COA: 312141. Oakland CC: 2004-059653-NO. COA: 313606. Oakland CC: 2004-059653-NO.
Robert P. Young, Jr., Chief Justice. Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Justices. MARKMAN, J. (dissenting).
On March 10, 2015, the Court heard oral argument on the application for leave to appeal the February 4, 2014 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Markman, J. ( dissenting ).
I respectfully dissent from this Court's order denying defendant's application for leave to appeal. This case presents a significant issue arising from modern precedents in which this Court has departed from common-law understandings concerning the responsibilities of general contractors for the negligence of subcontractors and their employees. There has, in my judgment, been clear error here in applying these precedents and, accordingly, I would reverse the judgment of the Court of Appeals and remand to the trial court with instructions to grant summary disposition in favor of defendant.
Plaintiff was employed as a carpenter by subcontractor B& H Construction to work on the construction of a new high school, as to which project defendant served as the general contractor. Plaintiff was charged with the installation of dry wall on top of a mezzanine that was elevated 17 feet above the ground. Unlike every other worker to do work atop the mezzanine, plaintiff and a partner employed a scissors lift to elevate themselves and their materials onto the mezzanine. When the lift reached the proper height, plaintiff noticed that because it was parked at an angle, there was a gap between the mezzanine and the lift. Nonetheless, plaintiff and his partner decided to begin moving materials onto the mezzanine from the lift. While they were doing so, a piece of dry wall [497 Mich. 994] snapped, and plaintiff slipped through the gap and fell 17 feet, seriously and permanently injuring his feet. Plaintiff brought suit against defendant, relying on the " common work area" doctrine to assert his claim.
Other workers accessing the same mezzanine employed a ladder for this purpose and then used a forklift to raise their materials onto the mezzanine. This method did not require the use of fall protection equipment. However, the method used by plaintiff did require such equipment because it involved the possibility of having to traverse a gap between two platforms. Plaintiff's claim is that defendant failed to install hook points for an alternative " double lanyard" system that would have prevented his fall. Plaintiff, however, has presented no evidence (1) that any other subcontractor, or any of its workers (but for his partner), contemplated using the method that he employed to ascend to the mezzanine, (2) that any other employee ascended as he did without fall protection equipment, or (3) that as a result of these circumstances any other worker employed by any other subcontractor on the site was exposed to the same risk that led to his own injury.
Under the common law, plaintiff's claim clearly would have been barred because a general contractor " could not be held liable for the negligence of independent subcontractors and their employees." Ormsby v Capital Welding, Inc., 471 Mich. 45, 48, 684 N.W.2d 320 (2004). This Court, however, created an exception to the common-law rule, which is known as the " common work area" doctrine. Funk v Gen Motors Corp, 392 Mich. 91, 104; 220 N.W.2d 641 (1974). Under this exception, a general contractor can be held liable for the negligence of a subcontractor or its employees if the plaintiff can 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. [ Ormsby, 471 Mich. at 54.]
In creating this exception, this Court opined that " [p]lacing ultimate responsibility on the general contractor for job safety in common work areas will, from a practical, economic standpoint, render it more likely that . . . necessary precautions" will be implemented and " necessary safety equipment" provided, Funk, 392 Mich. at 104, while the dissent observed that the exception represented a " significant departure from time tested theories of tort liability" and that general contractors must be " prepared to assume responsibility for any injury received by the employee of a subcontractor, no matter how negligent the employee may be," id. at 116 (Coleman, J., dissenting).
It is not my intention to take issue with either the creation of the " common work area" exception in Funk or with the elaboration of this exception in the subsequent decisions of Ormsby and Latham v Barton Malow Co, 480 Mich. 105; 746 N.W.2d 868 (2008). Rather, it is my intention only to suggest that this Court bears a continuing obligation to the bench and bar, and to [497 Mich. 995] those businesses and employees engaged in the construction industry, to clearly limn the nature and breadth of the " common work area" exception. The exception is a product of this Court, and it is our responsibility to provide reasonable guidance about what we mean by it. The instant case illustrates well the confusion that the exception has generated.
In shaping the " common work area" doctrine, we have asserted that it is not to be applied in a manner that imposes strict liability. Latham, 480 Mich. at 113-114 (" To hold that the unavoidable height itself was a danger sufficient to give rise to a duty would essentially impose on a general contractor strict liability . . . . This has never been the law." ). Rather, " [i]n some instances, as to some risks, it will appear unwarranted to impose the responsibility on anyone other ...