danger contemplated by the Inglis Court was
danger to third parties and not to those involved in the
dangerous activity.
Over the next several decades, this Court reaffirmed
that, under this doctrine, the landowner must itself owe
some duty to the specific third party, that the negligent
act that causes the injury cannot be collateral to the work
contracted for, and that the injury that occurs must be
reasonably expected by the landowner.
See Cary v Thomas,
345 Mich 616; 76 NW2d 817 (1956); Barlow v Kreighoff Co,
310 Mich 195; 16 NW2d 715 (1944); Grinnell v Carbide &
Carbon Chemicals Corp, 282 Mich 509; 276 NW 535 (1937);
Tillson
v
Consumers
Power
Co,
269
Mich
53;
256
NW
801
(1934); Watkins v Gabriel Steel Co, 260 Mich 692; 245 NW
801 (1932); Wight v H G Christman Co, 244 Mich 208; 221 NW
9
314 (1928).
Notably, under this Court’s precedent, the
doctrine applied only to third parties.
B. Expansion of the Inherently Dangerous Activity
Doctrine to a Contractor’s Employees
In Vannoy v City of Warren, 15 Mich App 158; 166 NW2d
486 (1968), the Court of Appeals purported to expand the
scope of the inherently dangerous activity doctrine to hold
a landowner liable not to a third party, but to the estate
of a deceased employee of an independent contractor.
The
Court expressly rejected the landowner’s argument that the
doctrine
applied
employees
of
only
an
to
third
independent
contractor
inherently dangerous activity.
stated
that
limiting
the
parties
and
not
to
the
engaged
in
the
Id. at 164-165.
exception
to
The Court
third
persons
“violate[d] the absolute character of the duty . . . .”
Id. at 164.
In McDonough v Gen Motors Corp, 388 Mich 430; 201 NW2d
609 (1972), a plurality of this Court reversed a directed
verdict for the defendant landowner, concluding that the
inherently dangerous activity exception could be applied to
impose
liability
subcontractor’s
on
the
employee.
owner
The
for
plurality
injuries
quoted
to
a
Justice
COOLEY’s formulation of the rule that this Court cited in
Inglis:
10
“‘If I employ a contractor to do a job of
work for me which, in the progress of its
execution, obviously exposes others to unusual
perils, I ought, I think, to be responsible, * *
* for I cause acts to be done which naturally
expose others to injury.’”
[McDonough at 438,
quoting Inglis, supra at 319, quoting 2 Cooley
Torts (3d ed), p 109.]
Without
explanation,
the
plurality
assumed
that
the
“others” quoted above included the contractor’s employees
and not only third parties.
Justice
inherently
BRENNAN
dissented,5
dangerous
activity
contending
exception
that
the
protects
“strangers” and does not apply to “a plaintiff who was
himself
actively
activity.”
engaged
in
McDonough at 453.
the
inherently
dangerous
His dissent stated:
The
application
of
this
well
settled
exception is clear in cases where the injured
person is a stranger to the inherently dangerous
activity.
In Inglis [supra], the inherently
dangerous activity was burning, and the plaintiff
was a neighboring landowner; in Grinnell [supra],
the danger was explosion, the plaintiff a
purchaser of a stove; in Watkins [supra], the
dangerous
activity
was
elevated
steel
construction, the plaintiff a mason contractor;
in Olah v Katz, 234 Mich 112 [207 NW 892] (1926),
the danger was an open pit, the plaintiff a
neighboring child; in Detroit v Corey, 9 Mich 165
(1861), the danger was an open ditch, the
plaintiff
a
passer-by;
in
Darmstaetter
v
Moynahan, 27 Mich 188 (1873), the danger was a
wall of ice in the roadway, the plaintiff a
sleigh rider; in McWilliams v Detroit Central
5
Justice T. G. KAVANAGH joined Justice BRENNAN’s dissent.
11
Mills Co, 31 Mich 274 (1875), the danger was a
railroad switching operation, the plaintiff a
passer-by. . . .
Indeed, there are almost no cases which have
come to notice in which the suit is brought by or
on behalf of a plaintiff who was himself actively
engaged in the inherently dangerous activity.
Those few precedents which are cited seem to
be founded upon other grounds.
* * *
[T]he rule of liability is designed to
protect innocent third parties injured by the
execution of an inherently dangerous undertaking.
The rule is not designed, nor was it ever
intended to benefit the contractor who undertakes
the dangerous work, or his employees.
Thus, if I employ a contractor to remove a
tree stump from my yard by use of explosives, I
am liable to my neighbor whose garage is damaged
by the concussion.
This is because it is I who
have set the project in motion; it is I who have
created the unusual peril; it is for my benefit
that the explosives were used. As between myself
and my neighbor, I ought not to be permitted to
plead that it was the contractor's negligence and
not my own which damaged his property.
But if the contractor should blow up his own
truck, I should not be liable. He is the expert
in explosives and not me [sic].
I had neither
the legal right nor the capability to supervise
his work.
The same would be true if the
contractor's workman had injured himself, or been
injured by the carelessness of a fellow workman
or the negligence of his employer.
Neither the
contractor nor his employees are "others", as
contemplated in Cooley's statement of the rule.
Indeed, they are privy to the contract which
creates the peril.
The mischief of today's decision is not its
result, but its logic.
One assumes that a
company like General Motors has no want of access
12
to expertise. It may well have safety engineers
on its payroll far more knowledgeable about
structural steel than the decedent's employer.
But to predicate liability here on the Inglis,
Olah, Wight and Watkins line of cases is to
impose upon many, many other, less sophisticated
defendants the same burden to attend to the
safety
of
the
employees
of
independent
contractors. [McDonough, supra at 453-456.]
In Bosak v Hutchinson, 422 Mich 712, 724; 375 NW2d 333
(1985), this Court relied on Vannoy and McDonough for the
proposition
that
the
inherently
dangerous
activity
exception has, on occasion, been applied to employees of
contractors performing dangerous work.
This Court did not
provide further analysis of this issue, however, given its
holding that assembling a crane after hours, the activity
involved
in
that
case,
did
not
constitute
activity, but a routine construction activity.
a
dangerous
Id. at 728.
Further, in Justus v Swope, 184 Mich App 91; 457 NW2d
103 (1990), on which the trial court in the instant case
relied,
the
Court
of
Appeals
stated,
“The
inherently
dangerous activity doctrine has, thus far, been found to
impose liability in cases involving owners fully capable of
recognizing
McDonough,
impose
the
Vannoy,
liability
injuries
potential
that
an
and
on
danger.”
others.
“mere
employee
Id.
The
Court
homeowners,”
of
an
at
96,
citing
declined
id.
independent
at
96,
to
for
contractor
sustained while removing a dead tree from the homeowners’
13
yard.
the
The Court stated that it was unreasonable to expect
homeowners
to
be
cognizant
inherent in tree removal.
of
the
particular
Id. at 97-98.
risks
Thus, the Court
seemingly would have imposed liability if the homeowners
had
been
aware
of
such
risks.
The
Court
opined
that
imposing liability in that case, however, was exactly the
fear
that
Justice
BRENNAN
expressed
in
his
dissent
in
McDonough.
C. Analysis
The analysis in Justice BRENNAN’s McDonough dissent is
persuasive and consistent with the longstanding common-law
principles discussed in our case law.
When a landowner
hires an independent contractor to perform work that poses
a peculiar danger or risk of harm, it is reasonable to hold
the landowner liable for harm to third parties that results
from
the
activity.
If
an
employee
of
the
contractor,
however, negligently injures himself or is injured by the
negligence of a fellow employee, it is not reasonable to
hold
the
involved
landowner
is
liable
inherently
merely
dangerous.
because
the
activity
As
Justice
BRENNAN
recognized, the inherently dangerous activity doctrine was
designed
to
protect
third
parties,
involved in the dangerous activity.
14
not
those
actively
The Restatement of Torts echoes the above principle.
2 Restatement of Torts, 2d, § 416 provides:
One who employs an independent contractor to
do work which the employer should recognize as
likely to create during its progress a peculiar
risk of physical harm to others unless special
precautions are taken, is subject to liability
for physical harm caused to them by the failure
of the contractor to exercise reasonable care to
take such precautions, even though the employer
has provided for such precautions in the contract
or otherwise. [Emphasis added.]
Similarly, 2 Restatement of Torts, 2d, § 427 states:
One who employs an independent contractor to
do work involving a special danger to others
which the employer knows or has reason to know to
be inherent in or normal to the work, or which he
contemplates or has reason to contemplate when
making the contract, is subject to liability for
physical harm caused to such others by the
contractor’s
failure
to
take
reasonable
precautions against such danger.
[Emphasis
added.]
The text of the above provisions applies to “others.”
term
“others”
necessarily
refers
to
persons
other
The
than
those directly involved in the dangerous activity.
Moreover,
all
the
illustrations
in
the
Restatement
pertaining to §§ 416 and 427 involve injuries to innocent
third parties and not to those directly involved in the
activity.
For example, the first illustration under § 416
provides:
1. A employs B, an independent contractor,
to erect a building upon land abutting upon a
public highway. The contract entrusts the whole
15
work of erection to B, and contains a clause
requiring the contractor to erect a sufficient
fence around the excavations necessary for the
erection of the building.
It contains also a
clause by which the contractor assumes all
liability for any harm caused by his work.
B
digs the excavation but fails to erect a fence.
In consequence, C, while walking along the
highway at night, falls into the cellar and is
hurt. A is subject to liability to C.
In the above illustration, C is an innocent third party and
is
not
directly
involved
in
the
dangerous
activity.
Similarly, C in the following illustration under § 427 is
an innocent third party:
3. A employs B, an independent contractor,
to excavate a sewer in the street. B leaves the
trench unguarded, without warning lights, and C
drives his automobile into it in the dark.
The
danger is inherent in the work, and A is subject
to liability to C.
Although a plurality of this Court in McDonough cited §§
416
and
inherently
427
of
the
dangerous
Restatement
activity
when
exception,
discussing
the
the
plurality
failed to recognize that the term “others” refers to third
parties, and not to those persons involved in the dangerous
activity.
The Court of Appeals in Vannoy improperly extended the
inherently dangerous activity doctrine to include employees
of independent contractors.
We thus overrule the Court of
Appeals holding in Vannoy.
We also reject this Court’s
obiter dictum in Bosak to the extent that it approved of
16
Vannoy’s extension of the doctrine.
precedent,
clear,
before
the
McDonough,
inherently
and
dangerous
As our longstanding
the
Restatement
activity
exception
make
is
limited to third parties.6
Further,
as
Justice
BRENNAN
recognized
in
McDonough,
allowing liability to be imposed on landowners for injuries
resulting
to
an
independent
contractor’s
employees
will
necessarily result in liability imposed not only on large
corporations
safety
fully
precautions,
capable
but
of
also
assessing
and
on
sophisticated”
“less
providing
landowners who may be unaware of such dangers or unable to
provide precautionary measures to avoid the inherent risk.
Indeed, in many situations it may be the risk itself that
prompts a landowner to hire an independent contractor in
the first instance.
A contractor who may specialize and
routinely engage in the activity would likely be better
able to perform the activity in a safe manner.
Likewise,
the
implement
contractor
is
probably
6
better
able
to
Our concurring colleague opines that an exception to
this rule exists where a landowner retains control over the
work performed and is in a position to ensure that the
independent contractor takes adequate safety precautions.
Post at 2.
Because these circumstances are not presented
in this case, we express no opinion regarding whether a
landowner who has retained control over the dangerous work
may be subject to liability for injuries to a contractor’s
employee caused by the contractor’s negligence.
17
reasonable
safety
precautions
for
the
protection
of
its
employees who perform the dangerous work, and this duty
accordingly lies with the contractor.
We thus adhere to
the established common-law principle that this Court had
consistently followed before McDonough.
Because
the
inherently
dangerous
activity
exception
does not apply when the injured party is an employee of an
independent
contractor
rather
than
a
third
exception does not apply in the instant case.
party,
the
Accordingly,
the trial court properly granted summary disposition for
defendants.
IV. CONCLUSION
We
conclude
that
the
inherently
dangerous
activity
exception is limited to third parties and does not apply to
employees
of
independent
performing
dangerous
contractors
work.
Because
injured
plaintiff
while
was
an
employee of an independent contractor rather than a third
party,
the
Accordingly,
doctrine
we
is
reverse
inapplicable
the
judgment
in
of
this
the
Appeals.
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
18
case.
Court
of
S T A T E
O F
M I C H I G A N
SUPREME COURT
ROBERT F. DESHAMBO,
Plaintiff-Appellee,
and
Nos. 122939-122940
JENNIFER M. GRANHOLM, Attorney
General of the State of Michigan,
and MICHIGAN DEPARTMENT OF
COMMUNITY HEALTH,
Intervening Plaintiff-Appellee,
v
NORMAN R. NIELSEN and PAULINE
NIELSEN,
Defendants-Appellants,
and
CHARLES W. ANDERSON,
Defendant.
_______________________________
KELLY, J. (concurring in result only).
I agree with the result reached by the majority in
this case.
the
majority
However, I write separately to point out that
takes
no
cognizance
of
the
effect
of
its
analysis when read together with its decision in Ormsby v
Capital Welding, Inc, 471 Mich ___; ___ NW2d ___ (2004).
I
believe that our jurisprudence requires that a landowner
retaining
control
dangerous
work
over
should
the
be
performance
liable
for
independent contractor's employee.
case,
when
read
with
the
of
an
inherently
injury
to
an
The decision in this
decision
in
Ormsby,
suggests
otherwise.1
A landowner is generally not liable to the employee of
a
contractor
negligence.
the
for
injuries
Ante at 5.
landowner
caused
by
the
contractor’s
An exception has been made where
retained
control
of
the
job
site
and
inherently hazardous activities were undertaken.
The Court holds today that a landowner is not liable
for a contractor’s negligence that injures the contractor's
employee engaged in an inherently dangerous activity.
at
14.
analysis
The
in
Court
adopts
McDonough
v
Justice
Gen
Motors2
Brennan’s
and
holds
Ante
dissenting
that
the
landowner has “'neither the legal right nor the capability
to supervise [the independent contractor’s] work.'”
at 12, quoting McDonough at 456.
Ante
The landowner here is not
alleged to have retained control of the job site.
1
I dissented from the decision in Ormsby on the ground
that the inherently dangerous activity doctrine and the
retained control doctrine are distinct theories of tort
liability.
2
McDonough v Gen Motors Corp, 388 Mich 430; 201 NW2d
609 (1972).
2
As previously indicated, a landowner is liable to a
contractor's employee if he retained control over hazardous
work and was positioned to ensure that the contractor took
adequate precautions.
Funk v General Motors Corp, 392 Mich
91, 105; 220 NW2d 641 (1974), overruled in part on other
grounds by Hardy v Monsanto Enviro-Chem Systems, Inc, 414
Mich 29; 323 NW2d 270 (1982).
The retained control doctrine is a distinct theory of
liability.
It
applies
where
the
entity
engaging
the
services of the independent contractor has the legal right
and
the
capability
to
supervise
the
work.
Plummer
v
Bechtel Constr Co, 440 Mich 646, 659; 489 NW2d 66 (1992)
(opinion
by
Levin,
J).
The
doctrine
is
applicable
regardless of whether the employer is a landowner or a
general contractor.
This
case
was
argued
and
Ormsby v Capital Welding, Inc.
that
the
retained
contractors
who
control
utilize
submitted
doctrine,
applied
subcontractors,
independent theory of liability.
Ormsby
is
held
to
with
The Court in Ormsby holds
is
element of the common work area doctrine.
If
together
to
general
merely
an
It is not an
Ormsby at ___.
apply
to
landowners,
the
decisions here and in Ormsby, read together, could have
unfortunate
unintended
results
3
in
future
cases.
The
inference to be drawn from them is this:
a landowner who
retains control of inherently dangerous work on a job site
will not be liable for injuries to a contractor's employee
unless the injury occurred in a common work area.
majority denies the validity of this inference.
___, n 13.
The
Id. at
However, the opinion’s language strongly belies
that denial.
Under the tort-reform statutes, liability is almost
always several only and not joint.
MCL 600.2956.
Legal
liability is distinct from fault, although it is based on
fault.
Fault
assigns
it,
legally
is
determined
liable.
party
can
regardless
MCL
recover
of
by
the
whether
600.6304(1).
only
from
a
trier
a
party
who
be
held
can
However,
party
fact3
of
that
an
can
injured
be
held
legally liable.
Under the preceding tort-reform statutes, the trier of
fact can assign fault to a landowner who has directed the
actions
of
inherently
an
independent
dangerous
contractor
activity.
The
engaged
Court’s
in
opinions
an
in
DeShambo and Ormsby could be interpreted to hold that such
a negligent landowner could escape all liability for injury
caused to the employee of his contractor.
3
MCL 600.2957(1).
4
The landowner
cannot
be
activity
held
liable
doctrine.
under
DeShambo.
the
inherently
Neither
can
liable under the retained control doctrine.
dangerous
he
be
held
Ormsby.
I believe that this result would be inconsistent with
principles underlying the common law.
be
inconsistent
statutes.
liable
with
the
intent
Moreover, it would
of
the
tort-reform
A negligent actor is intended to be legally
for
his
actions.
The
majority
potentially
undermines this principle with the holdings in these two
cases.
Absent
language
correcting
this
problem,
the
analysis in the majority opinion is unacceptable to me and
I concur only in the result reached by the majority.
Marilyn Kelly
5
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