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Dancer v. Clark Construction Co., Inc.

Supreme Court of Michigan

May 19, 2017

RONNIE DANCER and ANNETTE DANCER, Plaintiffs-Appellees,
v.
CLARK CONSTRUCTION COMPANY, INC., Defendant-Appellant, and BETTER BUILT CONSTRUCTION SERVICES, INC., Defendant-Appellee. COA 324314

         Kalamazoo CC: 2012-000571-NO

          Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder, Justices

          ORDER

         On April 13, 2017, the Court heard oral argument on the application for leave to appeal the April 26, 2016 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 question presented should be reviewed by this Court.

          Markman, C.J. (concurring).

         I concur in the Court's order denying leave to appeal because I agree with the Court of Appeals that genuine issues of material fact remain at this time that preclude summary disposition in defendant's favor. I write separately to afford whatever guidance I might in this difficult area of the law as to how this Court should define the "danger creating a high degree of risk" for purposes of the "common work area" doctrine.

         The "common work area" doctrine constitutes an exception to the common-law rule that a general contractor is not liable for the negligence of its subcontractors. Ormsby v Capital Welding, Inc, 471 Mich. 45, 55-56 (2004). In order to recover from a general contractor, a plaintiff must show all of the following:

(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 v Barton Malow Co, 480 Mich. 105, 109 (2008) (Latham I).]

         This Court asked the parties in the instant case to brief whether there is a genuine issue of material fact as to element three of the "common work area" doctrine. Dancer v Clark Constr Co, 500 Mich. ___ (2016).

         The threshold question in examining this third element is "[w]hat was the danger creating a high degree of risk that is the focus of the general contractor's responsibility?" Latham I, 480 Mich. at 113. Only after properly classifying this relevant "danger" can a court determine whether it posed a risk to "a significant number of workers." The difficulty is in determining how broadly or narrowly to define this "danger." As I previously stated in opposition to an order denying leave to appeal, I believe the Court when making this determination

must take cognizance of at least the following: (1) the breadth of the risk that the plaintiff faced in terms of calculating the number of uninjured workers who were exposed to the same risk and (2) the proper level of generality by which to characterize and define the specific risk incurred by the plaintiff and thereby to calculate the number of uninjured workers who were exposed to that same risk. To overgeneralize the risk and define it in an excessively broad manner is to threaten "strict liability" applications of the exception, and the expansion of the exception to a point at which it displaces the general rule; therefore, the risk must be circumscribed more narrowly than the mere risk posed by heights. However, to define the nature of the risk overly specifically, and in an excessively narrow manner, is to render the exception increasingly irrelevant . . . . [Latham v Barton Malow Co, 497 Mich. 993, 995-996 (2015) (Markman, J., dissenting) (Latham II).]

         The principal case addressing this issue is Latham I. In Latham I, 480 Mich. at 108, the plaintiff was injured when he fell 13 to 17 feet off of a mezzanine that lacked perimeter protection. At the time of the injury, the "plaintiff was not wearing a fall-protection harness, contrary to job-site rules of which he was aware, " and it was undisputed that the harness would have prevented the plaintiff's fall. Id. This Court held that the relevant "danger" was not merely working from a dangerous height, since this is an "unavoidable condition of construction work." Id. at 113-114. Rather, the "danger" was properly characterized as "working at heights without fall-protection equipment." Id. at 114 (emphasis altered).

         While not expressly stated in this manner, Latham I indicates that the appropriate scope of the "danger" addressed in the third element must encompass the worker's use of-- or failure to use-- equipment available in seeking to ameliorate an unavoidable danger inherent in the work environment. Such a formulation of the relevant "danger" properly focuses on the steps taken by the contractor to protect the workers from unavoidable dangers inherent at a construction site. See Funk v Gen Motors Corp, 392 Mich. 91, 104 (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 . . . necessary precautions" will be implemented and "necessary safety equipment" provided.). In Latham I, 480 Mich. at 114, we explained that "[i]f a hazard cannot be removed, the general contractor can take reasonable steps to require workers to use safety equipment and procedures, thereby largely reducing or eliminating the risk of harm in many situations." The Court then concluded that the "danger" was "working at heights without fall-protection equipment." Id. (emphasis altered). Accordingly, this Court defined the "danger" to take into consideration the safety equipment available to the worker engaging in the conduct that exposed him or her to an unavoidable danger inherent in a construction site.

         In the instant case, plaintiff fell 35-40 feet off of a scaffold that was made with unsecured planks lacking supporting bridges and outriggers. The unavoidable danger that led to plaintiff's injury was working at a dangerous height. The scaffold was the platform provided for the workers to walk on while working at a dangerous height, and there was fall-protection equipment available that plaintiff could have worn, but he did not do so. Therefore, the asserted "danger" here was working at a dangerous height without fall-protection equipment on a scaffold that was made with unsecured planks lacking supporting bridges and outriggers. Because there are genuine issues of material fact as to: (a) the number of workers who used the scaffold without fall-protection equipment, (b) whether the general contractor was negligent in constructing the scaffold in that manner, (c) whether the general contractor failed to take reasonable steps to ensure that the fall-protection equipment was, in fact, used, and (d) whether this negligence contributed to plaintiff's injury, summary disposition is inappropriate.

         Defendant argues that plaintiff created the relevant "danger" by improperly overlapping the planking in a manner that led to his fall. Defendant reasons that because plaintiff created that danger and no other workers were exposed to that danger-- as the improperly overlapped planking fell when plaintiff did-- a significant number of ...


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