RALPH ORMSBY V METROPOLITAN BUILDING SERVICES
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
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
RALPH ORMBSY AND KIMBERLY ORMSBY,
Plaintiffs-Appellees,
v
No. 123287
CAPITAL WELDING, INC.,
Defendant-Appellant,
and
MONARCH BUILDING SERVICES, INC.,
Defendant-Appellee,
and
METROPOLITAN BUILDING SERVICES
and RITE AID OF MICHIGAN,
Defendants.
________________________________
RALPH ORMSBY and KIMBERLY ORMSBY,
Plaintiffs-Appellees,
V
No. 123289
CAPITAL WELDING, INC.,
Defendant-Appellee,
and
MONARCH BUILDING SERVICES, INC.,
Defendant-Appellant,
and
METROPOLITAN BUILDING SERVICES
and RITE AID OF MICHIGAN,
Defendants.
_______________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
We granted leave to appeal in this case to consider
the relationship between the “common work area doctrine”
and the “retained control doctrine,” and to address the
scope of each doctrine.
At common law, property owners and
general contractors generally could not be held liable for
the
negligence
employees.
of
independent
subcontractors
and
their
In Funk v Gen Motors Corp, 392 Mich 91, 104-
105; 220 NW2d 641 (1974),1 however, this Court set forth a
new exception to this general rule of nonliability, holding
that,
under
certain
circumstances,
a
general
contractor
could be held liable under the “common work area doctrine”
1
Overruled in part on other grounds Hardy v Monsanto
Enviro-Chem Sys, Inc, 414 Mich 29; 323 NW2d 270 (1982).
2
and, further, that a property owner could be held equally
liable under the “retained control doctrine.”
In this case, the Court of Appeals reversed the trial
court’s grant of summary disposition for both defendants,
holding that these doctrines are two distinct and separate
exceptions to the general rule of nonliability of property
owners and general contractors concerning the negligence of
independent
subcontractors
and
their
employees.
We
disagree with the Court of Appeals and clarify today that
these
two
doctrines
exceptions,
rather
doctrine”—is
an
nonliability
for
are
not
only
distinct
one—the
exception
the
two
to
“common
the
negligent
subcontractors and their employees.
and
work
general
acts
of
separate
rule
area
of
independent
Thus, only when the
Funk four-part “common work area” test is satisfied may an
injured employee of an independent subcontractor sue the
general
contractor
for
that
contractor’s
alleged
negligence.
Further, the “retained control doctrine” is a doctrine
subordinate to the “common work area doctrine” and is not
itself an exception to the general rule of nonliability.
Rather, it simply stands for the proposition that when the
Funk
“common
work
area
doctrine”
would
apply,
and
the
property owner has sufficiently “retained control” over the
3
construction project, that owner steps into the shoes of
the general contractor and is held to the same degree of
care
as
control
the
general
doctrine,”
contractor.
in
this
Thus,
context,
the
means
“retained
that
if
a
property owner assumes the role of a general contractor,
such owner assumes the unique duties and obligations of a
general contractor.
Accordingly, we reverse the decision
of the Court of Appeals and reinstate the trial court’s
grant of summary disposition for both defendants.
I. Facts and Proceedings Below
This case arose out of a construction accident that
occurred during the construction of a Rite Aid store in
Troy, Michigan.
Property owner Rite Aid hired defendant
Monarch Building Services, Inc. (Monarch), as the general
contractor
steel
for
the
fabrication
project.
and
Monarch
steel
erection
subcontracted
work
to
the
defendant
Capital Welding, Inc. (Capital), which then subcontracted
the steel erection work to Abray Steel Erectors (Abray).
Plaintiff
Ralph
Ormsby
was
employed
by
Abray
as
a
journeyman ironworker on the site.
Capital delivered the steel for the project, at which
time a crew from Abray began erecting the building using
the steel.
During the unloading process, Abray personnel
allegedly disregarded an express warning that Capital had
4
attached
to
the
steel
beams
that
stated,
“Under
no
circumstances are deck bundles or construction loads of any
other description to be placed on unbridged joists.” The
warning
also
cautioned
against
loading
bundles
of
steel
decking, weighing between two and three tons each, onto the
unsecured erected steel structure.
Plaintiff
began
working
on
the
unsecured
properly align the joists into position.
joists
To do so, he
would strike the unsecured joist with a hammer.
performing
this
task,
there
was
a
to
sudden
shift
While
in
an
unsecured joist that, coupled with the fact that the joist
was loaded with decking, allegedly caused the collapse of
the structure, resulting in plaintiff’s fifteen foot fall
and subsequent injuries.
Plaintiff filed suit against Capital, alleging, among
other
things,
negligently
that
supervised
Capital
the
retained
project,
control
and
of
acquiesced
and
to
unsafe construction activities, including loading unwelded
bar joists.2
Plaintiff later amended his complaint and
added the same claims against Monarch.
2
Although both Ormsby and his wife filed complaints,
his wife’s suit is wholly derivative.
Therefore, we use
"plaintiff" in the singular.
5
Capital
filed
a
motion
for
summary
disposition
contending that there was no genuine issue of material fact
regarding whether it
retained control over the project
because plaintiff failed to present any evidence that he
was injured in a common work area.
motion,
separate
contending
and
instead
distinct,
that
and
Plaintiff opposed the
the
thus
two
Capital
doctrines
were
could
held
be
liable under the “retained control doctrine” even if he
failed to satisfy the elements of the “common work area
doctrine.”
The trial court agreed with Capital and granted its
motion.
Combining the doctrines of “common work area” and
“retained control,” the trial court determined that “the
retained
control
theory
applies
involving ‘common work areas.’”
only
in
situations
The trial court further
stated, “This Court finds that there was no common work
area that created a high degree of risk to a significant
number of workers” and “there is no evidence that other
subcontractors
structure.”
would
work
on
the
erection
of
the
steel
That is, the trial court found that plaintiff
had failed to satisfy two elements of the “common work area
doctrine,”
existed
and
thus
regarding
no
genuine
whether
issue
either
Capital.
6
of
material
doctrine
applied
fact
to
Following Capital’s successful motion, Monarch filed
its
own
motion
2.116(C)(10),
for
summary
contending
that
disposition
plaintiff
had
under
MCR
failed
to
provide any evidence to satisfy each of the four elements
of the “common work area doctrine.”
moved
for
leave
to
amend
his
In response, plaintiff
complaint
to
assert
that
plaintiff was in fact injured in a “common work area” as
defined in Funk.
for
the
same
The trial court granted Monarch’s motion
reasons
that
it
had
granted
the
earlier
Capital motion and denied plaintiff’s motion to amend his
complaint, ruling that the amendment would be futile in
light of its ruling that there was no genuine issue of
material
fact
regarding
the
existence
of
a
common
work
area.
The Court of Appeals reversed in part, holding (1)
that the “common work area doctrine” and “retained control
doctrine” are two distinct and separate exceptions and (2)
that evidence that “employees of other subcontrators would
be or had been working in the same area where plaintiff’s
injury occurred . . . create[d] a genuine issue of material
fact
regarding
whether
common work area.”
(2003).
plaintiff’s
injury
occurred
in
a
255 Mich App 165, 188; 660 NW2d 730
Accordingly,
the
Court
7
permitted
plaintiff’s
“retained control” claim to proceed against Capital,3 and
permitted plaintiff’s “common work area” claim to proceed
against both Capital and Monarch.
Further, the Court held
that
in
the
trial
court
had
erred
denying
plaintiff’s
motion to amend his complaint concerning his allegations
that he had been injured in a “common work area.”
Both
defendants filed applications for leave to appeal with this
Court, which we granted.4
II. Standard of Review
Summary disposition under either MCR 2.116(C)(8) or
(C)(10) presents an issue of law for our determination and,
thus, "[w]e review a trial court's ruling on a motion for
summary disposition de novo." Straus v Governor, 459 Mich
526, 533; 592 NW2d 53 (1999).
When a trial court grants summary disposition pursuant
to MCR 2.116(C)(8), or (C)(10), the opportunity for the
nonprevailing party to amend its pleadings pursuant to MCR
2.118 should be freely granted, unless the amendment would
3
Regarding Monarch, the Court of Appeals concluded
that the trial court’s order granting Monarch summary
disposition on plaintiff’s retained control theory was
proper because no genuine issue of material fact existed
that Monarch had not retained control over plaintiff’s
work.
4
469 Mich 947 (2003).
8
not be justified.
MCR 2.116(I)(5).
An amendment, however,
would not be justified if it would be futile.
Khera, 454 Mich 639, 658; 563 NW2d 647 (1997).
Weymers v
We will not
reverse a trial court's decision to deny leave to amend
pleadings
unless
it
constituted
an
abuse
of
discretion.
Id. at 654.
III. Analysis
As discussed briefly above, 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, this Court set forth an
exception to this general rule of nonliability.
There,
property owner General Motors (GM) hired general contractor
Darin & Armstrong (Darin) to expand one of its plants.
The
general contractor, in turn, subcontracted a portion of the
work
to
Funk’s
employer,
Ben
Agree
Company.
Funk
was
injured in a fall from a platform and sued GM and Darin,
alleging that each owed him a duty to implement reasonable
safety
precautions
and
to
ensure
that
workers
on
the
project used adequate safety equipment to protect against
falls.
GM and Darin defended on the basis that, under the
common
law, neither had a duty to protect plaintiff from
these types of dangers.
this
Court
set
forth
Departing from established law,
an
exception
9
in
circumstances
involving construction projects and affirmed the verdict
against Darin:
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.
[Funk, supra at
104.]
That is, for a general contractor to be held liable under
the “common work area doctrine,” 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.
Having established that a general contractor could be
held liable for negligence regarding job safety, the Court
then addressed the potential liability of a property owner.
The Court held that, under the new rule, a property owner
could itself be liable if it had “retained control” in such
a way that it had effectively stepped into the shoes of the
general contractor and been acting as such.
The Court
first stated:
test
This analysis [i.e., the “common work area”
quoted above in reference to the general
10
contractor] would not ordinarily render a “mere”
owner liable.
In contrast with a general
contractor,
the
owner
typically
is
not
a
professional builder.
Most owners visit the
construction site only casually and are not
knowledgeable concerning safety measures. . . .
Supervising job safety, providing safeguards, is
not part of the business of a typical owner.
[Id. at 104-105 (emphasis added).]
Then it continued by outlining the circumstances in which
the ordinary rule would not control, saying:
[T]he law does not . . . absolve an owner
who acts in a superintending capacity and has
knowledge of high degrees of risk faced by
construction workers from responsibility for
failing to require observance of reasonable
safety precautions. [Id. at 106-107.]
The Court’s use of the word “ordinarily,” italicized above,
considered
in
conjunction
with
its
statement
that
a
property owner cannot escape liability if that owner acts
in a “superintending capacity and has knowledge of high
degree of risk faced by construction workers,” necessarily
implies that, under certain circumstances, the “common work
area” doctrine would render a property owner liable.5
Thus,
it is clear that this Court was applying the identical
5
The Court also stated that “[a]n owner is responsible
if he does not truly delegate—if he retains ‘control’ of
the work—or if, by rule of law or statute, the duty to
guard against the risk is made ‘nondelegable.’” Id. at 101
(emphasis added).
11
“common work area” analysis to GM, as property owner, on
the basis that it “retained control.”
Applying these new doctrines to the facts in Funk, the
Court
noted
that
Funk
had
largely
created
his
own
circumstances because he essentially “dug a hole and . . .
[he] fell into it,” id. at 100.
The general contractor,
Darin,
of
was
fully
knowledgeable
the
subcontractor’s
failure to implement reasonable safety precautions for a
readily apparent danger where such precautions likely would
have prevented Funk’s fall.
Further, the Court held that
GM had exercised “an unusually high degree of control over
the construction project,” and thus was also liable for
Funk’s injuries.
Id. at 101.
Thus, this Court stated that
the evidence supported a finding of GM’s tacit, if not
actual, control of safety measures or the lack thereof “in
the highly visible common work areas.”
Id. at 107.
Accordingly, we conclude that, on the basis of this
Court’s analysis in Funk, the “common work area doctrine”
and the “retained control doctrine” are not two distinct and
separate
exceptions.
Rather,
the
former
doctrine
is
an
exception to the general rule of nonliability of property
owners and general contractors for injuries resulting from
the negligent conduct of independent subcontractors or their
employees.
Thus, only when the Funk four-part “common work
12
area” test is satisfied may a general contractor be held
liable
for
independent
alleged
negligence
the
regarding
subcontractors
of
employees
job
safety.
of
The
“retained control” control doctrine is merely a subordinate
doctrine, applied by the Funk Court to the owner defendant,
that has no application to general contractors.6
In her dissent in Funk, Justice Coleman was concerned
that
the
practice
“common
into
a
work
area
strict
doctrine”
liability
would
regime
devolve
where
in
general
contractors would be responsible for any common work area
injury
that
suffers.
have
not
an
employee
Id. at 116.
come
to
of
an
independent
subcontractor
Although Justice Coleman’s concerns
fruition,7
Funk
has
morphed
from
a
straightforward doctrine conferring liability, under certain
circumstances, on property owners or general contractors for
the negligence of independent subcontractors, into a “two
6
The Funk Court applied the “retained control”
doctrine to the property owner defendant in that case. The
owner of the subject property in this case, Rite Aid, was
dismissed early in the litigation, and its liability is not
at issue.
It is therefore unnecessary to address owner
liability, and we express no opinion regarding the Funk
“retained control” doctrine as it applies to property
owners.
7
Neither defendant nor any brief amicus curiae has
urged the Court to overrule Funk, but only to clarify the
nature of the Funk holding.
13
exception” creation.
Indeed, the instant opinion by the
Court of Appeals outlined that progression8 and proceeded to
erroneously conclude that even an entity that is neither a
8
As the Court of Appeals read the cases, Erickson v
Pure Oil Corp, 72 Mich App 330, 335-336; 249 NW2d 411
(1976), distinguished the doctrines of “retained control”
and “common work area” and applied them separately; Signs v
Detroit Edison Co, 93 Mich App 626, 632; 287 NW2d 292
(1979), addressed general contractor liability based on
“retained control” even though it found that the plaintiff
was not injured in a “common work area”; Samhoun v
Greenfield Constr Co, Inc, 163 Mich App 34, 45; 413 NW2d
723 (1987), blended the doctrines of “retained control” and
“common work area”; Johnson v Turner Constr Co, 198 Mich
App 478, 480; 499 NW2d 27 (1993), separately addressed the
two doctrines; Phillips v Mazda Motor Mfg (USA) Corp, 204
Mich App 401, 408; 516 NW2d 502 (1994), addressed the
doctrines of “retained control” and common work area”
separately; Hughes v PMG Building, 227 Mich App 1, 8; 574
NW2d 691 (1997), discussed the “common work area doctrine”
without reference to the “retained control doctrine”;
Kubisz v Cadillac Gage Textron, Inc, 236 Mich App 629, 636;
601 NW2d 160 (1999), discussed the “retained control
doctrine” as a "second main exception" to the general rule
of nonliability for the negligence of an independent
contractor without mentioning the four-part test in Funk or
addressing whether the plaintiff's injury occurred in a
“common work area”; Candelaria v B C Gen Contractors, Inc,
236 Mich App 67, 74; 600 NW2d 348 (1999), stated that the
“retained
control
doctrine”
applies
only
in
those
situations involving “common work areas.”
Unfortunately, our post-Funk decisions that have
addressed the “retained control” and “common work area”
doctrines have been plurality opinions, and, as explained
in Dean v Chrysler Corp, 434 Mich 655, 661 n 7; 455 NW2d
699 (1990), are not binding authority. See Beals v Walker,
416 Mich 469; 331 NW2d 700 (1982), Plummer v Bechtel Corp,
440 Mich 646; 489 NW2d 66 (1992), and Groncki v Detroit
Edison, 453 Mich 644; 557 NW2d 289 (1996).
14
property
owner
nor
a
general
contractor
(subcontractor
Capital) can be liable under Funk.
IV. Application
To
establish
the
liability
of
a
general
contractor
under Funk, a plaintiff must prove four elements: (1) that
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 workmen (4) in a common work area.9
Id. at 104.
9
With reference to element four—a common work area—we
agree with the following statement from Hughes, supra at 89, in which the court concluded that an overhang on a porch
did not constitute a common work area:
If the top of the overhang or even the
overhang in its entirety were considered to be a
"common work area" for purposes of subjecting the
general contractor to liability for injuries
incurred by employees of subcontractors, then
virtually no place or object located on the
construction premises could be considered not to
be a common work area. We do not believe that
this is the result the Supreme Court intended.
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
(continued…)
15
Funk is simply inapplicable to Capital in this case
because
Capital
was
general contractor.
neither
the
property
owner
nor
the
Thus, the trial court’s order granting
it summary disposition was proper.
Accordingly, we reverse
the judgment of the Court of Appeals and reinstate the
trial
court’s
order
granting
summary
disposition
for
was
general
contractor,
the
Capital.10
Because
Monarch
the
“common work area doctrine” may be applicable.
court
determined
that
plaintiff
had
failed
The trial
to
satisfy
element three, danger creating a high degree of risk to a
(…continued)
situation
where
employees
of
a
number
of
subcontractors were all subject to the same risk
or
hazard.
In
the
first
instance,
each
subcontractor is generally held responsible for
the safe operation of its part of the work. In
the latter case, where a substantial number of
employees of multiple subcontractors may be
exposed
to
a
risk
of
danger,
economic
considerations suggest that placing ultimate
responsibility on the general contractor for job
safety in common work areas will "render it more
likely that the various subcontractors . . . will
implement or that the general contractor will
himself implement the necessary precautions and
provide the necessary safety equipment in those
areas." Funk, supra at 104 (citations omitted).
10
Justice Kelly has concluded in her partial dissent
that plaintiffs’ lawsuit against Capital should be allowed
under Funk.
This deviates from Funk because Funk only
authorized claims against owners and general contractors.
Capital is neither.
16
significant number of workmen, and element four, a common
work
area,
Monarch.
and
thus
This
granted
approach
is
summary
disposition
consistent
with
for
Funk
and
reflects the understanding that a plaintiff’s failure to
satisfy any one of the four elements of the “common work
area doctrine” is fatal to a Funk claim.11
The Court of Appeals, misapprehending the merit of the
trial court’s approach, reversed the decision of the trial
court on the basis that it erred in finding that no genuine
issue
of
material
fact
“common work area.”
of
material
reversal
overlooked
fact
was
the
existed
element
four—a
Regardless of whether a genuine issue
existed
erroneous
fact
regarding
with
respect
because
the
that
the
trial
to
element
Court
of
court’s
four,
Appeals
order
was
premised not just on a deficiency of evidence regarding
element four, but also on the fact that no genuine issue of
material
fact
existed
regarding
element
three—danger
creating a high degree of risk to a significant number of
11
It is potentially confusing and, indeed, may have
misled some courts, that a test with four elements has been
referred to by only one of its elements—the “common work
area.”
What is commonly referred to as the “common work
area doctrine,” however, has four separate elements, all of
which must be satisfied before that doctrine may apply.
17
workmen.12
Inasmuch
establish
all
four
as
Funk
elements
requires
of
the
a
plaintiff
“common
work
to
area
doctrine” to prevail, the trial court ruling should have
been affirmed.
discretion
by
Thus, the trial court did not abuse its
refusing
to
allow
plaintiff
to
amend
his
complaint concerning the existence of a “common work area,”
because
such
Accordingly,
an
we
amendment
reverse
the
12
would
have
judgment
of
been
the
futile.
Court
of
Justice Kelly asserts in her dissent that the Court
of Appeals disagreed with the trial court’s conclusion that
plaintiff had failed to establish a genuine issue of
material fact that a high degree of risk to a significant
number of workers existed.
This is incorrect.
The Court
of Appeals specifically stated that it limited its
discussion and decision to the question whether plaintiff
was injured in a common work area.
255 Mich App at 188.
Justice Kelly goes on to indicate that she would find a
genuine issue of material fact whether a significant number
of workers were exposed to danger on the basis that a mason
was right below plaintiff when he fell, and because any
worker at the site would be working in, around and under
the steel structure after it was erected and all such
workers would be exposed to an extremely dangerous
condition if the structure was not competently constructed.
We disagree. The fact that one worker was below plaintiff
when he fell certainly does not establish a genuine issue
of material fact regarding whether a high degree of risk to
a significant number of workers existed.
Justice Kelly’s
vague reference to “any worker” being exposed to danger if
the structure was not competently construed is likewise
insufficient to create a genuine issue of material fact.
The high degree of risk to a significant number of workers
must exist when the plaintiff is injured; not after
construction has been completed.
18
Appeals and reinstate the trial court’s grant of summary
disposition for Monarch.
V. Conclusion
The
control”
doctrines
are
not
of
two
“common
work
distinct
and
area”
and
separate
“retained
exceptions.
Rather, under the “common work area doctrine,” a general
contractor may be held liable for the negligence of its
independent subcontractors only if all the elements of the
four-part “common work area” test set forth in Funk have
been satisfied.
is
subordinate
Further, the “retained control doctrine”
to
the
“common
work
area
doctrine”
and
simply stands for the proposition that when the “common
work area doctrine” would apply, and the property owner has
stepped into the shoes of the general contractor, thereby
“retaining
control”
over
the
construction
project,
that
owner may likewise be held liable for the negligence of its
independent subcontractors.13
Because neither Capital nor
Monarch satisfies all four elements of the “common work
area” doctrine, we reverse the judgment of the Court of
13
We reiterate that we are merely clarifying Funk and
we express no opinion concerning whether the Funk Court
properly imposed liability on an owner under the “retained
control” doctrine.
19
Appeals and reinstate the trial court’s grant of summary
disposition for both defendants.
Clifford W. Taylor
Maura D. Corrigan
Elizabeth A. Weaver
Robert P. Young, Jr.
Stephen J. Markman
20
S T A T E
O F
M I C H I G A N
SUPREME COURT
RALPH ORMSBY AND KIMBERLY ORMSBY,
Plaintiffs-Appelleess,
v
No. 123287
CAPITAL WELDING, INC.,
Defendant -Appellant,
and
MONARCH BUILDING SERVICES, INC.,
Defendant-Appellee,
and
METROPOLITAN BULDING SERVICES
and RITE AID OF MICHIGAN,
Defendants.
________________________________
RALPH ORMSBY AND KIMBERLY ORMSBY,
Plaintiffs-Appellees,
v
No. 123289
CAPITAL WELDING, INC.,
Defendant-Appellee,
and
MONARCH BUILDING SERVICES, INC.,
Defendant-Appellant,
and
METROPOLITAN BUILDING SERVICES
and RITE AID OF MICHIGAN,
Defendants.
_______________________________
CAVANAGH, J. (concurring in result only).
I
concur
However,
result
I
in
write
regardless
the
result
separately
of
reached
because
whether
the
I
by
the
would
doctrines
majority.
reach
of
that
retained
control and common work area are separate doctrines.
I
agree with the majority that the trial court’s grant of
summary disposition to both defendants should be reinstated
because
the
dispositive
issues
in
this
case
are
not
affected by whether the doctrines are separate or one is
subordinate to the other.
majority
because
this
I, however, cannot join the
Court
has
routinely
treated
the
doctrines of retained control and common work area as two
separate and distinct doctrines.
See Plummer v Bechtel
Constr Co, 440 Mich 646; 489 NW2d 66 (1992); Groncki v
Detroit Edison Co, 453 Mich 644; 557 NW2d 289 (1996).
Regardless of whether the doctrine of retained control
is subordinate to or separate from the common work area
doctrine, it is only applicable to property owners, and
because neither defendant Capital nor defendant Monarch is
2
the property owner, the trial court was correct to grant
each
defendant’s
motion
for
summary
disposition
with
respect to the doctrine of retained control.
Further, the common work area doctrine does not apply
to
subcontractors,
thus
the
trial
court
was
correct
to
grant defendant Capital’s motion for summary disposition
with respect to common work area liability.
See Funk v Gen
Motors Corp, 392 Mich 91, 104; 220 NW2d 641 (1974).
The
trial court was also correct to grant defendant Monarch’s
motion for summary disposition with respect to the common
work area doctrine.
Regardless of when the danger to a
significant number of workers must exist, plaintiff failed
to show that a genuine issue of material fact existed about
whether there was danger creating a high degree of risk to
a significant number of workers.
Because plaintiff failed
to establish a genuine issue of material fact and because
defendant Monarch was entitled to judgment as a matter of
law,
the
trial
court
was
correct
to
Monarch’s motion for summary disposition.
grant
Thus, I concur
in the result only.
Michael F. Cavanagh
3
defendant
S T A T E
O F
M I C H I G A N
SUPREME COURT
RALPH ORMSBY AND KIMBERLY ORMSBY,
Plaintiffs-Appellees,
v
No. 123287
CAPITAL WELDING, INC.,
Defendant-Appellant,
and
MONARCH BUILDING SERVICES, INC.,
Defendant-Appellee,
and
METROPOLITAN BUILDING SERVICES
and RITE AID OF MICHIGAN,
Defendants.
_______________________________
RALPH ORMSBY and KIMBERLY ORMSBY,
Plaintiffs-Appellees,
v
No. 123289
CAPITAL WELDING, INC.,
Defendant-Appellee,
and
MONARCH BUILDING SERVICES, INC.,
Defendant-Appellant,
and
METROPOLITAN BUILDING SERVICES
and RITE AID OF MICHIGAN,
Defendants-Not participating.
_______________________________
KELLY, J. (concurring in part and dissenting in part).
This
Court
granted
leave
limited
to
whether
the
retained control doctrine and the common work area doctrine
are
separate
and
to
a
discussion
doctrine. 469 Mich 947 (2003).
doctrines
are
not
of
the
as
applied
contractors who utilize subcontractors.
control
distinct
doctrine
and
theories
different premises.
of
the
of
each
The majority holds that the
separate
I respectfully dissent.
scope
to
general
Ante at 3-4.
I believe that the retained
common
work
liability.
area
They
are
doctrine
founded
are
on
Like all common law tort theories,
they reinforce distinct social norms.1
The
engages
retained
an
control
independent
doctrine
contractor
applies
but
to
retains
one
who
actual
control over the manner in which the work is performed.
It
imposes a duty to ensure that the contractor exercises due
1
See generally, 1 Dobbs, The Law of Torts, Aims,
Policies and Methods of Tort Law, Ch 1, Topic B, p 12 ff.
2
care for the safety of others.
2d, § 414, p 387.
The
common
See 2 Restatement of Torts
It deters undesirable conduct.
work
area
doctrine
arises
from
the
characteristics of common work areas and the efficiency of
imposing
responsibility
on
the
entity
that
has
responsibility over the entire area.
Funk v Gen Motors
Corporation,
NW2d
392
Mich
91,
104;
220
overruled in part on other grounds by
641
(1974),
Hardy v Monsanto
Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982).
Whether either of these doctrines applies in a given
case is a question of fact.
The majority affirms the trial
court’s
plaintiff
determination
that
failed
to
create
a
genuine issue of material fact on the third element of the
common
work
plaintiff
area
failed
doctrine.
to
The
establish
trial
that
court
there
was
held
a
that
danger
creating a high degree of risk to a significant number of
workers.2
Ante at 18.
The Court of Appeals held that
plaintiff presented evidence that other workers “would be
or had been working in the same area where plaintiff’s
injury occurred”.
255 Mich App 165, 188; 660 NW2d 730
(2003).
2
See Groncki v Detroit Edison Co, 453 Mich 644, 662;
557 NW2d 289 (1996) (Brickley, C.J.), citing Funk, supra at
104.
3
Plaintiff testified that a mason was working “right
below” him when the steel structure collapsed.
This is
evidence that other workers were in, around, and under the
structure while it was being erected.
It is reasonable to
infer that other workers would continue to be in, on, and
around it as construction continued.
not
built
competently,
an
If the structure were
extremely
dangerous
would exist that the structure would collapse.
condition
It is of no
moment that there happened to be only one worker in the
area at the time of the accident.
The Court of Appeals Decision is Correct
I
agree
with
the
testimony
is
sufficient
material
fact
regarding
workers
in
addition
to
Court
to
of
create
whether
the
a
mason
Appeals.
a
Plaintiff's
genuine
issue
of
significant
number
of
were
exposed
to
the
danger.
Moreover, plaintiff presented evidence that defendant
Capital Welding retained control over the manner in which
the work of Capital's subcontractor, Abray, was performed.
Capital’s field superintendent stated that he instructed
Abray's ironworkers on proper erection.
4
Plaintiff, Abray's
employee,
testified
that
Capital's
superintendent
instructed him on particular aspects of the job.3
The
Capital
contract
to
between
undertake
erection work.
Capital
safety
and
Monarch
precautions
for
obligated
the
steel
Capital’s field superintendent stated that
he had the authority to remove a contractor from the site
for
safety
violations.
Therefore,
Capital
retained
its
responsibility to ensure that the steel was erected safely
after
subcontracting
the
work
to
Abray,
plaintiff’s
employer.
An analogy between Funk and this case is appropriate.
Funk did not explicitly limit its reasoning to landowners
and general contractors.
The landowner there was liable to
its contractor's employee because it retained control over
the safety precautions implemented on the site.
at 107-108.
See Funk
In this case, plaintiff presented evidence
that Capital retained control over the methods and safety
procedures for Abray's erection of the steel.
Capital
stands
as
in
the
identical
position
landowner in Funk did as to Funk.
3
to
plaintiff
the
Accordingly, it was not
Plaintiff was told to fabricate lugs that would be
welded to the structure’s columns.
5
entitled to summary disposition on the proposition that it
could not be liable to its contractor's employee.
However, with respect to Monarch, plaintiff failed to
establish
that
Monarch
had
anything
oversight of the construction.
establish
liability
doctrine
Turner
(1993).
or
than
under
either
the
control
doctrine.
Co,
198
Mich
general
This is insufficient to
retained
the
Constr
more
App
478,
common
480;
work
area
Johnson
499
NW2d
v
27
Monarch was entitled to summary disposition.
Possible Unintended Results of the
DeShambo and Ormsby Decisions
DeShambo4
and
Ormsby
read
together
could
unfortunate unintended results in future cases.
have
Under the
tort reform statutes, with few exceptions, liability is no
longer joint but only several.
MCL 600.2956.
It is based
on
The
a
fault.
MCL
600.2957(1).
fault
of
party
is
determined by the trier of fact regardless of whether the
party can be held legally liable.
4
MCL 600.6304(1).
This case was argued and submitted together with
DeShambo v Anderson, 471 Mich
;
NW2d
(2004).
DeShambo holds that a landowner is not liable for an
independent
contractor’s
negligence
that
injures
an
employee of that contractor who is engaged in an inherently
dangerous activity.
Slip op at ___.
The analysis in
Ormsby could logically be extended to preclude liability of
a landowner under the combined common work area/retained
control doctrine as well.
6
However, an injured individual can recover only from a
party that can be held legally liable.
may
assign
fault
to
one
who
The trier of fact
engages
an
independent
contractor and then negligently directs the actions of that
contractor.
But
under
today's
decisions
in
Ormsby
and
DeShambo, such an employer, landowner or otherwise, could
not be held liable unless an injury occurs in a common work
area.
Hence,
employers
now
can
conceivably
escape
all
liability for their own negligence in a given accident.
I believe that this result is not consistent with the
principles underlying the common law.
also,
with
the
intent
of
the
tort
It is inconsistent,
reform
statutes.
A
negligent actor should be legally liable for his actions.
Because the majority's decision undermines this principle,
I disagree and would affirm the decision of the Court of
Appeals.
Marilyn Kelly
7
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