state of michigan ronnie dancer and annette dancer, construction services, inc., · 2017-02-07 ·...
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STATE OF MICHIGAN
IN THE SUPREME COURT RONNIE DANCER and ANNETTE DANCER, Plaintiffs-Appellees, Supreme Court No. 153830 v Court of Appeals No. 324314 CLARK CONSTRUCTION COMPANY, INC., Kalamazoo County Circuit Court a Michigan corporation, and BETTER BUILT No. 2012-0571-NO CONSTRUCTION SERVICES, INC., a foreign corporation Defendants-Appellants. / DONALD M. FULKERSON (P35785) NATHAN PEPLINSKI (P66596) Attorney of Counsel for Plaintiffs-Appellees Harvey Kruse, PC PO Box 85395 Attorneys for Defendant Clark Const Westland, MI 48185 1050 Wilshire Drive, Suite 320 (734) 467-5620 Troy, MI 48084 [email protected] (248) 649-7800 [email protected] DAVID A. PRIEHS (P39606) Law Offices of David A. Priehs TYREN R. CUDNEY (P46638) Attorney for Plaintiffs RON W. KIMBREL (P32786) 30300 Northwestern Hwy, First Floor Lennon, Miller, O’Connor & Farmington Hills, MI 48334 Bartosiewicz, PLC (248) 932-0100 Attorneys for Defendant Better Built [email protected] 151 S. Rose Street, Suite 900 900 Comerica Building Kalamazoo, MI 49007 (269) 381-8844 [email protected] [email protected] /
PLAINTIFFS-APPELLEES’ CORRECTED SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT-APPELLANT CLARK
CONSTRUCTION COMPANY, INC’S APPLICATION FOR LEAVE TO APPEAL
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TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
I. AMPLE EVIDENCE RAISES A GENUINE ISSUE OF MATERIAL FACT THAT A SIGNFICANT NUMBER OF WORKERS FACED THE SAME RISK PRESENTED BY THE UNSUPPORTED AND UNSECURED WOODEN PLANKS ON THE SCAFFOLD, WITHOUT ENFORCEMENT OF APPLICABLE FALL- PROTECTION RULES, WHICH PROXIMATELY CAUSED MR. DANCER’S FALL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. Mr. Dancer fell, and Mr. Koshurin nearly fell, due to
unsecured and unsupported wooden planks comprising the scaffold’s work platform. Managing employees of Defendants and Dancer’s employer Leidal & Hart, along with Defendants’ expert, establish that the failure to secure and support the planks violated the site’s safety rules and created a readily observable and avoidable danger. The unsecured and unsupported planks constituted the operative hazard which, along with failure to enforce the fall- protection requirement (if applicable), proximately caused Mr. Dancer’s fall. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. Defendants increased the hazard by failing to enforce,
when applicable, the mandatory six-foot fall-protection rule for workers on the scaffold. . . . . . . . . . . . . . . . . . . . . . . 18
C. Evidence raises a genuine issue of material fact that
a significant number of workers faced the same risk created by the unsecured and unsupported planks, without use (when required) of fall-protection equipment, which proximately caused Mr. Dancer’s fall. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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D. None of Clark’s arguments, including the allegation that Mr. Dancer created and exclusively encountered the only fall risk by misaligning the planks, support reversing he Court of Appeals’ decision and reinstating the summary disposition order. . . . . . . . . . . . . . 23
II. EVIDENCE READILY RAISES A MATERIAL FACT QUESTION
ESTABLISHING THAT BOTH BEFORE AND AFTER MR. DANCER’S FALL, EMPLOYEES OF TWO OR MORE SUBCONTRACTORS USED THE SCAFFOLD ESTABLISHING THAT IT CONSTITUTED A COMMON WORK AREA UNDER MICHIGAN LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
RELIEF REQUESTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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INDEX OF AUTHORITIES Page(s)
Cases Cited Candelaria v BGC General Contractors, Inc, 236 Mich App 67;
600 NW2d 348 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Clark v Seagrave Fire Apparatus, Inc, 170 Mich App 147; 427 NW2d 913 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Craig ex rel Craig v Oakwood Hosp, 471 Mich 67; 684 NW2d 296 (2004) . . . . . . 17 Debeul v Barton Malow Corp, unpublished opinion per curiam of the
Court of Appeals, issued February 15, 2011 (Docket No. 296094) (Ex 1 to this supplemental brief) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Faulman v American Heartland Homebuilders, LLC, unpublished opinion
per curiam of the Court of Appeals, issued January 4, 2007 (Docket No. 269287) (Clark Appx 21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Fultz v Union–Commerce Assoc, 470 Mich 460; 683 NW2d 587 (2004) . . . . . . . 13 Groncki v Detroit Edison Co, 453 Mich 644, 663; 557 NW2d 289 (1996) . . . . . . . 6,29 Helmus v Dep't of Transportation, 238 Mich App 250; 604 NW2d 793 (1999) . . . 17 Hughes v PMG Building, Inc, 227 Mich App 1; 574 NW2d 691 (1997) . . . . . 20,29,30,32 Innovation Ventures v Liquid Manufacturing, 499 Mich 491;
885 NW2d 861 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Kopp v Zigich, 268 Mich App 258; 707 NW2d 601 (2005) . . . . . . . . . . . . . . . . . 33 Laier v Kitchen, 266 Mich App 482; 702 NW2d 199 (2005) . . . . . . . . . . . . . . . . 19 Latham v Barton Malow Co, 480 Mich 105; 746 NW2d 868 (2008) . . . . . . . . . . passim Latham v Barton Malow Co, unpublished opinion per curiam of the
Court of Appeals, issued February 4, 2014 (Docket Nos. 312141, 313606), lv den after MOA, 497 Mich 993 (2015) (Ex W) . . . . . . . . . . . . 21,27-28
Nichols v Dobler, 253 Mich App 530; 655 NW2d 787 (2002) . . . . . . . . . . . . . . . 17 Ormsby v Capital Welding, Inc., 471 Mich 45; 684 NW2d 320 (2004) . . . . . . . . passim O’Neal v St John Hosp, 487 Mich 485; 791 NW2d 853 (2010) . . . . . . . . . . . . . . 17
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Richter v American Aggregates Corp, 522 F Appx 253 (CA 6, 2013) (Ex Z) . . . . 21 Rodriguez v Solar of Mich, Inc, 191 Mich App 483; 478 NW2d 914 (1991) . . . . . 19 Romain v Frankenmuth Mutual Ins Co, 483 Mich 18; 762 NW2d 911 (2009) . . . . 33 Schmeling v Whitty, unpublished opinion per curiam of the Court of
Appeals, issued February 15, 2011 (Docket Nos. 292190, 292740) (Ex 2 to this supplemental brief) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34
Swartz v Dow Chemical Co, 414 Mich 433; 326 NW2d 804 (1982) . . . . . . . . . . . 34 Shepard v M & B Construction, LLC, unpublished opinion
per curiam of the Court of Appeals, issued September 19, 2006 (Docket No. 261484) (Ex Y) . . . . . . . . . . . . . . . . . . . 6,20
Skinner v Square D Co, 445 Mich 153; 516 NW2d 475 (1994) . . . . . . . . . . . . . . . 10,24 Smith v Globe Life Ins Co, 460 Mich 446; 597 NW2d 28 (1999) . . . . . . . . . . . . . . 10,24 Sprague v Toll Bros, 265 FSupp2d 792 (ED Mich, 2003) . . . . . . . . . . . . . . . . . . . 34 Wingard v Nutro Corp, unpublished opinion per curiam of the
Court of Appeals, issued March 7, 2007 (Docket No. 262893) (Ex 3 to this supplemental brief) . . . . . . . . . . . . . . . 34
Statute Cited MCL 418.131. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Court Rules Cited MCR 2.116(C)(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,24 MCR 2.116(G)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 MCR 2.116(G)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 MCR 7.215(C)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Other Authority Cited
MIOSHA R408.40631 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,19
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JURISDICTIONAL STATEMENT
Plaintiffs-Appellants file this supplemental brief pursuant to the Supreme Court’s
December 21, 2016 MOA order.
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STATEMENT OF QUESTIONS PRESENTED
I. Whether ample evidence raises a genuine issue of material fact that a significant number of workers faced the same risk presented by the unsupported and unsecured wooden planks on the scaffold, without enforcement of applicable fall-protection rules, which proximately caused Mr. Dancer’s fall.
Plaintiffs-Appellees state: Yes.
Defendant-Appellant Clark states: No.
The trial court states: No.
The Court of Appeals majority states: Yes.
The Court of Appeals dissent states: No.
II. Whether evidence readily raises a material fact question that,
both before and after Mr. Dancer’s fall, employees of two or more subcontractors used the scaffold establishing that it constituted a common work area under Michigan law.
Plaintiffs-Appellees state: Yes.
Defendant-Appellant Clark states: No.
The trial court states: No.
The Court of Appeals majority states: Yes.
The Court of Appeals dissent states: No.
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INTRODUCTION
On August 9, 2010, Ronnie Dancer was catastrophically injured when he fell
through wooden planks comprising a work platform spanning a row of three Hydro
Mobile mast climbing units at the Fort Custer construction site. The work platform also
has been described as the “scaffold.” Mr. Dancer fell when the wooden planks which, in
violation of the site’s safety requirements, were not only unsecured but were stretched
across an eight to ten foot gap between the two of Hydro Mobile units without being
supported underneath by available bridges and outriggers, shifted and rose up. He fell
through the unsupported gap, approximately 38 feet to the ground.
Plaintiffs-Appellees, Mr. Dancer and his wife Annette (Plaintiffs), filed suit against
the co-general contractors at the Fort Custer site, Defendants-Appellants Clark
Construction Company (Clark) and Better Built Construction Services (BBCS)
(collectively: Defendants). Venue was transferred to the Kalamazoo Circuit on
September 27, 2012.
Plaintiffs allege that Defendants are liable under the common work area doctrine.
The elements of a common work area claim are: “(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; 746 NW2d 868 (2008); Ormsby v Capital Welding, Inc,
471 Mich 45, 54; 684 NW2d 320 (2004). Citing, in part, the testimony of Defendants’
own managers and expert, Tom Destafney, as well as the testimony of supervisors and
the owner of Mr. Dancer’s employer, Leidal & Hart, Plaintiffs assert Defendants are
liable because:
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1. They failed to take reasonable steps within their supervisory and
coordinating authority to enforce safe construction and use of the scaffold. Latham,
supra; Ormsby, supra. Defendants admittedly had supervisory and coordinating
authority over safety at the Fort Custer site. (Waterman dep, 8:4-8:13, 14:5-14:18,
15:16-15:19, 106:5-108:6– Ex A; Hanson dep, 92:2-97:23, 129:7-129:21 – Ex B;
Schaibly dep, 12:10-12:17, 24:15-25:12, 135:18-135:20, 165:13-165:19, 166:4-166:6,
168:4-168:20 – Ex C; Destafney dep, 27:1-27:12, 28:11-28:15, 45:12-45:19, 45:25-46:3,
59:18-60:3 – Ex D).1 Defendants conceded this fact below. (Tr 7/21/14, pp 26-27 –
Clark Appx 22).
In turn, Defendants failed to take reasonable steps within their supervisory and
coordinating authority to enforce EM 385-1-1, which Clark, BBCS and Leidal & Hart
concede governed safe operation of the Hydro Mobile scaffold. (Waterman dep, 8:4-8:8,
14:5-14:18, 15:2-15:7, 106:5-107:10, 107:15-108:6 – Ex A; Hanson dep, 92:2-97:23 –
Ex B; Schaibly dep, 7:16-7:18, 12:10-12:24, 135:18-135:20 – Ex C; Destafney dep,
31:22-32:7, 45:25-46:3, 102:4-102:23 – Ex D; Leidal dep, 5:23-6:1, 6:23-6:25, 26:25-
27:2, 29:11-29:25, 62:14-62:18 – Ex J; Kyewski dep, 54:7-54:15 – Ex K). Site Safety &
Health Officer (SSHO) Cory Hanson, a BBCS’ employee, was not only woefully
unqualified, (Destafney dep, 33:17-34:6, 38:2-38:6, 44:15-44:23, 95:25-96:8, 97:9-97:14
– Ex D; Schaibly dep, 30:14-30:23, 51:17-51:18 – Ex C; Waterman dep, 39:21-40:10 –
Ex A), but, instead of monitoring safe operation of the scaffold and enforcing fall-
protection requirements, stayed in his trailer most of the time looking for another job and
planning his marijuana-growing scheme. (Waterman dep, 24:11-24:22, 35:25-36:19,
1 Unless otherwise indicated, all cited exhibits are attached to Plaintiffs’ August 5, 2016 answer to Clark’s application for leave to appeal (No. 153830).
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40:16-42:14, 44:25-45:1, 45:25-46:1, 58:10-58:22, 61:18-61:22, 70:24-70:1 – Ex A;
Schaibly dep, 15:9-15:13, 16:5-16:15, 20:18-20:21, 30:24-31:17, 51:9-51:14 – Ex C;
Martin dep, 80:5-80:7 – Ex G). Hanson would not complete mandatory daily safety
reports and failed to hold “any” safety meetings. (Waterman dep, 23:13-23:17, 40:11-
42:22, 62:10-62:19 – Ex A; Allen dep, 11:12-11:21 – Ex I; Martin dep, 6:6-7:22, 77:9-
77:11 – Ex G).2 Cory Hanson himself admits that, if he observed that the scaffold
planks were not secured and failed to enforce EM 385, he would have been “negligent.”
(Hanson dep, 129:7-129:21 – Ex B; emphasis added).
As for Clark, its safety supervisor, Don Volk, came to the site only about once a
month. (Waterman dep, 51:19-51:21 – Ex A). One of Clark’s project managers, Mike
Shekaski, spent work hours staging Texas hold ‘em tournaments and managing car-
rental and real estate businesses he was running on the side. (Waterman dep, 28:24-
30:10 – Ex A; Schaibly dep, 35:16-36:15, 40:5-40:8 – Ex C). In addition, Clark
superintendent Schaibly and several other witnesses establish that, despite knowing
that scaffold users did not wear fall protection, Defendants never enforced the project’s
mandatory six-foot fall-protection requirement.3 (Schaibly dep, 77:6-77:10 – Ex C; see
also Destafney dep, 88:15-88:24, 105:5-106:15 – Ex D; Martin dep, 23:5-23:8 – Ex G;
Koshurin dep, 10:17-10:24, 11:3-11:5, 12:18-12:24, 13:16-13:20 14:13-14:17 – Ex H;
Allen dep, 38:13-38:23 – Ex I; Leidal dep, 67:19-67:24 – Ex J; Johnson dep, 54:13,
99:2-99:9 – Ex M). All of this prompted Clark superintendent Schaibly to concede that 2 Even after electrician Koshurin nearly fell due to unsupported and unsecured wooden planks on the scaffold and insisted Hanson correct the hazard, Hanson still failed to take any steps to enforce safe construction and use of the scaffold. (Koshurin dep, 17:20-18:24, 19:11-21:2, 23:11-23:15, 53:16-53:19 – Ex H). 3 Both EM 385-1-1 and MIOSHA regulations required use of fall protection equipment above elevations of six feet. (EM 385, p 21-1 ¶ 21.A – Ex F; MIOSHA R408.40631).
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this was a “bad” job, “one of the worst jobs that I have been a part of . . . it was bad.”
(Schaibly dep, 34:19-35:3 – Ex C).
2. Operation of the scaffold without securing the wooden planks and
supporting them in the eight-ten-foot gaps with bridges and outriggers, and the fact that
workers on the scaffold, when required, did not use fall-protection devices, were “readily
observable and avoidable dangers.” Latham, supra; Ormsby, supra. It is uncontested
that, in violation of EM 385-1-1 and the Hydro Mobile manual, Leidal & Hart failed to
secure the wood planks and failed to install bridges and outriggers to support the planks
in the gaps between the scaffold units. (EM 385, pp 22-6, 22-7, ¶¶ 22.BV.08.(2).c,
22.B.08.(2).h – Ex F; Photo, p 2 – Ex O; EM 385, p 22-44, ¶ 22.N.01 – Ex F; Stewart
dep, 39:7-40:5 – Ex P; Martin dep, 104:18-104:20 – Ex G; Johnson dep, 94:1-94:3,
119:6-119:13 – Ex M; Destafney dep, 45:25-46:3, 77:12-77:18, 102:4-102:23, 105:5-
107:13 – Ex D; Kyewski dep, 53:11-54:15 – Ex K; Wright, 37:22-39:12, 45:20-45:24,
48:6-48:12 – Ex E). Clark superintendent Schaibly and defense expert Destafney admit
that the absence of extended outriggers across the entire span of the scaffold units and
Leidal & Hart’s failure to secure the planks constituted a visible hazard that BBCS
SSHO Hanson would have seen had he bothered to leave his trailer and inspect the
scaffold unit. (Schaibly dep, 77:14-77:18, 163:22-164:20 – Ex C; Destafney dep, 49:24-
50:3, 105:5-106:10, 107:6-107:18, 109:21-110:2 – Ex D). The hazard of workers not
using fall-protection (if required) was also readily apparent. (Schaibly dep, 77:6-77:13 –
Ex C; see also Martin dep, 23:5-23:8 – Ex G; Leidal dep, 67:19-67:24 – Ex J; Johnson
dep, 54:13, 99:2-99:9 – Ex M; Koshurin dep, 10:17-10:24, 11:3-11:5, 12:18-12:24,
13:16-13:20 14:13-14:17 – Ex H).
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These hazards were easily “avoidable.” Leidal & Hart owned several Hydro
Mobile bridges of various sizes. (Leidal dep, 44:14-44:24 – Ex J; Kyewski dep, 47:13-
47:23, 48:5-48:10 – Ex K; Martin dep, 54:24-54:25, 65:14-65:24 – Ex G). Leidal & Hart
safety director Kyewski admits that (a) devices to secure the planks were available, and
(b) their installation would not have been difficult or slowed production. (Kyewski dep,
54:24-55:22 – Ex K). Glenn Johnson testifies that use of bridges and outriggers over
the gap where Plaintiff fell would have possibly prevented this accident. (Johnson dep,
117:8-117:11 – Ex M). In addition, Defendants do not dispute that they could have
avoided the concurrent risk by enforcing, when applicable, the fall-protection
requirements.
3. Operation of the scaffold with unsupported and unsecured planks and
non-enforcement of the six-foot fall-protection requirement on the scaffold “created a
high degree of risk to a significant number of workers.” Latham, supra; Ormsby, supra.
It is unrebutted that, before and after this accident, at least fifteen employees of several
contractors used the scaffold and were exposed to the same risk of the unsecured
planks laid across the 8-10 foot gaps without supporting bridges and outriggers.
(Koshurin dep, 7:7-7:8, 9:11-10:16, 13:4-13:11, 14:25-15:8, 24:19-24:22, 46:23-47:1,
52:20-53:1 – Ex H; Allen dep, 5:2-7:3, 6:18-6:21, 7:16-9:13, 10:1-10:7, 37:4-37:7, 38:1-
38:24, 54:5-55:1 – Ex I; Martin dep, 74:8-74:20 – Ex G; Kyewski dep, 46:5-46:10 – Ex
K; Johnson dep, 13:16-14:11, 17:21-18:1 – Ex M; Dancer dep 1, 18:23-19:2 – Ex R;
Johnson dep, 112:5-112:25, 113:7-113:9, 119:14-119:21, 122:11-122:15 – Ex M;
Schaibly dep, 74:4-75:3 – Ex C; Hanson dep, 152:19-152:24, 178:5-178:20 – Ex B;
8/10/10 memo – Ex T). As indicated above, the six-foot fall-protection rule, when
applicable, was never enforced for any of these workers. Our courts have held that the
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presence of eight or more workers raises a genuine issue of material fact satisfying
element three of the common work area doctrine. Shepard v M & B Construction, LLC,
unpublished opinion per curiam of the Court of Appeals, issued September 19, 2006
(Docket No. 261484) (Ex Y, p 3, *4); Latham, supra, 480 Mich at 121 (approximately a
dozen individuals raises a material fact question). Certainly, at least fifteen workers
facing the risk presented by the unsupported and unsecured planks, without applicable
fall-protection enforcement, more than satisfies this requirement.
4. Since employees of two or more subcontractors undisputedly worked on
the scaffold before and after Mr. Dancer’s fall, it constituted a “common work area”
under the definition in Groncki v Detroit Edison Co, 453 Mich 644, 663; 557 NW2d 289
(1996). As shown, a total of at least fifteen employees of multiple subcontractors
(Leidal & Hart, Henry Electric, Shepherd Electric, Szydlowski Plumbing, and the heating
and cooling contractor) worked on the scaffolding before and after the accident well
above six feet and faced the same fall risk created by the unsecured and unsupported
planks over the 8-10 foot gaps. Despite electrician Koshurin’s near fall due to the
unsupported and unsecured planks two weeks before Mr. Dancer’s accident, and
despite Dancer’s catastrophic fall due to the same hazards which violated EM 385-1-1
and the Hydro Mobile manual, Defendants continued to permit Leidal & Hart to operate
the scaffold’s planking in the same manner. Moreover, because, under both EM 385-1-
1 and MIOSHA, the fall risk remained the same at any elevation above six feet, the fact
that the scaffold was raised and lowered or moved to construct each wall of the
structure did not change the nature of the risk. The scaffold created the same risk of
harm and was a common work area at the time Mr. Dancer fell.
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Defendants moved for summary disposition, arguing that Plaintiffs did not raise a
genuine issue of material fact meeting elements two through four of the common work
area doctrine. Defendants’ motions for summary disposition failed to raise any
argument that Plaintiffs did not met element one. (BBCS MSD; Clark MSD; 9/3/14
opinion & order, p 3 – Clark Appx 3). At the July 21, 2014 hearing, Clark conceded,
without BBCS’ disagreement, that the first element of the rule was not in dispute. (Tr
7/21/14, pp 26-27 – Clark Appx 22).
On September 3, 2014, the trial court issued an opinion and order granting
Defendants’ motions for summary disposition. (9/3/14 order – Clark Appx 3). The court
held that “Plaintiff has presented evidence that could create a genuine issue of material
fact regarding whether there was an existence of a readily observable, avoidable
danger,” but concluded that “Plaintiff has failed to satisfy the common work area
doctrine.” (Id, pp 3, 5). The court accepted Defendants’ argument that Mr. Dancer
“created the dangerous condition when he chose not to wear his fall protection device
and when he improperly overlapped the planks.” (Id, p 4). The court held that “there
was not a high degree of risk to a significant number of workers and there was not an
existence of a common work area.” (Id, p 3).
On April 26, 2016, the Court of Appeals issued an unpublished, 2-1 decision
reversing the summary disposition order. The majority agreed with the trial court that
“the bridging of the gaps between the scaffolding units with unsecured planks” was an
“actionable” and “readily observable hazard.” (COA majority opinion, p 9 n 6 – Clark
Appx 1). The majority held that, since employees of other subcontractors used the
scaffold at hazardous elevations of at least 14 feet, “the trial court erred in concluding
that the scaffold was not a common work area when plaintiff fell solely because plaintiff
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fell from an elevation that only he and his fellow Leidal & Hart employees reached.” (Id,
p 4).
Next, the majority rejected the trial court’s conclusion that “evidence did not
support the proposition that the allegedly hazardous condition placed a significant
number of workers at risk,” explaining that, whether or not Dancer was alone on the
scaffold when he fell, “plaintiffs plausibly assert that the evidence supports the
conclusion that at least 15 workers” (of different subcontractors), including electrician
Koshurin who nearly fell due to the same dangerous condition, “were placed at risk by
the hazard at issue” (the unsecured and unsupported planks). (Id, pp 6-7). Under
Michigan law, this “established a question of material fact whether a significant number
of workers occupied the allegedly unsafe scaffolding.” (Id).
The majority then reversed the trial court’s ruling that, as a matter of law, Mr.
Dancer created the hazard that caused his fall and was the solely responsible for his
injuries for failing to wear fall protection and improperly overlapping the planks, because
there is evidence that:
1. Plaintiff was not required to wear fall protection since, at the time he fell, he was walking on the scaffold while enclosed by guardrails, (id, p 7);
2. “[A] cavalier attitude about fall protection prevailed at the
construction project …, (id, p 8); 3. Even accepting that Dancer moved the planks before he fell,
“evidence of an earlier near occurrence of a similar fall belies the suggestion that plaintiff himself created a uniquely dangerous condition, and suggests that the work surface in question, with its reliance on unsecured planks to bridge gaps, where frequent adjustment of the planks was necessary as the surface was raised or lowered, was dangerously unstable by its nature,” (id, p 9).
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Ruling that this case raises material fact questions on the “questions of duty, breach,
and comparative negligence for resolution at trial,” the Court of Appeals reversed the
summary disposition order. (Id, pp 9-10).
Judge Wilder dissented, stating that “plaintiff was not injured in the ‘same’ area
where employees of two or more subcontractors had worked; rather, he was injured in
an area where the employees of only one subcontractor, Leidal & Hart, had worked;”
and complaining that “[t]he majority’s contrary conclusion is a step toward imposing
strict liability on general contractors for all hazards on construction sites.” (Dissent, p 2
– Clark Appx 2).
Arguing that Plaintiffs have not raised a material fact question meeting any of the
four elements of the common work area doctrine, Defendants filed applications for leave
to appeal in the Supreme Court (Clark App, No. 153830; BBCS App, No. 153889). On
December 21, 2016, this Court entered an order, in appeal no. 153830 only, directing
the Clerk to schedule a MOA and ordering the parties to “file supplemental briefs within
42 days of the date of this order addressing whether the plaintiffs presented sufficient
evidence to establish genuine issues of material fact with regard to the common-work-
area doctrine’s ‘element three, danger creating a high degree of risk to a significant
number of workmen, and element four, a common work area.’ Ormsby v Capital
Welding, Inc, 471 Mich 45, 58-59 (2004).” (12/21/16 Order). The MOA order does not
apply to BBCS’ application in appeal no. 153889, which remains pending. (Id).
Plaintiffs now submit their supplemental brief. For the reasons presented in
Plaintiffs’ August 5, 2016 response to Clark’s application and in this supplemental brief,
ample evidence raises a genuine issue of material fact satisfying elements three and
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four of the common work area doctrine. Clark’s application for leave to appeal, as well
as BBCS’ application in appeal no. 153889, should be denied.
ARGUMENT
I. AMPLE EVIDENCE RAISES A GENUINE ISSUE OF MATERIAL FACT THAT A SIGNFICANT NUMBER OF WORKERS FACED THE SAME RISK PRESENTED BY THE UNSUPPORTED AND UNSECURED WOODEN PLANKS ON THE SCAFFOLD, WITHOUT ENFORCEMENT OF APPLICABLE FALL-PROTECTION RULES, WHICH PROXIMATELY CAUSED MR. DANCER’S FALL.
The Court of Appeals correctly held that ample evidence, particularly when
construed along with reasonable inferences in the light most favorable to Plaintiffs,4
raises a genuine issue of material fact that a significant number of workers faced the
same risk which proximately caused Mr. Dancer’s fall. (COA majority opinion, pp 6-7 –
Clark Appx 1). Since Mr. Dancer fell when one or more unsecured and unsupported
planks laid across one of the gaps shifted and flipped up, and since electrician Koshurin
nearly fell off the scaffold two weeks earlier due to instable planking over a gap, under
Michigan law, this raises a material fact question under element three of the common
work area doctrine that a significant number of workers faced the same risk that was a
proximate cause of Plaintiffs’ damages.
Managing employees of Clark, BBCS, Dancer’s employer Leidal & Hart, and
defense expert Destafney establish that construction of the scaffold’s work platform with
unsecured and unsupported wooden planks in the eight to ten-foot gaps between the
Hyrdo Mobile units violated the site’s safety requirements and created a readily
4 Smith v Globe Life Ins Co, 460 Mich 446, 454-455; 597 NW2d 28 (1999); Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994).
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observable and avoidable fall hazard to workers on the scaffold.5 Several witnesses,
including Clark superintendent Schaibly, admit that the site’s mandatory six-foot fall-
protection requirement, when applicable, was not enforced – increasing the serious fall
risk. It is unrebutted that at least 15 employees of multiple subcontractors used the
scaffold’s hazardous work platform at elevations above ten feet without utilizing fall-
protection devices. This raises a material fact question of a “significant number” under
element three of the common work area rule.
None of Clark’s arguments alter the fact that Plaintiffs present a meritorious claim
under element three of the common work area doctrine. Defendants’ applications for
leave to appeal should be denied.
A. Mr. Dancer fell, and Mr. Koshurin nearly fell, due to unsecured and unsupported wooden planks comprising the scaffold’s work platform. Managing employees of Defendants and Dancer’s employer Leidal & Hart, along with Defendants’ expert, establish that the failure to secure and support the planks violated the site’s safety rules and created a readily observable and avoidable danger. The unsecured and unsupported planks constituted the operative hazard which, along with failure to enforce the fall-protection requirement (if applicable), proximately caused Mr. Dancer’s fall.
Clark’s (and BBCS’) application hinges, in substantial part, on its attempt to avoid
the hazard created by the unsecured and unsupported planks on the scaffold which
proximately caused both Mr. Dancer’s fall and electrician Koshurin’s previous near fall.
In particular, Clark ignores the testimony of high-ranking Clark, BBCS and Leidal & Hart
representatives confirming that the failure to secure and support the wooden planks
comprising the work platform not only violated the site’s safety requirements in EM 385-
5 Recognizing this fact, the Supreme Court’s MOA order omits consideration of elements one and two of the common work area rule. (12/6/16 order).
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1-1, which undisputedly governed safe construction and use of the scaffold, but created
a readily observable and avoidable danger to workers using the scaffold. Recognizing
this, the Supreme Court’s MOA order omits consideration of element two of common
work area doctrine.
Since Mr. Dancer fell, and electrician Koshurin nearly fell, due to the same
hazardous deficiencies in the scaffold’s work platform, evidence unavoidably raises a
genuine issue of material fact that the failure to secure and support the planks (and, if
applicable, failure to enforce the fall-protection rule) constituted the operative hazard in
this case which proximately caused Plaintiffs’ damages. It is uncontested that Mr.
Dancer fell, while walking on planks directly over one of the 8-10 foot gaps (an “area
between the towers”), when an unsecured and unsupported plank “teeter(ed)” and
“flipped up.” (Johnson dep, 11:2-11:7, 25:22-26:7, 90:13-90:18, 109:16-110:10 – Ex M).
It is unrebutted that, approximately two weeks earlier, electrician Eric Koshurin nearly
fell off the scaffold, while walking across one of the gaps, when an unsecured and
unsupported plank rose up. (Koshurin dep, 17:20-18:11, 24:4-24:12, 53:16-53:19 – Ex
H). It is unrebutted that, after his “frightening” experience, Koshurin twice complained to
SSHO Hanson, specifically telling him that “the planking (was) not … solid” and needed
“something on the end to lock them ….” (Koshurin dep, 18:14-18:24, 19:17-19:19,
19:25-21:2, 21:8-21:17 – Ex H). Despite Koshurin’s repeated complaints, and despite
Hanson’s repeated promises, (Koshurin dep, 19:17-19:19, 19:25-20:12, 23:3-23:8 – Ex
H), it is unrebutted that Hanson did nothing to address the problem, (id, 23:11-23:15;
(Martin dep, 60:6-60:11, 114:21-114:24 – Ex G).
Managing employees of Clark, BBCS, and Dancer’s employer Leidal & Hart,
along with defense expert Destafney, concede that EM 385-1-1 governed safe
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construction and use of the scaffold and required use of devices to secure (clamps or
tie-downs) and support (bridges and outriggers) the planks – particularly across the
eight to ten-foot gaps between the Hydro Mobile units. (Waterman dep, 8:4-8:8, 14:5-
14:18, 15:2-15:7, 106:5-107:10, 107:15-108:6, 109:4-109:8 – Ex A; Hanson dep, 92:2-
97:23 – Ex B; Schaibly dep, 7:16-7:18, 12:10-12:24, 135:18-135:20, 168:9-168:13 – Ex
C; Destafney dep, 31:22-32:7, 45:25-46:3, 102:4-102:23 – Ex D; Leidal dep, 5:23-6:1,
6:23-6:25, 26:25-27:2, 29:11-29:25, 62:14-62:18 – Ex J; Kyewski dep, 54:7-54:15 – Ex
K).6 It is uncontested that Leidal & Hart violated of EM 385-1-1 and the Hydro Mobile
manual by failing to secure the planks and install bridges and outriggers to support the
planks in the gaps between the scaffold units. (EM 385, pp 22-6, 22-7, ¶¶
22.BV.08.(2).c, 22.B.08.(2).h – Ex F; Photo, p 2 – Ex O; EM 385, p 22-44, ¶ 22.N.01 – 6 Clark’s desperate attempt to avoid the relevance of EM 385-1-1 is totally misplaced. At the outset, Plaintiffs are not merely relying on the provisions of the contracts, but the concessions of Clark, BBCS and Leidal & Hart supervisors, as well as defense expert Destafney, that EM 385-1-1 governed safe construction and use of the scaffold. Clark cites no authority for the proposition that contractual construction site safety rules in a common work area claim may not augment MIOSHA’s minimal regulations. As Plaintiffs have demonstrated, Michigan courts repeatedly reference contracts to determine the scope of duties owed in common work area cases. (Plaintiffs’ 8/5/16 response to Clark app, p 32, n 28). This Court is clear that “[i]t is not sufficient for a party ‘simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.’” Innovation Ventures v Liquid Manufacturing, 499 Mich 491, 518-519; 885 NW2d 861 (2016) (citations omitted). In addition, as Plaintiffs’ expert, Michael Wright, testifies, MIOSHA did not authorize Defendants and Leidal & Hart to construct the work platform without securing the planks and supporting them across the gaps with bridges and outriggers. (Wright dep, 161:3-161:21, 167:17-168:11 – Clark Appx 19). Next, because Plaintiffs do not raise a such a claim, Clark’s reliance on third-party beneficiary cases is totally unfounded. Finally, Clark’s contention that Fultz v Union-Commerce Assoc, 470 Mich 460; 683 NW2d 587 (2004) and its progeny preclude consideration of Defendants’ and Leidal & Hart’s duties under the Fort Custer site contracts is frivolous. See Debeul v Barton Malow Corp, unpublished opinion per curiam of the Court of Appeals, issued February 15, 2011 (Docket No. 296094) (Ex 1 to this supplemental brief, p 1) (reversing summary disposition and holding that Fultz does not preclude liability under the “separate and distinct” tort common work area doctrine).
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Ex F; Stewart dep, 39:7-40:5 – Ex P; Martin dep, 104:18-104:20 – Ex G; Johnson dep,
94:1-94:3, 119:6-119:13 – Ex M; Destafney dep, 45:25-46:3, 77:12-77:18, 102:4-
102:23, 105:5-107:13 – Ex D; Kyewski dep, 53:11-54:15 – Ex K; Wright, 37:22-39:12,
45:20-45:24, 48:6-48:12 – Ex E). Clark superintendent Schaibly, defense expert
Destafney, Leidal & Hart owner Brad Leidal, and Leidal & Hart safety director Kyewski
collectively establish that construction and use of the scaffold with unsecured and
unsupported planks not only violated EM 385-1-1, but created a readily observable and
avoidable danger to workers. (Schaibly dep, 77:14-77:18, 163:22-164:20 – Ex C;
Destafney dep, 49:24-50:3, 105:5-106:10, 107:6-107:18, 109:21-110:2 – Ex D; Kyewski
dep, 47:13-47:23, 48:5-48:10, 53:11-53:23, 54:24-54:25, 55:4-55:22 – Ex K; Leidal dep,
44:14-44:24 – Ex J). Schaibly is clear that the absence of devices to secure and
support the planks created a readily apparent fall risk7 to workers on the scaffold:
Q. You were aware that on the boards for the walkway on the scaffolding that they were being overlapped and they weren’t being clamped or secured by wire, correct, before Ronnie Dancer was injured?
A. Yes, I know that’s the common practice. (Schaibly dep, 77:14-77:18 – Ex C; emphasis added).
Q. If you’re walking on a plank you don’t have as much support for the plank at Outrigger Three because it’s short, right?
A. I would say yes. Q. That creates a danger because all the planks aren’t resting on an
outrigger, correct? 7 Clark continues to mischaracterize this Court’s Latham holding. Contrary to Clark’s depiction, Latham did not reject all common work area claims addressing fall risks from dangerous elevations. Instead, Latham held that the lack of adequate fall protection to workers at a dangerous height (whether due to an unsafe work platform or non-enforcement of rules requiring use of fall-protection devices), may present a readily observable and avoidable danger under the common work area doctrine. Latham, 480 Mich at 113-114.
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A. I would say yes. Q. That’s something that a site safety person could see from the
ground, that all the outriggers aren’t evenly spaced or extending as far as they should, correct?
A. I would say yes, you could see that from the ground. Q. If Cory Hanson had gone out there on August 9th and looked up
underneath the scaffolding he would have been able to see that this outrigger was shorter – and I’m talking about Outrigger Three from the right – is much shorter than the other ones, correct?
A. Yes. Q. That creates a hazard for the worker that’s walking along this
walkway where the shorter outrigger is; isn’t that true? A. I would think so.
(Schaibly dep, 163:22-164:20 – Ex C; emphasis added). Destafney is equally clear the unsupported planking constituted a readily visible fall
hazard:
Q. … I’m asking about the planking system or the bridge system that should be used on the (Hydro Mobile). That’s readily visible, isn’t it, to the site safety and health person?
A. It would be. (Destafney dep, 49:24-50:3 – Ex D; emphasis added). Q. You agree that using the scaffolding at the Fort Custer project when
you have an insufficient work platform on the scaffold creates a high degree of risk to everyone above 6 feet ground level, correct?
A. It would create a hazard to anyone on the work platform when they
are above six feet, I would agree with that. * * * Q. The danger posed would be that of falling, correct? A. Correct. Q. That danger would be caused by the instability of the planking,
correct?
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A. It could be the instability of the planking, that’s one potential source
of that fall. Q. Would you agree that the job built bridging between the (Hydro
Mobile) units were not equipped with outriggers to support the planking?
A. I believe that’s true. (Id, 105:5-106:10; emphasis added) Q. Would you agree that’s an unsafe condition not to have a second
outrigger there? A. Yes. Q. … The reason it’s unsafe is because it increases the – not having
enough support for the planking, correct? A. It would reduce the support for the planking, correct. Q. By reducing support for the planking you’re creating a hazard,
correct? A. I would think it would increase the possibility of a failure. Yeah,
there would be hazard. (Id, 107:6-107:18; emphasis added). Q. Would you agree that if Cory Hanson would have looked up he
could have seen that the outrigger was not there on at least August 9?
A. On the day of the accident, right. If one was there and he looked
up I believe it would be visible, yes. If it’s not there it would also be – should be apparent, yes.
Q. Do you have any reason to believe that there was ever an outrigger
there prior to this fall by Ronnie Dancer? … A. No. (Id, 109:21-110:5; emphasis added).
In addition to this compelling testimony, SSHO Hanson admits that, if he observed that
the scaffold planks were not secured and failed to enforce EM 385, he would have been
“negligent.” (Hanson dep, 129:7-129:21 – Ex 3).
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Plaintiffs have presented more than sufficient evidence to raise a genuine issue
of material fact that Defendants failed to take reasonable steps within their supervisory
and coordinating authority to address the readily observable and avoidable danger to
workers created by the unsecured and unsupported planking on the scaffold. Latham,
supra; Ormsby, supra. Plaintiffs also raise a material fact question that the hazard
created by the unsecured and unsupported planking was a proximate cause of his
accident.
It is universally-accepted that, unless reasonable minds could not differ regarding
the issue, proximate cause, and potential intervening cause, is a question of fact for the
jury. Craig ex rel Craig v Oakwood Hosp, 471 Mich 67, 87; 684 NW2d 296 (2004);
Nichols v Dobler, 253 Mich App 530, 532; 655 NW2d 787 (2002). This is particularly
true in negligence actions. Helmus v Dep't of Transportation, 238 Mich App 250, 256;
604 NW2d 793 (1999).8 Because (a) the failure to secure and support the scaffold’s
planking violated the site’s safety requirements and constituted a readily observable and
avoidable danger – an issue no longer under consideration in this Court’s MOA order,
(b) Mr. Dancer undisputed fell when one or more unsecured and unsupported plank
over a gap shifted and flipped up, and (c) Mr. Koshurin nearly fell because an
unsecured and unsupported plank over a gap rose up, this dangerous instability in the
scaffold’s planking constituted the operative hazard in this case which was a proximate
cause of Plaintiffs’ damages.
8 It is also well-established “that there can be more than one proximate cause contributing to an injury.” O’Neal v St John Hosp, 487 Mich 485, 496-497; 791 NW2d 853 (2010).
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The testimony of several witnesses, which Clark has conspicuously avoided,
further establishes that Defendants proximately caused Mr. Dancer’s fall by permitting
construction and use of the scaffold with unsecured and unsupported planks. Glenn
Johnson testifies that use of bridges and outriggers over the gap where Plaintiff fell
would have possibly prevented his fall. (Johnson dep, 117:8-117:11 – Ex M). Clark
superintendent Schaibly goes even farther. He admits that, if Cory Hanson had done
his job, Plaintiff’s accident may have been prevented and that Hanson’s failure to
enforce safety was “a cause” of Plaintiff’s injury. (Schaibly dep, 143:9-143:25, 168:9-
168:20 – Ex C). Schaibly also concedes that Clark shares responsibility for this
accident. (Id, 143:9-143:25).
Voluminous testimony raises a genuine issue of material fact that Defendants
failed to take reasonable steps within their supervisory and coordinating authority to
address the readily observable and avoidable danger to workers created by the
unsecured and unsupported planking on the scaffold, and that this hazard was a
proximate cause of Mr. Dancer’s accident. Evidence additionally raises a material fact
question that a significant number of workers faced this same risk, satisfying element
three of the common work area rule.
B. Defendants increased the hazard by failing to enforce, when applicable, the mandatory six-foot fall-protection rule for workers on the scaffold.
Clark spuriously argues that, as a matter of law, Mr. Dancer was comparatively
negligent and caused his injuries by not wearing a fall-protection device at the time of
the accident. To begin, it is unrebutted that Mr. Dancer was not required to wear fall-
protection equipment at the time of his fall because he was walking on the scaffold with
the guardrails enclosed. (Stewart dep, 43:8-43:11 – Ex P; Martin dep, 112:4-112:10 –
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Ex G; Kyewski dep, 74:7-75:21 – Ex K; Johnson dep, 40:23-41:5 – Ex M). In addition,
several witnesses testify they do not know where on scaffold Mr. Dancer could have
attached a lanyard. (Johnson dep, 125:2-125:6 – Clark Appx 10; Wright dep, 103:14-
105:8, 161:3-161:21 – Clark Appx 19; Wojcik dep, 41:3-41:18 – Ex U).
Yet, even if Mr. Dancer was required to use a fall-protection device, numerous
witnesses establish that Defendants knowingly failed to enforce the project’s six-foot
fall-protection rule for workers using the scaffold.9 (Schaibly dep, 77:6-77:13 – Ex C;
see also Martin dep, 23:5-23:8 – Ex G; Leidal dep, 67:19-67:24 – Ex J; Johnson dep,
54:13, 99:2-99:9 – Ex M; Koshurin dep, 10:17-10:24, 11:3-11:5, 12:18-12:24, 13:16-
13:20 14:13-14:17 – Ex H). Since the failure of workers on the scaffold to use fall-
protection was readily visible and known hazard to Defendants, and was easily
remedied, Dancer’s failure to use a fall-protection device does not support granting
summary disposition under MCR 2.116(C)(10).10
9 As indicated above, both EM 385-1-1 and MIOSHA regulations required use of fall protection equipment above elevations of six feet. (EM 385, p 21-1 ¶ 21.A – Ex F; MIOSHA R408.40631). 10 It is equally well-established that, “unless all reasonable minds could not differ,” the issue of comparative negligence is also a fact question for the jury. Rodriguez v Solar of Mich, Inc, 191 Mich App 483, 488; 478 NW2d 914 (1991); see also Laier v Kitchen, 266 Mich App 482, 496; 702 NW2d 199 (2005).
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C. Evidence raises a genuine issue of material fact that a significant number of workers faced the same risk created by the unsecured and unsupported planks, without use (when required) of fall-protection equipment, which proximately caused Mr. Dancer’s fall.
Ample evidence raises a material fact question that a significant number of
workers encountered the same risk created by the unsecured and unsupported planks
on the scaffold’s work platform, without use (when required) of fall-protection
equipment, which proximately caused Mr. Dancer’s fall. Michigan courts have not
specified what constitutes a “significant number of workers” for purposes of element
three of the common work area rule. Shepard v M & B Construction, LLC, unpublished
opinion per curiam of the Court of Appeals, issued September 19, 2006 (Docket No.
261484) (Ex Y, p 3, *4). While cases have held that one to six persons is not a
“significant number of workers,” see Ormsby v Capital Welding, Inc, 471 Mich 45, 59 n
12; 684 NW2d 320 (2004) (one worker insufficient); Hughes v PMG Building, Inc, 227
Mich App 1, 7-8; 574 NW2d 691 (1997) (four is insufficient); Alderman v JC
Development Communities, LLC, 486 Mich 906 (2010) (two to six employees of one
subcontractor inadequate), they also have held that the presence of eight or more
employees raises a genuine issue of material fact satisfying the “significant number of
workers” element, Shepard, supra (8 to 10 workers raises a material fact question);
Latham, supra, 480 Mich at 121 (approximately a dozen individuals raises a material
fact question).
As this Court held in Ormsby, “[t]he high degree of risk to a significant number of
workers must exist when the plaintiff is injured; not after construction has been
completed.” Id, 471 Mich at 59 n 12. This means that element three of the common
work area doctrine is determined by the length of time the same risk of harm existed.
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Richter v American Aggregates Corp, 522 F Appx 253, 262-263 (CA 6, 2013) (Ex Z);
Latham v Barton Malow Co (On Remand), unpublished opinion per curiam of the Court
of Appeals, issued February 4, 2014 (Docket Nos. 312141, 313606), lv den after MOA,
497 Mich 993 (2015) (Ex W, pp 7-8); see also Ormsby, supra, 471 Mich at 57, n 9,
quoting Hughes v PMG Building, Inc, 227 Mich App 1, 8-9; 574 NW2d 691 (1997).
Assessment of the risk is not limited to a “snapshot” of the exact time the plaintiff is
injured. Richter, supra; Latham (On Remand), supra.11
It is unrebutted that, both before and after this accident, at least fifteen
employees of several contractors used the scaffold and were exposed to the same fall
risk presented by the unsecured and unsupported planks laid across the 8-10 foot gaps
and by Defendants’ non-enforcement of the site’s six-foot fall-protection rule. Weston
Allen testifies that “everyone in the trailer knew that all trades were using scaffolding.”
(Allen dep, 36:19-36:22 – Ex I; emphasis added). These subcontractors included:
Leidal & Hart, who consistently had between eight and eleven workers on the scaffold,
(Martin dep, 74:8-74:20 – Ex G; Kyewski dep, 46:5-46:10 – Ex K; Johnson dep, 13:16-
14:11, 17:21-18:1 – Ex M; Dancer dep 1, 18:23-19:2 – Ex R);12 Henry Electric, with two
workers “regularly” and “frequently” working alongside the masons on the scaffold.
(Hanson dep, 152:19-152:24, 178:5-178:20 – Ex B; Schaibly dep, 74:4-74:23 – Ex C;
Koshurin dep, 7:7-7:8, 9:11-10:16, 13:4-13:11 – Ex H; Allen dep, 7:16-9:13 – Ex I); at
least one employee from another electrical subcontractor, “Mark Shepherd’s company,”
11 This Court’s proviso in Ormsby footnote 12 unquestionably does not apply since, at the time of Mr. Dancer’s accident, construction at the site had not been “completed.” Two walls had yet to be built. 12 On the morning of Dancer’s accident, there were “approximately 10 masons … on the scaffolding …..” (8/10/10 memo – Ex T).
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(Allen dep, 10:1-10:7, 38:1-38:24 – Ex I); the crew from Szydlowski Plumbing
(comprising at least two workers), (id, 5:2-7:3, 6:18-6:21, 37:4-37:7, 54:5-55:1; Koshurin
dep, 14:25-15:2 – Ex H); pipefitters (or “ironworkers”), (Johnson dep, 112:16-112:25,
113:7-113:9, 122:11-122:15 – Ex M; Schaibly dep, 74:20-75:3 – Ex C); caulkers,
(Koshurin dep, 24:19-24:22, 46:23-47:1 – Ex H), as well as representatives of Clark,
(Johnson dep, 112:5-112:11, 119:14-119:21 – Ex M), and the Army Corps, (Koshurin
dep, 15:3-15:8, 52:20-53:1 – Ex H).
It is unrebutted that the subcontractors’ use of the scaffold continued after this
accident. By the date of Dancer’s fall, August 9, 2010, work on two walls of the training
center had not even begun. (Photo – Ex S; Martin dep, 10:15-10:23 – Ex G). Plumbing
foreman Weston Allen testifies that, from June/July 2010 to April 2011, before and after
this accident, his crew used “the same” “Hydro Mobile scaffolding” about 12 to 16 times
to install pipes into the walls which Leidal & Hart’s masons were constructing. (Allen
dep, 5:16-6:21 – Ex I; see also Allen dep, 18:5-18:7 – Clark Appx 15; emphasis added).
Electrician Koshurin continued to use the scaffold for “a good three or four months”
(from May to September 2010). (Koshurin dep, 9:8-9:10, 13:4-13:6 – Ex H). He
therefore used the scaffold for approximately one month after Mr. Dancer’s accident.
Heating and cooling contractors, in addition to Leidal & Hart’s employees, electricians
and plumbers, were scheduled to work at high elevations after Plaintiff’s accident.
(Allen dep, 53:11-54:4 – Ex I; Schaibly dep, 75:7-75:24 – Ex C).
By the most conservative count, over 15 employees of at least five
subcontractors (Leidal & Hart, Henry Electric, Shepherd Electric, Szydlowski Plumbing
and the heating and cooling contractor) worked on the scaffolding. If, as Clark
superintendent Schaibly testifies, there were approximately 50 workers on the entire
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site, (Schaibly dep, 153:22-154:7 – Ex C), approximately one third of the entire work
force used the scaffolding. Since it is undisputed that Leidal & Hart never installed
bridges/outriggers over the gaps and never secured the planks, and Defendants never
enforced fall-protection rules, this is more than enough to raise a genuine issue of
material fact meeting the third element that a significant number of workers were
exposed to the same risk that proximately caused Ronnie Dancer’s injuries.13 This, of
course, includes electrician Koshurin who, about two weeks before Mr. Dancer’s
accident, nearly fell off the scaffold when an unsecured and unsupported plank rose up.
D. None of Clark’s arguments, including the allegation that Mr. Dancer created and exclusively encountered the only fall risk by misaligning the planks, support reversing the Court of Appeals’ decision and reinstating the summary disposition order.
Clark fails to raise meritorious grounds for Supreme Court review or any basis to
reverse the Court of Appeals’ decision. Clark’s (and BBCS’) principal argument that, as
a matter of law, Mr. Dancer was the only worker to encounter a fall risk on the scaffold
because he failed to wear fall protection equipment and allegedly incorrectly overlapped
the wood planks shortly before his accident, is untenable. To reiterate, evidence
establishes that Mr. Dancer did not have to wear a fall-protection device because, at the
time he fell, he was walking on the scaffold with the guardrails enclosed. (See
Argument IB). Even if fall-protection was required, Defendants undisputedly failed to
enforce the six-foot rule and witnesses could not identify where, on the scaffold, Dancer
could have attached a lanyard. (Id).
13 Since this Court, in Latham, has already held that twelve workers is sufficient to raise a material fact question satisfying element three, Id, 480 Mich at 121, Clark incorrectly argues that fifteen workers is inadequate as a matter of law.
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As for the argument that Mr. Dancer was solely responsible for creating the
hazard that injured him, Clark violates the MCR 2.116(C)(10) motion standard14 by
ignoring evidence raising a material fact question that Dancer did not misalign the
planks. Clark first disregards Mr. Dancer’s testimony that he “never” moved the scaffold
on the Fort Custer job. (Dancer dep 2, 29:14-29:16 – Ex N). While Mr. Dancer does
not remember how he fell, his testimony that he “never” moved this scaffold alone raises
a material fact question that, on the day of the accident, he did not move the planks.
Undisputedly, the only reason why someone would move the planks on the scaffold was
to facilitate raising or lowering the scaffold. Accepting Dancer’s testimony that he never
moved the scaffold on this job, as we must under MCR 2.116(C)(10), then he could not
have moved the planks – let alone misaligned them.
In addition to ignoring Mr. Dancer’s testimony, Clark spuriously relies on several
witnesses for the proposition that, shortly before the accident, Mr. Dancer did not
properly overlap the planks. The only person who allegedly witnessed the accident was
Glenn Johnson. All of the other witnesses’ depositions Clark relies on, including Nick
Martin, Brad Leidal, Walter Kyewski, and MIOSHA investigatory Steward, were not
present when Mr. Dancer fell.15 Their testimony lacks foundation, is not admissible
14 Smith, supra; Skinner, supra. 15 Clark also erroneously contends that Plaintiffs’ expert, Michael Wright, admits Mr. Dancer created a hazardous condition by improperly aligning the planks. Mr. Wright prefaced his answers to questions about the alignment of the planks at the time of the accident by stating that no one knows how Mr. Dancer allegedly overlapped the planks. (Wright dep, 88:18-88:22 – Clark Appx 19). While speculating how the planks may have been aligned, Wright repeatedly emphasized that Mr. Dancer had the top board correctly placed and was not at fault because the actual fall risk was created by use of unsecured and unsupported planks which created a “trap” for workers who did not know the planks laid across the gaps had nothing beneath them. (Id, 45:25-46:3, 60:19-60:24, 89:10-89:14, 90:2-90:4, 94:17-94:22, 95:2-95:6, 97:8-97:12, 168:3-168:11,
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evidence on this issue, and cannot support summary disposition. MCR 2.116(G)(4) and
(6).
Even discounting Mr. Dancer’s statement that he never moved the scaffold,
Glenn Johnson’s testimony, as a whole, does not conclusively establish that Dancer
moved the planks, or aligned them improperly, before the accident. Johnson is clear
that, at the time of the accident, Mr. Dancer was not “moving” the planks, but was
walking back and forth on the platform and stacking material to be down-loaded by
Johnson’s crane. (Johnson dep, 11:13-11:18, 12:5-12:18 – Ex M). Clark is correct that,
early in his deposition, Glenn Johnson testifies he saw Dancer move the planks. Clark
omits, however, Johnson’s subsequent concession that he actually does not know if
Dancer raised the scaffold or moved the planks before he fell:
Q. … So did you say that, sitting in your crane after everybody else was released to go home because of the rain, you saw Ronnie raise the scaffold or not?
A. I don’t know if he raised the scaffold at that point. Earlier that
morning the scaffold was being raised. I didn’t – I don’t recollect that he was raising the scaffold at that moment. I know there was something coming out of the wall is the reason why the plank needed to be moved. I don’t know exactly what it was, but.
Q. Okay. Did it appear to you that he had finished what he was doing
and put the planks back in place? A. I – I don’t really notice. Like I say, I don’t know exactly what those
– two plank got moved. It was prior to him stepping down and walking over there earlier, sometime earlier they got moved. I don’t see, visually see him move those two before he fell. (Johnson dep, p 79:8-79:25 – Ex M; emphasis added).
169:10-169:17, 190:9-190:19, 196:19-196:25 – Clark Appx 19). Indeed, Wright specifies that, “[i]f those planks were tied down and clamped as the manufacturer (requires) using their bridges and using their outriggers, using their clamping systems, we wouldn’t be here today.” (Id, 190:9-190:19). Contrary to Clark’s allegation, Mr. Wright did not conclude Mr. Dancer was negligent and created the risk of harm in this case.
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At a minimum, this concession raises a material fact question whether Johnson saw Mr.
Dancer raise the scaffold or move the subject planks.
Clark further omits Johnson’s testimony that, when Mr. Dancer walked over the
planks the moment before he fell, the planks appeared to be “properly placed” with “no
gaps” or openings. (Johnson dep, p 80:6-80:17 – Ex M). Accordingly, Johnson’s
testimony, even considered in isolation, does not obviate a material fact question
whether, shortly before the accident, Mr. Dancer improperly overlapped or even moved
the planks.
Finally, Clark’s and BBCS’ argument that Mr. Dancer moved the planks before he
fell, even if supported by record evidence, in no way necessitates reversal of the Court
of Appeals’ decision and reinstatement of the summary disposition order. As this
Court’s MOA order recognizes, Plaintiffs have raised a genuine issue of material fact,
under elements one and two of the common work area rule, that Defendants failed to
take reasonable steps within their supervisory and coordinating authority to remedy the
readily observable and avoidable fall danger created by use of the unsecured and
unsupported planks and non-enforcement of the six-foot fall-protection rule. However
the planks were aligned at the time of the accident, had Defendants required use of
securing devices or bridges/outriggers to support the planks or enforced the fall-
protection rule, Mr. Dancer would never have fallen and been catastrophically injured.16
16 Superintendent Schaibly admits that Clark and BBCS share “responsibility” and were “a cause” of Plaintiff’s injury. (Schaibly dep, 143:9-143:25, 168:9-168:20 – Ex C). In addition, defense expert Destafney, Leidal & Hart safety director Kyewski, and Glenn Johnson all establish that the absence of bridges and outriggers (which Leidal & Hart owned and could have readily installed) and devices to secure the loose planks (which took very little time and effort to do), was a proximate cause of Mr. Dancer’s fall. (Destafney dep, 77:12-77:18, 105:5-106:6, 106:7-107:13 – Ex D; Kyewski dep, 53:11-53:25, 54:24-54:25, 55:4-55:22 – Ex K; Johnson dep, 94:1-94:3 – Ex M).
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In addition, even accepting that Mr. Dancer moved the planks before his
accident, the near fall of electrician Koshurin, two weeks earlier, undeniably establishes
that a significant number of workers faced the same risk that caused Dancer’s accident.
If, as Defendants argue, Dancer created a new and previously non-existent risk on the
day of his accident, why did Mr. Koshurin nearly fall two weeks prior? If the scaffold’s
work platform was totally safe, why did a plank laid across one of the eight to ten-foot
gaps rise up and nearly send Koshurin to the ground? If the planking was safe, why did
Koshurin twice complain and demand, in vain, that SSHO Hanson secure the planks?17
Clark offers nothing, except misplaced jury-trial arguments, in response to these
questions. While the jury may ultimately buy Defendants’ argument that Mr. Dancer
created a new risk of harm, was 100% comparatively negligent, or was the sole cause
of the accident,18 they have utterly failed to establish, as the moving party, that Plaintiffs
fail to raise a genuine issue of material fact that that a significant number of workers
encountered the same risk that proximately caused Mr. Dancer’s fall.19
17 The Court of Appeals rejected Defendants’ argument that, as a matter of law, Mr. Dancer created a new and unique hazard shortly before the accident, concluding that “evidence of an earlier near occurrence of a similar fall belies the suggestion that plaintiff himself created a uniquely dangerous condition, and suggests that the work surface in question, with its reliance on unsecured planks to bridge gaps, where frequent adjustment of the planks was necessary as the surface was raised or lowered, was dangerously unstable by its nature,” (COA majority decision, p 9 – Clark Appx 1). This holding was unassailably correct. 18 The Court of Appeals correctly held that questions including “comparative negligence” must be resolved “at trial.” (COA majority decision, pp 9-10 – Clark Appx 1). 19 Latham v Barton Malow Co (On Remand), unpublished opinion per curiam of the Court of Appeals, issued February 4, 2014 (Docket Nos. 312141, 313606), lv den after MOA, 497 Mich 993 (2015) (Ex W, p 10), rejected an attempt, like in this case, to narrowly parse the nature of the risk. In Latham, the Court of Appeals affirmed a judgment on a jury verdict in a common work area case, rejecting the defendant’s argument that element three could not have been met because the risk of harm was
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Clark’s remaining arguments can be briefly dispatched. Clark’s allegation that
Mr. Dancer was the only worker on scaffold at the time of the accident disregards Mr.
Koshurin’s testimony that “other laborers” were present. (Koshurin dep, 73:2-73:8 – Ex
H).20 At this summary disposition stage, Defendants’ attempts to discredit Koshurin’s
testimony are wholly misplaced. Yet, even if Mr. Dancer was alone on the scaffold when
he fell, this does not alter the fact that a significant number of workers were exposed to
the same risk created by the unsecured and unsupported planks and non-enforced fall-
protection rule.
Clark fails to cite any cases supporting reinstatement of the summary disposition
order. This includes Clark’s newest case, Faulman v American Heartland
Homebuilders, LLC, unpublished opinion per curiam of the Court of Appeals, issued
January 4, 2007 (Docket No. 269287) (Clark Appx 21). As Clark concedes, Faulman is
not precedential. MCR 7.215(C)(1). Further, to the extent Faulman determined that 15
workers are insufficient to raise a material fact question under element three of the
common work area rule, it directly conflicts with the Supreme Court’s holding, in
Latham, that twelve workers is sufficient to raise a material fact question satisfying
element three, Id, 480 Mich at 121,
The Court of Appeals correctly held that Plaintiffs have raised a genuine issue of
material fact satisfying element three of the common work area doctrine. Clark’s
application for leave, and BBCS’ application in appeal no. 153889, should be denied. solely created by a scissor lift “crookedly parked” before the accident. (Id). Citing this Court’s prior decision, the Court of Appeals held that the risk encountered by a significant number of workers was more broadly defined as “the danger of working at heights without fall-protection equipment.” (Id, citing Latham, 480 Mich at 114; original emphasis). 20 Documentation proves that there were at least 10 workers on the scaffold on the day of the accident. 8/10/10 memo – Ex T).
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II. EVIDENCE READILY RAISES A MATERIAL FACT QUESTION THAT, BOTH BEFORE AND AFTER MR. DANCER’S FALL, EMPLOYEES OF TWO OR MORE SUBCONTRACTORS USED THE SCAFFOLD ESTABLISHING THAT IT CONSTITUTED A COMMON WORK AREA UNDER MICHIGAN LAW.
The Court of Appeals also correctly held that, since employees of other
subcontractors used the scaffold at hazardous elevations of at least 14 feet, “the trial
court erred in concluding that the scaffold was not a common work area when plaintiff
fell solely because plaintiff fell from an elevation that only he and his fellow Leidal & Hart
employees reached.” (COA majority decision, p 4 – Clark Appx 1). Evidence readily
raises a genuine issue of material fact that the scaffold constituted a common work area
under the long-established definition under element four of the rule. Clark fails to raise
grounds for Supreme Court review or establish that the summary disposition order must
be reinstated. Clark’s (and BBCS’) application should be denied.
Michigan law is clear that an area “where the employees of two or more
subcontractors will eventually work” constitutes a common work area. Groncki v Detroit
Edison Co, 453 Mich 644, 663; 557 NW2d 289 (1996). “It is not necessary that other
subcontractors be working on the same site at the same time; the common work area
rule merely requires that employees of two or more subcontractors eventually work in
the area.” Hughes v PMG Building, Inc, 227 Mich App 1, 5-6; 574 NW2d 691 (1997);
see also Candelaria v BGC General Contractors, Inc, 236 Mich App 67, 75; 600 NW2d
348 (1999).
In Ormsby, supra, the Supreme Court adopted the Court of Appeals’ analysis
from Hughes, supra, “[w]ith reference to element four – a common work area,” “[w]e
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
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isolation from other workers and a situation where employees of a number of
subcontractors were all subject to the same risk or hazard.” Ormsby, supra, 471 Mich at
57 n 9, quoting Hughes, supra, 227 Mich App at 8-9 (emphasis added). The Supreme
Court was clear that the crucial factor in determining whether a common work area
exists is not the precise location of an accident, but whether employees of more than
one subcontractor were subject to “the same risk or hazard.” Id (emphasis added).
As Plaintiffs have shown, it is unrebutted that, before and after the accident, a
total of at least 15 employees of multiple subcontractors (Leidal & Hart, Henry Electric,
Shepherd Electric, Szydlowski Plumbing, and the heating and cooling contractor)
worked on the scaffolding well above six feet and faced the same fall risk created by the
unsecured and unsupported planks over the 8-10 foot gaps without enforcement of
applicable fall-protection requirements.21 Since employees of more than two
subcontractors used the scaffold before and after the accident, element four is readily
met.
Clark’s arguments do not alter this conclusion. The trial court’s and Defendants’
reliance on the fact that employees of only Leidal & Hart used the scaffold for a week or
21 At the time of the accident, the scaffold still had to be used to construct two walls of the Fort Custer structure. (Photo – Ex S; Martin dep, 10:15-10:23 – Ex G). Plumbing foreman Weston Allen testifies that, from June/July 2010 to April 2011, before and after this accident, his crew used “the same” “Hydro Mobile scaffolding” about 12 to 16 times to install pipes into the walls which Leidal & Hart’s masons were constructing. (Allen dep, 5:16-6:21 – Ex I; see also Allen dep, 18:5-18:7 – Clark Appx 15; emphasis added). Electrician Koshurin continued to use the scaffold for “a good three or four months” (from May to September 2010). (Koshurin dep, 9:8-9:10, 13:4-13:6 – Ex H). He therefore used the scaffold for approximately one month after Mr. Dancer’s accident. Heating and cooling contractors, in addition to Leidal & Hart’s employees, electricians and plumbers, were scheduled to work at high elevations after Plaintiff’s accident. (Allen dep, 53:11-54:4 – Ex I; Schaibly dep, 75:7-75:24 – Ex C).
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less22 above elevations of 25 feet23 is arbitrary and patently untenable. It is legally and
factually undisputed that the fall risk to workers was the same at any elevation above six
feet. Both EM 385-1-1 and MIOSHA R408.40631 mandated 100% fall protection above
six feet. (EM 385, p 21-1 ¶ 21.A; original emphasis – Ex F; see also Martin dep, 23:5-
23:8 – Ex G; Leidal dep, 67:19-67:24 – Ex J; Johnson dep, 54:13 – Ex M). Defendants’
expert, Tom Destafney, acknowledges that any fall from six feet or higher can cause
significant injury. (Destafney dep, 88:15-88:24, 105:5-106:15 – Ex D). Clark
superintendent Schaibly concedes that, even below elevations of 25 to 30 feet, the “red
flag” of a serious fall risk “goes up and you need to be on high alert.” (Schaibly dep,
50:14-50:22 – Ex C).
The scaffold did not become a different piece of equipment, presenting a different
fall hazard, when it was raised above 25 feet. As plumber Allen testifies, the scaffold
remained “the same” throughout the project. (Allen dep, 18:5-18:7 – Clark Appx 15;
emphasis added). However high the scaffold was raised or lowered, or when it was
moved to a different wall, it remained the “same” equipment that employees of multiple
subcontractors used.24
22 Electrician Koshurin, an employee of a different subcontractor, testified he was up on the scaffold at this same wall either one half a week or a week before Mr. Dancer fell. (Koshurin dep, 41:20-41:25, 43:5-43:7, 44:4-44:11, 54:17-54:19, 88:2-88:5, 91:6-91:12 – Ex H). 23 Koshurin testifies that he worked on the scaffold at elevations of 20-25 feet. (Koshurin dep, 11:21-11:23, 12:3-12:12 – Ex H). The trial court incorrectly found that no other subcontractor worked above 20 feet. 24 Accepting Defendants’ authoritatively unsupported position that the scaffold – despite the ongoing failure to support and secure the planks or enforce fall-protection rules – became a new “area” and “location” each time it was raised or lowered requiring, under element four, multiple subcontractor use at each precise elevation, would lead to
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Every worker on the scaffold above six feet, and certainly up to 20-25 feet, faced
the “same” serious fall risk as Mr. Dancer at 35 to 40 feet. Ormsby, supra; Hughes,
supra. Eric Koshurin’s near fall at 10-25 feet due to the unsecured planks laid over a
gap without outriggers, and Mr. Dancer’s fall at 35-40 feet due to the unsecured planks
laid over a gap without outriggers, conclusively proves that, even though the scaffold’s
elevation changed, the risk of harm faced by all the workers remained the “same.” Id.
As Weston Allen establishes, the “area” remained “the same,” improperly constructed
scaffold.25
Accordingly, whether Leidal & Hart employees exclusively worked on the scaffold
for a week or less above 25 feet, both before and after Mr. Dancer’s accident,
employees of multiple subcontractors continued to use the same scaffold and encounter
the same fall risk created by the unsecured and unsupported planks and unenforced
fall-protection rule. As the Court of Appeals correctly held, this raises a genuine issue
of material fact that the scaffold constituted a common work area – including at the time
of Mr. Dancer’s accident.
Clark’s argument that Leidal & Hart exercised “exclusive control” over the
scaffold, exempting it as a matter of law from the definition of a common work area, is
vexatious. As demonstrated above, Clark and BBCS employees and their attorneys
have conceded that Defendants exercised supervisory and coordinating control of preposterous results inimical to the policy purposes of the common work area doctrine. (See Plaintiffs’ 8/5/16 response, pp 28-30; Plaintiffs’ 8/12/16 response, pp 17-27). 25 SSHO Hanson not only admits he had to inspect the scaffold every day, but claims he did so the morning of Dancer’s accident. (Hanson dep, 93:24-95:15, 97:16-97:23, 137:4-137:7 – Clark Appx 11). Hanson also admits that, if he observed that the scaffold planks were not secured and failed to enforce EM 385, he would have been “negligent.” (Hanson dep, 129:7-129:21 – Ex 3). This further rebuts Clark’s assertion that, by the date of this accident, the scaffold ceased being a common work area.
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safety for the entire site, including the scaffold. (See Tr 7/21/14, p 27 – Clark Appx 22).
Evidence meeting element one of the common work area rule is so compelling, this
Court deleted the issue from the MOA order.
In addition, evidence conclusively establishes that Leidal & Hart did not exercise
“exclusive control” over the scaffold. Defendants’ representatives and expert Destafney
unequivocally admit that Clark and BBCS were responsible for overseeing safety at the
entire site – including use of the scaffold. (Waterman dep, 8:4-8:13, 14:5-14:18, 15:2-
15:7, 106:5-109:8 – Ex A; Schaibly dep, 7:16-7:18, 12:10-14:11, 135:18-135:20, 165:13-
165:19, 168:9-168:13 – Ex C; Hanson dep, 92:2-97:23, 129:7-129:21 – Ex B; Destafney
dep, 31:22-32:7, 67:11-67:12 – Ex D). Corroborating this, electrician Koshurin testifies
that SSHO Hanson specifically authorized use of the scaffold. (Koshurin dep, 44:16-
44:19, 45:3-45:6 – Ex H). Clark’s argument that Leidal & Hart exclusively controlled the
scaffold is vexatious.
Clark also spuriously argues that Leidal & Hart is solely at fault for the negligent
construction and use of the scaffold. Defendants could have, but chose not to identify
Leidal & Hart as a nonparty at fault. Clark erroneously argues that the exclusive
remedy provision, MCL 418.131, precluded Defendants from filing a notice of nonparty
fault. Our courts have clearly rejected the proposition that the immunity provision in
MCL 418.131 precludes identification of an employer as a nonparty at fault. See Kopp v
Zigich, 268 Mich App 258, 261; 707 NW2d 601 (2005), rev’d on other grounds in
Romain v Frankenmuth Mutual Ins Co, 483 Mich 18, 20; 762 NW2d 911 (2009);
Schmeling v Whitty, unpublished opinion per curiam of the Court of Appeals, issued
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February 15, 2011 (Docket Nos. 292190, 292740) (Ex 2 to this supplemental brief, p
1).26
The Court of Appeals correctly held that Plaintiffs have raised a genuine issue of
material fact that the scaffold constituted a common work area under element four of the
rule.27 Clark (and BBCS) fails to raise grounds for Supreme Court review or
demonstrate that the summary disposition order must be reinstated.
26 Moreover, evidence of MIOSHA citations issued to a third party is inadmissible were the violations are not the gravamen of the claim. Swartz v Dow Chemical Co, 414 Mich 433, 445; 326 NW2d 804 (1982); Clark v Seagrave Fire Apparatus, Inc, 170 Mich App 147, 156; 427 NW2d 913 (1988); see also Wingard v Nutro Corp, unpublished opinion per curiam of the Court of Appeals, issued March 7, 2007 (Docket No. 262893) (Ex 3 to this supplemental brief, p 8 at *9) (“MIOSHA speaks directly to the “statutory rights, duties, or liabilities of employers and employees.” MCL 408.1002(2). It does not, at any point, speak to duties of third-parties, and does not appear to have been applied to third-parties in prior case law.”). 27 Plaintiffs’ August 5, 2016 response addresses Sprague v Toll Bros, 265 FSupp2d 792 (ED Mich, 2003).
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RELIEF REQUESTED
WHEREFORE, Plaintiffs-Appellees respectfully request that this Honorable Court
deny Defendant-Appellant Clark Construction Company, Inc’s application for leave to
appeal and deny Defendant-Appellant Better Built Construction Services’ pending
application for leave to appeal in case no. 153889.28
Respectfully submitted,
/s/ Donald M. Fulkerson DONALD M. FULKERSON (P35785) Attorney of Counsel for Plaintiffs-Appellees P.O. Box 85395 Westland, MI 48185 (734) 467-5620 [email protected] Dated: February 7, 2017
28 Plaintiffs note that, on February 1, 2017, BBCS filed a supplemental brief. This Court’s December 21, 2016 MOA order clearly limits supplemental briefing and oral argument to Clark’s application for leave in appeal no. 153830. (12/21/16 order). BBCS does not have leave to file its supplemental brief. That brief should be stricken.
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INDEX OF EXHIBITS TO PLAINTIFFS-APPELLEES’ CORRECTED SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT-APPELLANT CLARK CONSTRUCTION
COMPANY INC’S APPLICATION FOR LEAVE TO APPEAL
Description Designation Debeul v Barton Malow Corp, unpublished opinion per curiam of the
Court of Appeals, issued February 15, 2011 (Docket No. 296094) . . . 1 Schmeling v Whitty, unpublished opinion per curiam of the Court of
Appeals, issued February 15, 2011 (Docket Nos. 292190, 292740) . . 2 Wingard v Nutro Corp, unpublished opinion per curiam of the
Court of Appeals, issued March 7, 2007 (Docket No. 262893) . . . . . . 3
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Exhibit 1
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Debeul v. Barton Malow Co., Not Reported in N.W.2d (2011)
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
2011 WL 520632Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECKCOURT RULES BEFORE CITING.
UNPUBLISHEDCourt of Appeals of Michigan.
Frank DEBEUL, Plaintiff-Appellant,v.
BARTON MALOW COMPANY, Defendant-Appellee.
Docket No. 296094.|
Feb. 15, 2011.
Oakland Circuit Court; LC No.2008-094349-NO.
Before: CAVANAGH, P.J., and STEPHENS andRONAYNE KRAUSE, JJ.
Opinion
PER CURIAM.
*1 In this action involving an injury at a constructionsite, plaintiff, an employee of a plumbing contractor,appeals as of right from the trial court's order grantingsummary disposition to defendant, the contract managerof the project, pursuant to MCR 2.116(C)(10). Relyingon Fultz v. Union-Commerce Assoc, 470 Mich. 460; 683NW2d 587 (2004), the trial court concluded that defendantwas entitled to summary disposition because, although thehazard that caused plaintiff's injury was within the scopeof defendant's contractual obligations to Southfield PublicSchools, “defendant did not owe plaintiff a duty that wasseparate and distinct from its contractual obligation asconstruction manager.” Because we conclude that the trialcourt erred by failing to consider defendant's potentialliability under the common-work-area doctrine applicableto general contractors, we reverse and remand for furtherproceedings.
Defendant was the manager of a construction projectat Southfield High School pursuant to a contract withSouthfield Public Schools. Plaintiff was employed byOakland Plumbing, a plumbing contractor for the project.Plaintiff was injured when he tripped on “rebar” thatwas protruding through concrete in an area where he was
unloading and transporting pipe from a truck. Plaintifffiled this negligence action against defendant, assertingthat defendant was liable under the common-work-areadoctrine, which provides an exception to the general rulethat a general contractor is not liable to employees ofsubcontractors who are injured at a construction site.Defendant moved for summary disposition under MCR2.116(C)(10), arguing that it was not subject to liabilityunder the common-work-area doctrine because it wasonly a contract manager, not a general contractor, andthat it did not owe plaintiff any duty of care separate anddistinct from its contractual duties to Southfield PublicSchools. The trial court agreed and granted defendant's
motion. 1
1 Defendant alternatively argued that even if it weresubject to general contractor liability under thecommon-work-area doctrine, plaintiff was unable toestablish a genuine issue of material fact concerningits liability under that doctrine. In light of its decision,the trial court did not reach this question.
This Court reviews a trial court's decision on a motion forsummary disposition de novo. Meridian Twp v. Ingham CoClerk, 285 Mich.App 581, 586; 777 NW2d 452 (2009). Amotion under MCR 2.116(C)(10) tests the factual supportfor a claim. Driver v. Naini, 287 Mich.App 339, 344; 788NW2d 848 (2010). The court must consider any admissibleevidence submitted by the parties in a light most favorableto the nonmoving party. MCR 2.116(G)(6); MeridianTwp, 285 Mich.App at 586. Summary disposition shouldbe granted if the evidence fails to establish a genuineissue of material fact and the moving party is entitled tojudgment as a matter of law. Id.
We agree with plaintiff that the trial court erred byanalyzing defendant's potential liability under Fultz,without considering the common-work-area doctrine.The common-work-area doctrine provides a basis fordefendant's liability to plaintiff, “separate and distinct”from its duties to Southfield Public Schools under itscontract with Southfield Public Schools. As explained inGhaffari v. Turner Constr Co, 473 Mich. 16, 20; 699 NW2d687 (2005):
*2 At common law, property owners and generalcontractors generally could not be held liable for thenegligence of independent subcontractors and theiremployees. However, in Funk v. Gen Motors Corp,392 Mich. 91, 104; 220 NW2d 641 (1974), this Court
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departed from this traditional framework and set forthan exception to the general rule of nonliability in casesinvolving construction projects:
“We regard it to be part of the business of a generalcontractor to assure that reasonable steps within itssupervisory and coordinating authority are taken toguard against readily observable, avoidable dangers incommon work areas which create a high degree ofrisk to a significant number of workmen. [Emphasisadded.]”
“Essentially, the rationale behind [the common-work-area] doctrine is that the law should be such as todiscourage those in control of the worksite from ignoringor being careless about unsafe working conditionsresulting from the negligence of subcontractors or thesubcontractors' employees.” Latham v. Barton Malow Co,480 Mich. 105, 112; 746 NW2d 868 (2008).
We disagree with defendant's argument that its statusas “contract manager,” as opposed to being a “generalcontractor,” precludes liability under the common-work-area doctrine. The premise for imposing liability on acontractor under the common-work-area doctrine is thecontractor's supervisory and coordinating authority overthe worksite. Ghaffari, 473 Mich. at 20; Latham, 480 Mich.at 109. As explained in Ghaffari, 473 Mich. at 20-21,quoting Funk v. Gen Motors Corp, 392 Mich. 91, 104; 220NW2d 641 (1974):
“Placing ultimate responsibility on the generalcontractor for job safety in common work areas will,from a practical, economic standpoint, render it morelikely that the various subcontractors being supervisedby the general contractor will implement or that thegeneral contractor will himself implement the necessaryprecautions and provide the necessary safety equipmentin those areas.
[A]s a practical matter in many cases only the generalcontractor is in a position to coordinate work or provideexpensive safety features that protect employees ofmany or all of the subcontractors.... [I]t must berecognized that even if subcontractors and supervisoryemployees are aware of safety violations they often areunable to rectify the situation themselves and are in toopoor an economic position to compel their superiorsto do so. [Id. (internal citation and quotation marksomitted).]”
In this case, defendant's contract with Southfield PublicSchools provided it with responsibility for coordinatingthe activities and responsibilities of the various othercontractors on the project, including the sequence ofconstruction and assignment of space in areas wherethe other contractors are performing work. Defendantwas also responsible for reviewing the various othercontractors' safety programs and coordinating the safetyprograms with those of the other contractors. Inaddition, defendant was required to regularly monitorthe work of the other contractors on the project. Insum, defendant's contract provided it with the supervisoryand coordinating authority of a general contractor.Under these circumstances, defendant's title as “contractmanager,” as opposed to “general contractor,” is adistinction without a difference for purposes of thecommon-work-area doctrine. See Ghaffari, 473 Mich. at19 n 1 (under the terms of the defendant's contract withthe premises owner, the defendant's title as a “constructionmanager,” and not “general contractor,” was a distinctionwithout a difference for purposes of the common-work-area doctrine). Accordingly, the trial court erred byfailing to consider defendant's potential liability under thecommon-work-area doctrine.
*3 The elements of a claim under the common-work-areadoctrine are: (1) the defendant contractor failed to takereasonable steps within its supervisory and coordinatingauthority (2) to guard against readily observable andavoidable dangers (3) that created a high degree of riskto a significant number of workers (4) in a common workarea. Latham, 480 Mich. at 109.
Defendant argues that, because plaintiff was the onlyworker at the site of the accident when the injuryoccurred, relief was precluded. However, in Hughes v.PMG Building, Inc, 227 Mich.App 1, 6; 574 NW2d 61(1998), this Court explained that “[i]t is not necessary thatother subcontractors be working on the same site at thesame time; the common-work-area rule merely requiresthat employees of two or more subcontractors eventuallywork in the area.” The Court held that the third prongof the doctrine was not satisfied where four workers wereexposed to the alleged risk. Id . at 7. More recently,in Alderman v. JC Development Communities, LLC, 486Mich. 906; 780 NW2d 840 (2010), the court held that sixworkers were not significant enough for the applicationof the common-work area-doctrine. In this case, however,
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defendant's construction supervisor acknowledged that 45workers were on the job site on the day the plaintiff wasinjured, albeit not at the time he fell. Given that the rebarwas near an entry point to the jobsite, it is reasonableinfer that a significant number of those 45 workers wereexposed to risk.
As stated above, the risk must also be readily observableand avoidable. Plaintiff and defendant's constructionsupervisor both provided testimony that the rebar wasreadily observable. The parties have a dispute regardingthe condition of the rebar at the time of the injury. Bothsides agree that it was bent over. Both sides agree that thebending the rebar is designed to minimize the risk. Theconstruction manager testified that caution tape, cappingand bending were available means for minimizing riskbut did not state that all of those measures needed tobe employed to render the site reasonably safe, nor didhe give unequivocal statements regarding which of thosemeasures were utilized. Plaintiff argues that reasonableefforts to avoid the risk would include taping and capping.Plaintiff has offered the Department of Consumer andIndustry Services Director's Office Construction SafetyStandards and OSHA website excerpts regarding the kindof guarding recommended to avoid injury from rebar andwork progress notes addressing the need to replace anymissing rebar caps. Thus, there is a is a material questionof fact related to whether, on the day at issue, the rebarwas capped or marked with caution tape and whether allthese measures were necessary to meet the standard of carefor a common work area.
The analytical framework for determining whether therewas a high degree of risk does not focus solely on the injurysustained by this plaintiff. In Funk, the case from whichthis theory of liability flows, the Court addressed the needto protect from aggravated injury. Thus, the focus is on theseverity of potential harms to which workers are exposed,as opposed to the probability of an injury occurring. Thecase law on this issue is sparse and primarily unpublished.
In Pavia v. Ellis-Don Michigan, Inc, unpublished percuriam opinion of the Court of Appeals, issued November27, 2001 (Docket No. 224327), the court found that aplaintiff who was faced with numerous beams on theground in a common work area was not exposed to a highdegree of risk. However, the only potential risk presentedto that panel was a trip or fall. In this case, plaintiff haspresented excerpts from governmental websites noting thedanger of impalement on rebar. Defendant urges that thewarning in those websites apply only when one falls froma substantial height. The website does not contain such alimitation. Further, this Court believes that the analysisshould be on the instrumentality of the rebar, not theheight of the potential fall. The rebar appears to be asubstantial metal object with appreciable girth. While it iscertain that falling onto it from a great height above thefloor creates a substantial risk, so does tripping on such anobject from any height as it brings a danger of the objectprotruding through a shoe, a knee or an arm and causinggreat damage to muscles, tendons, and nerves. The onlyevidence on the issue of high risk of harm was presentedby plaintiff. The defense argued that the risk was minimalfrom a trip. However, they offered no contrary bulletins,expert testimony or other competent evidence to rebut thegovernmental warning.
*4 For the reasons discussed above, plaintiff presentedsufficient evidence to create genuine issues of materialfact relating to each of the elements of a common-work-area cause of action. Consequently, the trial court erredin granting defendant's motion for summary dispositionpursuant to MCR 2.116(C)(10).
Reversed and remanded for further proceedingsconsistent with this opinion. We do not retain jurisdiction.
All Citations
Not Reported in N.W.2d, 2011 WL 520632
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Exhibit 2
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Schmeling v. Whitty, Not Reported in N.W.2d (2011)
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2011 WL 520539Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECKCOURT RULES BEFORE CITING.
UNPUBLISHEDCourt of Appeals of Michigan.
James SCHMELING, Plaintiff-Appellee,v.
William WHITTY and Waste Managementof Michigan, Incorporated, d/b/a WasteManagement, Defendants-Appellants.
Docket Nos. 292190, 292740.|
Feb. 15, 2011.
Wayne Circuit Court; LC No. 07-722135-NI.
Before: CAVANAGH, P.J., and STEPHENS andRONAYNE KRAUSE, JJ.
Opinion
PER CURIAM.
*1 In these consolidated appeals, defendants appealby leave granted an order granting partial summarydisposition in favor of plaintiff and an order denying theirmotion and granting plaintiffs' counter motion to takejudicial notice of a speed limit and to strike their noticeof nonparty fault. We affirm in part, reverse in part, andremand.
Plaintiff is, among other things, an emergency medicaltechnician (EMT). This case arises out of automobileaccident in which his partner, Kimberly Salas, illegallydrove the ambulance in which he was working through astop sign, without the use of lights or sirens. DefendantWilliam Whitty was driving a garbage truck owned bydefendant Waste Management on the intersecting road,and the garbage truck broadsided the ambulance in theintersection. The garbage truck did not have a stop sign,but there is some dispute whether it was exceeding thespeed limit. Plaintiff was severely injured, and the patientbeing transported on a non-emergency basis died. Theaccident at issue in this case is the same accident thatwas at issue in Freed v. Salas, 286 Mich.App 300; 780
NW2d 844 (2009), which involved a suit by the estate ofthe patient.
Defendants first argue that the trial court erred in strikingtheir notice of nonparty fault, which named plaintiff'semployer, HealthLink, and plaintiff's coworker, KimberlySalas (who, at the time of the accident, was driving theambulance in which plaintiff was working at the time ofthe collision with a garbage truck). We agree. We reviewquestions of law de novo. McManamon v. Redford CharterTwp, 273 Mich.App 131, 134; 730 NW2d 757 (2006).
In a tort action for personal injury, the trier of factallocates liability amongst all persons found to have beenat fault, “regardless of whether the person is, or could havebeen, named as a party to the action.” MCL 600.2957(1).Similarly, MCL 600.6304(1)(b) provides, in relevant part,for allocation of fault to “all persons that contributed tothe death or injury ... regardless of whether the personwas or could have been named as a party to the action.”However, before a person can be named as a nonparty atfault, it must first be shown that the person owed a dutyto the plaintiff. Romain v. Frankenmuth Mut Ins Co, 483Mich. 18, 20-21; 762 NW2d 911 (2009).
The worker's disability compensation act (WDCA), MCL418.101 et seq, provides that workers' compensationbenefits are the exclusive remedy, as against an employeror coemployee, for workplace injuries, MCL 418.131(employer); MCL 418.827(1) (coemployee), absent anintentional tort, Palazzola v. Karmazin Prods Corp, 223Mich.App 141, 149-150; 565 NW2d 868 (1997). Plaintiffargues that, consequently, HealthLink and Salas did notowe him a duty. We disagree.
The existence of a duty turns on the relationship betweenthe defendant and the person whose injury was allegedlycaused by the defendant's act or failure to act. Krassv. Tri-Co Security, Inc, 233 Mich.App 661, 668; 593NW2d 578 (1999). Essentially, the question of duty is apublic-policy question of whether the defendant should beheld responsible for the conduct or inaction in question.See, e.g., Williams v. Cunningham Drug Stores, Inc, 429Mich. 495, 500-501; 418 NW2d 381 (1988). Althoughworkers' compensation benefits are the exclusive remedyfor an employee injured while working, Palazzola, 223Mich.App at 149, it does not follow that employers andcoemployees do not owe an employee any duty.
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*2 A duty encompasses the type of behavior that theperson in question must engage in, or refrain from, inorder to avoid legal liability. A remedy, however, refersto the kind of relief a claimant may obtain, once theclaimant has shown a breach of some duty. Critically,MCL 600.2957(1) and MCL 600.2304(1)(b) recognize thisdistinction by explicitly providing that a defendant cannotice a nonparty at fault even though that nonpartycould not be sued. In other words, a person can owe a dutyto a plaintiff even when the plaintiff cannot recover anyremedy from that person. We therefore conclude that thetrial court erred as a matter of law by granting plaintiff'smotion to strike defendants' notice of nonparty fault. Thetrial court's order in this regard is reversed.
Defendants argue that the trial court erred in grantingplaintiff's motion to take judicial notice that the speedlimit applicable to the garbage truck was 35 m.p.h.,arguing that the trial court should have taken judicialnotice that the speed limit was 45 m.p.h. We agree thatthe trial court should not have taken judicial notice thatthe speed limit was 35 m.p.h, but we disagree that the trialcourt should have taken judicial notice that the speed limitwas 45 m.p.h.
Judicial notice is discretionary, MRE 201(c), and wereview a trial court's decision whether to take judicialnotice for an abuse of that discretion. Freed, 286Mich.App at 341. But for a trial court to take judicialnotice of a fact, the fact “must be one not subjectto reasonable dispute in that it is either (1) generallyknown within the territorial jurisdiction of the trialcourt or (2) capable of accurate and ready determinationby resort to sources whose accuracy cannot reasonablybe questioned.” MRE 201(b). We agree with the priordecision from this Court concerning the same accident:
The parties agree that the relevant traffic control orderindicates that the speed limit for the area where theaccident occurred is 45 miles an hour. However, on itsface, the traffic control order indicates that “[t]his orderbecomes effective when signs giving notice of same havebeen erected.” This means that until 45 miles an hoursigns were posted, the speed limit was not 45 miles anhour. All of the evidence indicated that the last signbefore the area of the accident read 35 miles an hour.Given that the signage and the traffic control order didnot agree as to the speed limit for the area, the factcould not reasonably be said to have been undisputed or
capable of accurate and ready determination. [Freed, 286Mich.App at 341 (emphasis added).]
In Freed, this Court held that the trial court had notabused its discretion by declining to take judicial notice ofthe speed limit.
We now find that the trial court abused its discretion bytaking judicial notice of it. Insofar as we can glean fromthe record, there was simply too much reasonable disputeabout the speed limit to permit the trial court to takejudicial notice of it, either the 35 m.p.h. interpretation orthe 45 m.p.h. interpretation. The trial court's order takingjudicial notice of the speed limit applicable to the garbagetruck at the time of the accident is reversed.
*3 Finally, defendants argue that the trial court erred ingranting partial summary disposition to plaintiff on theissue of whether he suffered a threshold injury for no-faultpurposes. We disagree. Summary disposition rulings arereviewed de novo. Willett v. Waterford Charter Twp, 271Mich.App 38, 45; 718 NW2d 386 (2006).
Under Michigan's no-fault system, tort liability forautomobile accidents is abolished subject to certainexceptions. MCL 500.3135(3). A person is entitled toswift and certain coverage from her own insurer for allout-of-pocket expenses, and statutory wage loss, withouthaving to burden the system with proof that the otherparty was at fault. MCL 500.3101 et seq. The exceptionsto the abolition of tort liability require “death, seriousimpairment of body function, or permanent seriousdisfigurement.” MCL 500.3135(1). If such a “threshold”injury is proven, the plaintiff can recover noneconomicdamages on a negligence claim against the other driver (asopposed to recovering from the plaintiff's own insurer).MCL 500.3135(1).
A “serious impairment of a body function” means “anobjectively manifested impairment of an important bodyfunction that affects the person's general ability to lead hisor her normal life.” MCL 500.3135(7). The impairmentmust be objectively manifested, must affect an importantbody function, and must affect the plaintiff's ability to leadher normal life. MCL 500.3135(7). If there is no materialfactual dispute regarding the nature and extent of theplaintiff's injuries, the court decides as a matter of lawwhether the plaintiff's injury meets the threshold. MCL500.3135(2).
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The plaintiff's impairment need not affect his or her entirelife. McCormick v. Carrier, 487 Mich. 180, 201-203; ---NW2d ---- (2010). As used in MCL 500.3135(7), the word“general” modifies the word ability, not the word life. Id.at 195-196. The “nonexhaustive list of objective factors”discussed in the earlier case of Kreiner v. Fischer, 471Mich. 109; 683 NW2d 611 (2004), is incorrect because ithas no corresponding language in the text of the statute.McCormick, 487 Mich. at 207-209. In McCormick, theplaintiff's ankle was broken when a coworker backed atruck over it, and although he eventually returned to work,he was unable to perform his prior duties and eventuallyvolunteered for a different position, which he was able toperform. Id. at 184-186.
Plaintiff here suffered much more extensive injuries.He suffered two broken legs, two “busted-up” knees,numerous broken ribs, multiple bruises, a collapsed lung,a lacerated spleen, an ankle fracture, internal bleeding andbruising to several internal organs (such as a kidney andthe bladder), post-traumatic stress, and a degloving injuryto his left calf. In fact, plaintiff's spleen had to be removed,and it is not an organ that can be replaced or regenerated.Plaintiff's right ankle required surgeries to put screws init and to realign it, and his ACL was torn in his right legand damaged in his left leg. Plaintiff testified that he has apermanent surgical scar, running from his sternum to thetop of the pubic bone.
*4 Even leaving aside the other injuries, plaintiff's lossof his spleen, alone, establishes a serious impairment,because “plaintiff is still missing a portion of his bodythat he will never retrieve.” Caiger v. Oakley, 285Mich.App 389, 395; 775 NW2d 828 (2009). Furthermore,an infectious disease expert testified that, because of theremoval of plaintiff's spleen, plaintiff should no longerwork as an EMT, because he would have a very highrisk of contracting an infection that would likely befatal. The spleen is an important component of the
immune system, 1 and the immune system is certainly an“important body function.” Losing a significant part ofone's immune system clearly affects the “general ability”for a person exposed to potential diseases to lead a normallife.
1 See, The Merck Manuals Online MedicalLibrary, “Spleen Disorders and Immunodeficiency,”at <http:// www.merckmanuals.com/home/sec16/ch184/ch184j.html> (retrieved 2011-01-26); seealso, The New York Times, “Finally, theSpleen Gets Some Respect,” by NatalieAngier, at <https:// www.nytimes.com/2009/08/04/science/04angier.html> (retrieved 2011-01-25).
Additionally, plaintiff spent three weeks in a hospital afterthe accident. After that, he was bound to a wheelchairfor three more months. Plaintiff was unable to workat any of his three jobs for about seven months, whenhe returned to his pastoral work. Plaintiff returned tobeing an EMT two or three months after that, andreturned to firefighting about a year and a half after theaccident. Plaintiff testified that his EMT and firefightingwork causes him pain, and furthermore, his persistence inworking those jobs is contrary to the wishes of his doctors.Plaintiff's physical medicine and rehabilitation experttestified that “There's almost nothing that he does that Iwould like him doing” and opined that, to a reasonabledegree of medical certainty, in five years, plaintiff willno longer be physically able to work as a firefighter, andin ten years, will no longer be physically able to workas an EMT. Plaintiff's vocational rehabilitation expertconcluded that plaintiff was actually working beyond hiscapability because he wanted to take care of his family asopposed to himself.
Because plaintiff's injuries were more severe and moreimpairing than McCormick's, plaintiff, like McCormick,the trial court correctly held that plaintiff was entitled tosummary disposition as a matter of law.
We affirm the trial court's grant of partial summarydisposition in favor of plaintiff on the issue of whetherhe suffered a threshold injury for no-fault purposes. Wereverse the trial court's order taking judicial notice of thespeed limit applicable to the garbage truck at the time ofthe accident and striking defendants' notice of nonpartyfault, and we remand for further proceedings consistentwith this opinion. We do not retain jurisdiction.
All Citations
Not Reported in N.W.2d, 2011 WL 520539
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Exhibit 3
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Wingard v. Nutro Corp., Not Reported in N.W.2d (2007)
Prod.Liab.Rep. (CCH) P 17,702
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1
2007 WL 675456
UNPUBLISHED OPINION. CHECK COURT RULESBEFORE CITING.
Court of Appeals of Michigan.
Mary H. WINGARD, Personal Representative ofthe Estate of Vernon Wingard, Plaintiff-Appellant,
v.NUTRO CORPORATION and Blu-
Surf, Inc., Defendants-Appellees.
Docket No. 262893.|
March 6, 2007.
Before: BORRELLO, P.J., and JANSEN and COOPER,JJ.
Opinion
PER CURIAM.
*1 Plaintiff appeals as of right a judgment of No Cause ofAction entered in this products liability action following ajury trial. We affirm.
This products liability action arises from a fatal accident ina manufacturing facility. Vernon Wingard was employedby Rotor Coaters, Inc. (RCI), a manufacturing facilitythat executes a paint process that rustproofs rotors forDelphi, which supplies them to General Motors for use invehicle assembly. Wingard worked on the conveyor lineknown as Line No. 4, loading rotors onto machines. OnNovember 16, 2000, Wingard was crushed to death in aworkplace accident involving Line 4; the details of themachinery and the accident follow.
I. Background Facts and Procedural History
The basic process of the work on Line 4 involves twooperators loading unfinished rotors at one end of aconveyor. The conveyor includes rows of four side-by-sidestainless steel rods, and the rows are sixteen inches apartalong the conveyor line. Each rod serves as a pedestal for arotor, so the conveyor moves four rotors at a time througha finishing process. Two operators unload the finished
rotors at the other end of the conveyor. The conveyormoves on a computer-controlled cycle 18 seconds long;every six seconds of movement is followed by 12 secondswhen the conveyor is stationary. During the six secondsof movement, the conveyor advances approximately 16inches, with a new row of rotors arriving at the end of theline.
In January, 2000, RCI contracted with defendant NutroCorporation (Nutro) to design and install the brakerotor finishing system that became Line No. 4. Nutroasserts that at the time of contracting, RCI had not yetdetermined whether rotors would be removed from theline manually or automatically, and that placement ordesign of the guarding of the unload point was thereforenot part of the contract. The request for proposal issuedby RCI in December, 1999, lists “System entrance andexit conveyors (if required)” in the Exclusions to the workscope. The acknowledgment of the purchase agreementfor the project, sent to RCI by Ken Rumbaugh, Nutro'sproject coordinator, identified the list of Exclusions as“Work by Others: These items are not included inthis order and must be furnished by RCI.” This listagain included “System entrance and exit conveyors (ifrequired).”
Nutro contracted with defendant Blu-Surf for theinstallation, which Blu-Surf completed in June and July,2000. The purchase order for Blu-Surf's services on theproject describes the work as a “Fixed Contract forMechanical and Electrical Labor to Install Brake RotorFinishing System at RCI.” The request for quotation sentby Nutro to Blu-Surf stated: “Nutro will have an ‘On SiteSupervisor’ who will oversee and direct the entire Project.”This supervisor, Jim Sackett, was present throughout theentire installation process.
Line 4 started producing parts in August of 2000 andwas fully up and running in September. Plaintiff assertsthat Nutro retained control of Line 4 until it wasformally accepted as complete by the buyer, which didnot happen until December 8, 2000. Nutro asserts that asof September, 2000, when the line was fully operational,Nutro no longer had any personnel on site and had turnedover control.
*2 The part of the machinery at issue here is the
barrier guard at the unload station. 1 This guard was notincluded in the blueprints of the original design. George
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Wharton, engineering manager for Nutro, stated in hisdeposition that during the installation process Nutro hadsuggested installing a light curtain, which would preventthe machinery from moving if an operator reached insideit, as a barrier guard at the end of Line No. 4. Accordingto Wharton, George Geglio, maintenance manager forRCI, declined the light curtain plan and indicated RCIwould take care of the guarding issue. On July 30, 2000,Blu-Surf submitted directly to Geglio at RCI an invoicefor work beyond the scope of the original purchase orderwith Nutro. The invoice stated “The following is a listof items which Blu-Surf completed per your request onyour new rotor line”; line item (E) read “Supply & installsafety guard at unload station.” On September 8, 2000,Ken Rumbaugh, project leader for Nutro, returned theinvoice with a handwritten note indicating that the safetyguard line item should be billed directly to Nutro; Blu-Surfthen invoiced Nutro. Rumbaugh testified that Nutro paidthis invoice from Blu-Surf as part of an arrangement withRCI to wrap up some expenses as a condition precedentto receiving the final 10% of the total contract amountbetween RCI and Nutro, approximately $130,000.
1 This section of the machine, at the unload station,is known as a “pinchpoint” because of the way themoving conveyor and the stationary barrier intersect.At the point of narrowest clearance, the line of fourstainless steel rods across the conveyor comes to apoint 2½ inches from the barrier guard that wasinstalled at the end of the line. The barrier guard is a38 inch high fence, constructed of channel iron, thatwraps around three sides of the end of the line.
According to Blu-Surf's installation supervisor, RichardBroek, the guarding on Line 4 was built “exactly like line3.” The barrier guard that Blu-Surf installed is a 38 inchhigh fence, constructed of channel iron, that wraps aroundthree sides of the end of the line. According to Nutro,although the pinchpoint at issue here was approximately2½ inches inside the barrier, it was actually approximately20 inches below and behind the barrier, and so did notpresent an immediate risk of contact with operators. Theguarding was in place for four months and finished rotorswere produced along the conveyor for three months beforeWingard's accident.
Various persons involved in the Line 4 project testifiedthat they had believed the guarding was safe beforethe accident. RCI plant engineer Chet Hill, RCImaintenance supervisor Tony Geglio, Nutro engineering
manager George Wharton, Nutro project manager KenRumbaugh, Blu-Surf installation supervisor Dick Broekall testified in depositions or at trial that they believed theguarding was safe.
According to Geglio, once Line 4 was up and running,it became a common occurrence for rotors to fall behindthe barrier guard. The manual for users of the machinedid not include instructions for the removal of fallenparts. However, employees working on Line 4 wereinstructed not to attempt to retrieve the parts, but to letRCI's maintenance personnel retrieve them. Hooks werefabricated to use for retrieval. These same hooks and thesame process for contacting maintenance personnel forremoval applied to the other production lines on the floor,as parts also fell and similarly presented no immediateissue for production.
*3 Although production workers were instructed tohave maintenance workers remove fallen parts, they werealso instructed that if they did attempt to remove partsthemselves, the process was to stop the conveyor lineand then use a metal hook to retrieve fallen parts.Wingard was trained in the proper use of the machine,and was instructed that it was a violation of RCI's safetystandards to reach into the machine. According to the trialtestimony of co-worker Otonya Williams, employees wereaware that violating this safety standard would result inimmediate termination.
Williams testified that on November 16, 2000, during themorning four rotors had fallen behind the barrier guardat the unloading station where she was working. During atime gap in production, when the operators at the loadingstation would be at lunch, Williams left her station tofind the hook to retrieve the parts. She testified that sheasked Wingard, who had returned from his lunch break,if he knew where to find the hook. He said he did not,and then walked past her, bypassing the pause button andthe emergency stop button, arrived at the unload station,and reached over the barrier guard into the machinery,apparently to retrieve the fallen rotors. Williams testifiedthat in order to reach the fallen rotors over the guard, onehas to reach so far into the machine that both feet leave theground. When she saw Wingard in this position, with bothfeet off the ground, she ran over and pressed the pausebutton and the emergency stop button, and the machinerystopped moving. Despite this, Wingard was crushed todeath.
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Wingard had apparently reached into the machinery onprior occasions and been reprimanded and warned fordoing so; maintenance worker Isaac Swilley and co-workers Reginald Cooper and Joe Stanton all testified tothis, stating that they had warned Wingard of the obviousrisk of injury or death.
Samples of Wingard's blood and urine were takenduring the autopsy. These were tested by MichiganState Police Forensic Scientist Mark Vandervest, whofound the presence of cocaine. Geoffrey French, alsoa Michigan State Police Forensic Scientist, conductedconfirmation tests and found parent cocaine and threecocaine metabolites. Dr. Michelle Glinn, supervisor ofthe Michigan State Police toxicology lab, reviewed andapproved the scientists' reports. Dr. Glinn used thedata compiled by the two tests to quantify the amountof cocaine in Wingard's system at the time of theaccident. Dr. Glinn testified that some variability in thecalculation was possible, the data dictated a particularrange that circumscribed the amount of cocaine present.Dr. Glinn stated this was based on established scientificmethodology.
On the day of the accident, MIOSHA investigated Line4 and issued citations to RCI for two safety issues: theemergency stop buttons at the unload station had ringguards around them, and the conveyor had a pinchpointarea right at the unload station. RCI paid financialpenalties and took remedial action on both issues. Toguard the pinchpoint, RCI added a light curtain.
*4 Plaintiff, decedent's surviving spouse, alleges that theaccident proves three design defects: the movement of thespindles within 2-1/2 inches of the fixed barrier created apinchpoint that pulled Wingard into the machinery; therewas a practical way to design the machinery to avoid partsfalling to the floor; defendant Nutro did not compensatefor the defective design by providing for an acceptable,reasonable, and safe way to recover fallen parts. Plaintiffasserts that after the accident, changes were made thatmake it impossible to reach over the barrier to retrievefallen parts. Plaintiff asserts that this means it is evidentthat the accident happened because the design permittedparts to fall behind the barrier.
Plaintiff filed a complaint against Nutro Corporation, 2
alleging product liability, negligence, and gross
negligence. Nutro filed a notice of Non-Party at Fault,naming Blu-Surf, arguing that RCI contracted directlywith Blu-Surf for the design, fabrication, and installation
of the guard. 3 Plaintiff then amended her complaintto add Blu-Surf as a defendant, alleging that Blu-Surfinstalled guarding on the machine, was aware of thedefect in the guarding, and undertook as the designer,manufacturer, and/or fabricator of the guarding to alter,modify, re-design, and change the original design insuch a way that the probability of injury was increased.The complaint further included a count of productliability, alleging a violation of the duty to design,test, manufacture, and sell a product reasonably fit for
foreseeable uses and free of defects. 4 Plaintiff furtheralleged that defendants violated MCL 600.2949a whenthey disregarded defects and were aware of existing safetydevices which, if installed, would have prevented this
accident. 5 Finally, plaintiff included a negligence count,alleging defendants were negligent in the design, testing,manufacture, installation, operation, sale, distribution,and maintenance of the product.
2 The complaint initially included RCI and RCI'sparent company as defendants, but claims againstthem were dismissed as a result of a settlement. Thesettlement amount was $150,000.
3 Blu-Surf contends that it was at all times a sub-contractor to Nutro.
4 Plaintiff admits that reaching into the machine wasnot the intended use, and was “foolish,” but adds thatdesigners and manufacturers have a duty to guardagainst reasonably foreseeable misuses.
5 Plaintiff's expert Barnett testified as to three possibleoptions that, if installed, would have allowedoperators to safely remove parts.
Blu-Surf filed a motion for summary disposition, arguingthat it was responsible for installation only, and was notthe designer, manufacturer, or distributor of the rotorcoater machine. Blu-Surf argued that while it did fabricatethe barrier guard, it had no responsibility for the designof the guard, and cannot be liable for design defect. Thecircuit court heard arguments on the motion and grantedsummary disposition for Blu-Surf, finding that plaintiff“has presented no evidence to support the contention thatDefendant Blu-Surf did anything other than build andinstall the barrier guard for the machine in question at
RCI's request.” 6
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6 Plaintiff's expert, Ralph Barnett, testified inhis deposition that he believed Blu-Surf hadresponsibility for installation only, and noinvolvement in any design work.
As to Nutro, a four week jury trial was held betweenMarch 16 and April 8, 2005. On May 9, 2005, a judgmentof No Cause of Action was entered. Plaintiff filed thisappeal as of right.
II. Liability of Blu-Surf
Plaintiff first argues on appeal that the trial court erredin granting summary disposition to defendant Blu-Surf.Blu-Surf moved for summary disposition under MCR2.116(C)(8) and (C)(10), arguing that it had no liabilityfor any alleged product defect because it was an installeronly and had no involvement in design of the product.The trial court agreed, finding there was “no evidenceto support the contention that Defendant Blu-Surf didanything other than build and install the barrier guardfor the machine in question at RCI's request.” Plaintiffargues that because Blu-Surf fabricated the barrier guardas well as installing it, Blu-Surf became the designer/manufacturer rather than just the installer. We disagree.
*5 This Court reviews de novo the grant or denial ofa motion for summary disposition. Spiek v. Dept. ofTransportation, 456 Mich. 331, 337; 572 NW2d 201 (1998).A motion brought under MCR 2.116(C)(8) relies onlyon the pleadings, taking all factual allegations as true,and testing the legal sufficiency of the claim; summarydisposition is proper where no factual development couldsupport relief under the claim. Maiden v. Rozwood, 461Mich. 109, 119; 597 NW2d 817 (1999). A motion broughtunder MCR 2.116(C)(10) tests the factual sufficiencyof a claim, relying on pleadings, affidavits, depositions,and other documentary evidence; summary disposition isproper only where no genuine issue of material fact exists.Id. at 120.
It is undisputed that Blu-Surf fabricated and installed theguarding on Line 4: on July 30, 2000, Blu-Surf submitteddirectly to RCI an invoice for work beyond the scopeof the original purchase order with Nutro; the invoiceincluded as a line item: “Supply & install safety guard atunload station.” The only factual dispute centers on whodesigned the guard.
Blu-Surf's installation supervisor, Richard Broek, statedin his deposition that Blu-Surf was not involved withthe design of the guarding. RCI maintenance supervisorTony Geglio stated in his deposition that he was the onlyperson from RCI with any “input” into the design of thebarrier guard. And he stated that the direction he gave“was just to make it safe or as safe as the machines, saferthan the machines that we have in-house.” It appears thatBlu-Surf followed this direction and fabricated guardingmodeled on the guarding on the other production lines.We find that completing the requested work does notimpose liability on Blu-Surf for any alleged design defect.
We find dispositive the testimony of plaintiff's safetyexpert, Ralph Barnett, who indicated in his depositionthat he did not believe Blu-Surf bore responsibility for thedesign of the guarding:
Q: And as far as the person who was in charge out therefor Blu-Surf, your understanding based on your reviewof the testimony, was Dick Broek, right?
A: I think that's correct.
Q: Are you aware of whether he had any training withregard to evaluating the safe design of the machines orthe guardings?
A: I'm under the impression that he had no training withrespect to safety.
Q: And you wouldn't have any criticisms of him, the factthat he didn't have training with regards to safety designof machines or guarding?
A: No, no criticism.
Q: You're not aware that he was contracted or Blu-Surfwas contracted to design this machine in any way, areyou?
A: I'm under the impression they were only supposed toinstall it.
Q: Well, do you have any criticisms of Blu-Surf?
A: Nope.
Plaintiff argues that either Nutro or Blu-Surf mustbe responsible for the design of the guarding. Absentevidence to create a genuine issue of material fact as to
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Blu-Surf's accountability for the design of the guarding,however, summary disposition was properly granted. Asthe trial court correctly observed, mere speculation isinsufficient to create a question of fact. Hall v. CONRAIL,462 Mich. 179, 187; 612 NW2d 112 (2000).
III. Liability of Nutro
*6 Plaintiff argues that the trial court should havedetermined, as a matter of law, that Nutro had aduty to design Line 4 in a manner that eliminatedany unreasonable risk of harm, here meaning includingadequate guarding at the unload point. Ghrist v. ChryslerCorp., 451 Mich. 242, 248; 547 NW2d 272 (1996). Plaintiffargues the trial court erred in determining that whetherNutro had a duty to guard Line 4 was a question for thejury of interpretation of the contract between Nutro andRCI. Again, we disagree.
This Court's review of a trial court's conclusions of law isde novo. Alan Custom Homes Inc. v. Krol, 256 Mich. 505;667 NW2d 379 (2003).
The trial court first considered this issue well before thetrial started in March, 2005. Defendant filed a motion forsummary disposition of the issue of duty to guard line 4,and arguments were heard on the motion on April 12,2004. The trial court issued a written opinion on May 27,2004, denying the motion and stating:
As a result of such conflictingevidence and testimony, the courtfinds a genuine issue of materialfact regarding the duty to guardconveyor line four pursuant to acontract entered into between Nutroand RCI and leaves this issue for thefact finder.
The conflicting evidence and testimony related to whetherthe contract exclusion of an “unload conveyor” alsoexcluded guarding at the unload station. The contractbetween RCI and Nutro specifically excluded “Systementrance and exit conveyors (if required)”; this line itemwas included in the list of Exclusions labeled “Work byOthers: These items are not included in this order andmust be furnished by RCI.” George Wharton, engineeringmanager for Nutro, stated in his deposition that during
the installation process he suggested installing a lightcurtain, which would prevent the machinery from movingif an operator reached inside it, as a barrier guard at theend of Line No. 4. He produced evidence that he hadobtained pricing information in order to quote this as aseparate project. However, Wharton stated that Geglio,maintenance manager for RCI, declined the light curtainplan and stated that RCI would take care of the guardingissue.
Upon de novo review, we agree with the trial court that theconflicting evidence establishes a question of material fact“regarding the duty to guard conveyor line four pursuantto a contract.” However, that question went to the jury,and the jury decided Nutro was not negligent.
Where design defect is alleged, Michigan courts apply“a pure negligence, risk-utility test in products liabilityactions against manufacturers of products.” Prentis v.Yale Mfg. Co., 421 Mich. 670, 691; 365 NW2d 176 (1984).This test “questions whether the design chosen rendersthe product defective, i.e., whether a risk-utility analysisfavored an available safer alternative. In such a complaint,the focus of any duty begins with whether the productwas defective when it left the manufacturer's control.”Gregory v. Cincinnati Inc., 450 Mich. 1, 11-12; 538 NW2d325 (1995).
*7 The specifications of the product here are outlinedin the contract. Because the conveyor line designed byNutro is a one-of-a-kind, custom-built product, the scopeof work and specifications were the result of negotiationand contract between buyer and seller. It is simply not thesame as products made in bulk for purchase by multiplebuyers. And there is no allegation that the conveyor lineitself was defective. It is the guarding, designed by RCIand fabricated and installed by Blu-Surf, that is allegedlydefective or dangerous.
Even if Nutro should be held accountable for failure toinclude a safety device that was not included in the scopeof work, and given that their suggested safety add-on wasexpressly rejected by RCI, still the omission of an effectivesafety device might not result in liability here.
[A] prima facie case of a designdefect premised upon the omissionof a safety device requires firsta showing of the magnitude offoreseeable risks, including the
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likelihood of occurrence of the typeof accident precipitating the need forthe safety device and the severityof injuries sustainable from suchan accident. It secondly requiresa showing of alternative safetydevices and whether those deviceswould have been effective as areasonable means of minimizing theforeseeable risk of danger. [Cacevicv. Simplimatic Eng'g Co., 248Mich.App 670, 680; 645 NW2d 287(2001); Bazinau v. Mackinac IslandCarriage Tours, 233 Mich.App 743,757-758; 593 NW2d 219 (1999);Gregory v. Cincinnati Inc., 450Mich. 1, 13; 538 NW2d 325 (1995)quoting Reeves v. Cincinnati, Inc.,176 Mich.App 181, 187-188; 439NW2d 326 (1989) ]
As to the first element, the magnitude of risk, clearlythe severity of possible injuries weighs heavily, butthe likelihood of this type of accident seems muchless weighty. The conveyor line apparently workedfor four months without incident. And Wingard's co-worker, Otonya Williams, testified that reaching into themachinery to retrieve fallen parts was not a simple matter:
Q: If this [the barrier guard] is about 38 inches, you'vegot to reach over, reach down, and you've got to putyour body about waist over and reach into the machine,don't you?
A: Correct.
Q: Do your feet leave the ground?
A: Yes.
Q: Both feet?
A: Yes
....
Q: So your head's inside?
A: Yes.
Q: Behind the barrier guard?
A: Yes
....
Q: And when you looked over and saw Mr. Wingard,that's how he was. He was reaching in there, his waistwas leaning on top of the guarding, feet are in the air,and he's reaching down on the ground?
A: Yes.
Plaintiff's safety expert, Ralph Barnett, also testified attrial that Wingard's action was unsafe:
Q: Mr. Wingard would have to have put over his headbelow that 38 inches [of the barrier guard], on the otherside of the guard and below it-
A: Yes.
Q: -is that true?
A: Right.
Q: That's not safe in anybody's book, is it?
*8 A: No, no, no.
As to the second element, alternative design options,although plaintiff asserts that changes to the machinehave corrected the problem, there is testimony that partscontinue to fall, and still have to be retrieved, despite thesafety upgrades. Presumably, if one wanted to climb intothe machine to remove the parts, one could still do so. Thedifference now is that the light curtain would bring themachine to a stop. Had RCI agreed to the safety devicesuggested by Nutro, a light curtain would have been inplace before Wingard leaned into the machine.
Plaintiff further argues that the trial court erred in denyingits motion for a directed verdict on the issue of the dutyto guard Line 4. We note first that plaintiff's reliance onalleged admissions made by Nutro fails because it relies onmischaracterizations of statements taken out of context,rather than on valid admissions.
In addition, plaintiff's argument is premised on thedetermination that the product at issue was dangerous,and that defendant therefore breached its duty to designits products to eliminate any unreasonable risk of harm.Ghrist v. Chrysler Corp., 451 Mich. 242, 248; 547 NW2d
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272 (1996). Notwithstanding the accident that occurred,however, it is not entirely clear that the product Nutrodesigned “was not reasonably safe at the time the specificunit of the product left the control of the manufacturer orseller.” MCL 600.2946(2).
Although the light curtain would have been a saferalternative, as it would have prevented the machine frommoving if an operator climbed in, it does not follow thatthe barrier guard built and installed by Blu-Surf was notreasonably safe. As defendant observes, case law holdsthat manufacturers are not insurers that no injury will everresult from use of their products. Owens v. Allis-ChalmersCorp., 414 Mich. 413, 432; 326 NW2d 372 (1982).
Line 4 was guarded with a barrier guard built to mirrorthose guarding the other production lines at RCI. RCI,Nutro, and Blu-Surf employees who worked on theproject all testified that they believed the guarding wassafe, until the accident occurred. In addition, safety expertJack Schuldt, who had been retained by RCI to evaluatethe safety of their machines after Wingard's accident,testified at trial that there was “[n]o doubt in [his] mind”that the guarding on line four at the time of the accidentwas “safe and adequate.”
Plaintiff asserts that the accident resulted directly from thedesign defect that allowed parts to fall behind the barrierguard. However, a process was available to retrieve partssafely, and according to the testimony of Wingard's co-workers, everyone was aware of that process and he hadbeen warned specifically of the dangers of reaching intothe machine rather than using the hook. In addition, theremedial safety measures taken to guard line four after theaccident have not stopped parts from falling.
There is also some question as to who had control ofLine 4 at the time of the accident. Plaintiff asserts thatNutro was still in formal control of Line 4 until it wasformally accepted as complete by the buyer, which didnot happen until December 8, 2000. Nutro asserts that asof September, 2000, when the line was entirely debuggedand fully operational, Nutro no longer had any personnelon site and had turned over control. Given the differingtestimony on this issue, it seems the trial court properlydid not direct a verdict as to control of the line at the timeof the accident.
IV. MIOSHA Evidence
*9 Plaintiff argues that the trial court erred in excludingevidence of MIOSHA standards and expert testimonythat would rely on MIOSHA standards as industry safetystandards.
We review a trial court's decision to admit or excludeevidence for an abuse of discretion. Elezovic v. Ford MotorCo., 472 Mich. 408, 419; 697 NW2d 851 (2005).
Defendant filed a pre-trial motion to exclude anyreferences to MIOSHA standards or the MIOSHAcitations issued to RCI after the accident. The trialcourt granted the motion, and excluded references to thecitations and the standards, which would have formed thebasis of MIOSHA inspector James Brusen's opinion thatthe guarding was unsafe.
As a threshold matter, case law supports the generalpremise that evidence of safety standards may beadmissible at trial. Coger v. Mackinaw Products Co., 48Mich.App 113, 126; 210 NW2d 124 (1973); Gregory v.Cincinnati, Inc., 202 Mich.App 474, 479; 509 NW2d 809(1993). However, case law also suggests that MIOSHAregulations do not apply to manufacturers such as Nutrois in this matter:
Next, plaintiff argues thatdefendants “assumed a duty” tocomply with the regulations of theOccupational Safety and Health Act(MIOSHA), MCL 408.1001 et seq.;MSA 17.50(1) et seq., when theyconsidered MIOSHA regulationsin designing dies. Plaintiff furtherargues that admission of thestandards was necessary to establishdefendants' breach of duty. Wedisagree. MIOSHA regulationsare applicable to employers andemployees only. [Davis v. Link, Inc.,195 Mich.App 70, 73; 489 NW2d103 (1992), citing Zalut v. Andersen& Associates, Inc., 186 Mich.App229, 235; 463 NW2d 236 (1990).]
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MIOSHA speaks directly to the “statutory rights,duties, or liabilities of employers and employees.” MCL408.1002(2). It does not, at any point, speak to duties ofthird-parties, and does not appear to have been appliedto third-parties in prior case law. Only Davis squarelyaddresses admissibility of MIOSHA standards against adefendant who is neither an employer nor an employee.
The trial court's ruling did not preclude admission of otherindustry safety standards, for example American National
Standards Institute (ANSI) standards. 7 In fact, the trialcourt asked counsel, before the examination of safetyexpert Jack Schuldt began, whether ANSI standardswould be involved in the witness' testimony. However,none of the expert witnesses relied on ANSI or any otherstandards as a basis for their trial testimony.
7 In a factually similar products liability action, Cacevicv. Simplimatic Eng'g Co., 248 Mich.App 670, 677-678;645 NW2d 287 (2001), plaintiff's expert witness reliedon ANSI standards to establish the inadequacy ofguarding on a machine:
He testified that the mesh guard provided bydefendant was “totally inadequate” because itdid not conform to the safe distance aspectof guarding, meaning that the guard wasnot positioned in such a way that it wouldprevent a person from placing a hand throughthe opening into the hazardous area of thepalletizer. On the basis of his examination ofthe equipment, Glasgow testified that becausethere was no adequate, protective guardingin place when Lena's accident occurred, thepalletizer did not conform to the AmericanNational Standards Institute Committee (ANSI)standards for guarding that existed at the timethe palletizer was designed and that defendantdid not use reasonable and diligent care toeliminate a reasonably foreseeable risk of harm(i.e., injuring a hand while trying to clear a jam).
Although we are not entirely convinced that MIOSHAstandards should never be admissible as examplesof industry safety standards, even against third-partymanufacturers of equipment sold to employers for use
by employees, we cannot say that excluding evidence ofMIOSHA standards was an abuse of the trial court'sdiscretion where case law indicates those standards are notadmissible, and where the parties were free to rely on otherindustry safety standards.
V. Cocaine Evidence
*10 Plaintiff next argues that the trial court erred inallowing evidence of cocaine and cocaine metabolites inWingard's system at the time of his death.
In this case the jury was instructed to decide specificquestions rather than to deliver a single verdict. Thejury first considered the question of whether Nutrowas negligent, and they answered that Nutro was notnegligent. Any evidence of Wingard's drug use or generalbehavior was not relevant to that question. Althoughthe information that Wingard had cocaine and cocainemetabolites in his blood at the time of the accident seemshighly prejudicial, it cannot be directly correlated to thedecision the jury reached. The issue of the blood evidencewas not dispositive, and we need not address it here.
VI. Notice of Non-Party Fault
Finally, plaintiff argues that the trial court erred inrefusing to strike Nutro's notice of non-party at faultnaming RCI. This Court's recent decision in Kopp v.Zigich, 268 Mich.App 258; 707 NW2d 601 (2005), is themost current applicable case law. In Kopp, this Court heldthat an employer can be noticed as a non-party at faultpursuant to MCL 600.2957.
Affirmed.
All Citations
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February 7, 2017 Clerk of the Court Michigan Supreme Court P.O. Box 30052 Lansing, MI 48909 Re: Ronnie Dancer, et al v Clark Construction Company
Supreme Court No. 153830 Court of Appeals No. 324314 Kalamazoo County Circuit Court No. 2012-0571-NO
Dear Clerk:
Enclosed for efiling please find Plaintiffs-Appellees’ corrected supplemental brief in opposition to Defendant-Appellant Clark Construction Company, Inc’s application for leave to appeal. This corrected brief solely (a) fixes a few typographical errors that were inadvertently left in the original version; (b) adds, in the last sentence of the first paragraph on page 29, the word “establish” mistakenly omitted in the original; and (c) in footnote 28 on page 35, substitutes for the words “earlier today” the date Better Built Construction Services filed its supplemental brief (“February 1, 2017”). This corrected brief contains no substantive additions or changes and no changes in pagination or formatting. Thank you. Very truly yours, /s/ Donald M. Fulkerson Enclosure cc: Nathan Peplinski, Esq Tyren R. Cudney, Esq Ron W. Kimbrel, Esq
DONALD M. FULKERSON ATTORNEY AND COUNSELOR
P.O. Box 85395 Westland, MI 48185
(TEL) (734)-467-5620 (FAX) (734) 467-4843 EMAIL: [email protected]
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