Macomb Circuit Court LC No. 2007-001010-NO.
UNPUBLISHED January 7, 2010
APPROVED FOR PUBLICATION April 8, 2010
Before: METER, P.J., and BORRELLO and SHAPIRO, JJ.
In this premises liability action, plaintiffs*fn1 appeal by right following the trial court's grant of defendant's motion for summary disposition under MCR 2.116(C)(10) and dismissal of plaintiffs' complaint with prejudice. We affirm in part, reverse in part, and remand for further proceedings.
I. SUMMARY OF FACTS AND PROCEEDINGS
Plaintiff was injured on May 31, 2006 when he fell through a trapdoor opening*fn2 in a mezzanine walkway found in defendant's Sterling Heights plant. At the time of the accident, plaintiff was working on a renovation project at the plant and was employed by Durr Systems (Durr) as a millwright. Defendant hired Durr to change over a multitude of conveyor components that are used on the paint line of the assembly plant. Plaintiff testified that he was the supervisor for the millwrights working on the project and had been working on-site for roughly two to three weeks, between six and seven days a week. Prior to this assignment, plaintiff had been to this plant on five or six occasions to do preliminary work for this job. Defendant's plant was on shutdown while Durr was completing the work, and plaintiff did not report to an employee of defendant during his time working at the plant.
One of the conveyors that the Durr employees were working on could only be accessed from the mezzanine. Plaintiff indicated that he was familiar with the area within defendant's plant where he was working, including the mezzanine area. Plaintiff testified that during his time on this job, he had been on the mezzanine often, climbing the stairs roughly three or four times a day prior to the incident in order to check the progress of the work being done. Plaintiff acknowledged that he knew there were grates that could be removed in the mezzanine area because he had seen some removed in other parts of the plant. Plaintiff was also familiar with similar grate systems in other plants he had worked in. Plaintiff knew that the Durr employees would need to lift or hoist some products to the mezzanine, and he stated that occasionally the products are lifted through removed sections of the grating.
On the night of the incident, plaintiff walked up the stairs to the mezzanine in order to distribute paychecks. According to plaintiff, Mike Perry, the ironworker foreman, walked up the stairs behind plaintiff. Regarding the fall, plaintiff testified that he "went up the staircase and went to my right as I got to the top of the staircase, and that's all I remember . . . the next thing I know, I was laying on the floor." Plaintiff did not recall seeing anyone on the mezzanine before his fall and he did not recall looking down. Plaintiff was wearing safety glasses and a hard hat at the time he fell. When plaintiff awoke, he was laying on the ground. Plaintiff was told after the fall that the "Perry boys," a group of cousins that worked as ironworkers for Durr, may have moved a section of grate from the floor.
One of the Perry boys, Lonnie Perry, worked as an ironworker at Durr on the date of plaintiff's incident. Lonnie stated that he heard plaintiff tell his cousin, Mike Perry, that a section of the conveyor would need to be lifted through the grating. Lonnie testified:
And, Mike told us, me and Randy Perry, to go up the stairwell to see if we could get the grating open so we could shoot a small piece of conveyor end in up though the grating. And I looked and I seen there wasn't . . . no safety tape or anything such as that, so I told the steward that we needed some red tape. And, he said he didn't have any, but he would go look. So, then I and Randy walked up the stairwell, identified the piece of grating where we needed to shoot the rig through with the piece. And, it was all phosphated, all gluey, pretty sticky; didn't believe we could ever get it open. Randy was standing in front of me; I bent over at the-the left edge of it; I put my pry bar in there and I got it to come open, surprisingly, and found out it was, actually, even on hinges. And, just-I no more than opened it, my-I was looking towards my cousin Randy, his eyes got big, I heard the grating rattle; I looked and [plaintiff] had walked right by me, right into the hole and all I could see was his eyes of terror going to the ground. And, it was just that quick. [Plaintiff] had been walking and he had followed me right up the stairwell. I didn't realize it. And, he had a handful of checks in his hand and he was just getting ready to go down the conveyor to hand out checks to-to his employees, his millwrights. And, as soon as I heard the rattle, I seen his eyes and I seen checks flying everywhere . . . and I watched him go to the ground and hit the gang box. He bounced off a set of torches and a gang box and laid there unconscious.
Lonnie said that the grating was open "two tenths of a second, possibly" before plaintiff stepped into the hole. Michaeline Cartwright, who worked as a safety coordinator for Durr from 2004 to 2006, documented that the grating had been opened "for less than ten seconds."
Cartwright testified that on the night of the incident, she spoke to one of defendant's employees, Nick Juncaj, who was temporarily working as the UAW safety representative. Juncaj testified that he filled in for the regular safety representative for five weeks, beginning on May 19, 2006. According to Cartwright, Juncaj stated that there had been two other accidents at the same location within the past three years. However, at his deposition, Juncaj denied knowing of any prior accidents and he did not recall telling Cartwright of other injuries in this area. Juncaj testified that he had worked at the Sterling Heights plant since 1991, full time since 1994. Pat Christie, defendant's safety supervisor, testified that the hinged sections on the mezzanine have been used "time and again." Christie also indicated that he had no knowledge of other accidents with people falling through the hinged section of the mezzanine floor.
Plaintiffs originally sought relief under both premises liability, based on defendant's ownership of the premises, and contractor liability, under the retained control doctrine on the theory that defendant had retained control over the renovation project. See Ormsby v. Capital Welding, Inc, 471 Mich 45, 60; 684 NW2d 320 (2004). However, plaintiffs stipulated to dismissal of this latter claim, as well as its claim predicated on the inherently ...