Mark Pawlicki v. Tru-Wall Construction Company Inc
330156
| Mich. Ct. App. | Feb 14, 2017Background
- Plaintiff Mark Pawlicki, a subcontractor at a residential construction site, tripped on a metal rod protruding from a foundation and fell about eight feet, fracturing his leg.
- Tru-Wall Construction Co., the subcontractor that poured the foundation walls ~2 months earlier, installed a metal bar (allegedly a grounding rod) that plaintiff says stuck out over one foot.
- Plaintiff sued for negligence, alleging Tru-Wall left the rod exposed, failed to remove it or warn others, and otherwise failed to act as a reasonable contractor.
- Tru-Wall moved for summary disposition under MCR 2.116(C)(10), arguing (1) no legal duty to plaintiff, (2) no breach because the rod was required by code, and (3) the condition was open and obvious.
- The trial court denied summary disposition, finding (a) the open-and-obvious doctrine did not apply because the claim sounded in ordinary negligence, and (b) a genuine issue of material fact existed whether Tru-Wall breached its duty in leaving the rod protruding.
- On appeal the Court of Appeals affirmed, holding genuine issues of fact precluded summary disposition and that the open-and-obvious doctrine was inapplicable to plaintiff’s ordinary-negligence claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of open-and-obvious doctrine | Pawlicki: claim is ordinary negligence based on contractor conduct, so doctrine does not apply | Tru-Wall: rod was an obvious hazard, so open-and-obvious doctrine bars recovery | Court: claim sounds in ordinary negligence (not premises liability); doctrine inapplicable |
| Duty owed by subcontractor to another subcontractor | Pawlicki: Tru-Wall had duty to not create unreasonable danger to others on site | Tru-Wall: as another subcontractor it owed no duty under common work-area excuses | Court: subcontractor owes duty not to create unreasonable danger; duty exists |
| Breach / whether rod was required by code | Pawlicki: evidence suggests bar was not a proper grounding rod and should not have protruded | Tru-Wall: installation was required by law and was not negligently done | Court: factual dispute exists about nature/installation of the bar; summary disposition improper |
| Standard for MCR 2.116(C)(10) evaluation | Pawlicki: submitted affidavits and testimony raising factual dispute | Tru-Wall: argued plaintiff failed to show essential element | Court: plaintiff raised specific facts creating a genuine issue; denial of (C)(10) proper |
Key Cases Cited
- Hiner v. Mojica, 271 Mich. App. 604 (2006) (open-and-obvious doctrine applies to premises-liability claims, not ordinary negligence)
- Ghaffari v. Turner Const. Co., 268 Mich. App. 460 (2005) (subcontractor has duty to avoid creating unreasonable danger to others)
- Johnson v. A & M Custom Built Homes of West Bloomfield, 261 Mich. App. 719 (2004) (active negligence may be shown by negligent performance likely to cause harm)
- Shallal v. Catholic Social Servs. of Wayne Co., 455 Mich. 604 (1997) (summary-disposition standard requires resolving genuine factual disputes in favor of nonmoving party)