*1 422 Mich v HUTCHINSON BOSAK (Calendar 2, 72467, April Argued No. 72468. Docket Nos. 4). Rehearing 1985. denied October —Decided 1201. Bosak, wife, brought Nancy action in his Nicholas Bosak and Development against Forsythe Com- Wayne Circuit Court project, general pany, of a construction contractor company Hurley Corporation, leased a crane to Concrete employer Incorporated, Components, and a Nicholas Bosak’s Hutchinson, project, the crane and Robert subcontractor on by damages injuries operator, seeking Nicholas for suffered in which four site accident as a result of a construction Bosak assembly during fingers of his left hand were severed alleged Forsythe was liable crane boom. directing actively negligent crane that the because was assembly unsafe conditions and because assembled under alleged Hurley dangerous activity. They inherently anwas. employee negligence acci- its caused the liable because brought third-party Hurley in- Forsythe claims for and dent. trial, voluntarily demnity against Hutchinson was cci. Prior to Borman, J., court, defendant, Susan and the dismissed as a against Dur- Hurley’s for indemnification. claim cci dismissed Forsythe’s trial, granted summary judgment ing cci was court, evidence, the At the close of claim for indemnification. J., Forsythe Duggan, directed a verdict Patrick J. inherently dangerous activity crane was not an erection of the respect Forsythe to direct with its a directed verdict but denied [1, [3] [5, Am[4] Liability Judicial Sufficiency 2] Am Jur 6] retrospectively. injuries pain ALR3d Am Jur Am Jur Jur adoption 2d, 2d, Negligence 447. 10. suffering 2d, 2d, Independent employer Actions §§ employees References evidence, Trial 573 et 78 ALR3d § comparative 144-155. § to warrant instructions for Points independent regard personal Contractors §§ 421. seq. negligence injury contractor. Headnotes 24-47. action, doctrine as dangerous 34 ALR4th 914. prove thereon. applicable work for future v Hutchinson Bosak finding jury, Following that the negligence. a verdict negligence negligent was a Corporation that its Hurley Bosak was proximate that Nicholas of the accident but cause plain- negligent, judgment for the comparatively was entered *2 notwithstanding judgment the plaintiffs’ motion for The tiffs. alternative, or, order of new trial or an for a in the verdict Kaufman, P.J., Appeals, N. J. The Court of was denied. additur JJ., unpub- initially in an affirmed Clements, Wahls and and rehearing, curiam; its earlier opinion per it vacated on lished Forsythe, decision, of and verdict in favor the directed reversed theory plaintiffs’ on the for a new trial remanded the case (Docket activity dangerous inherently Nos. 60567). appeal. parties The joined by Ryan, opinion by Justices Riley, Justice In an Supreme Court held: Cavanagh, Boyle, and the Brickley, employer imposed an inde- Liability an not be should by resulting work caused pendent harm from contractor for employees negligence the contractor’s or that of contractor’s dangerous activity, inherently but the work is not an where risk, performance of the created in the involves a new rather work, reasonably contemplated at the time of which was not independent employer con- and the between the the contract tractor. exception dangerous activity inherently is an doctrine 1. The independent employer general con- an of an rule that to the negligence or the not for the contractor’s liable tractor doctrine, employees. negligence Under of the contractor’s necessarily resulting work employer for harm from is liable an prevent danger great involving care is used to to others unless a employer the work involves injury. is also liable where The special danger special or reason- peculiar which calls for risk or recognizable danger precautions. must be The risk or able advance, Liability however, the doctrine. in order to invoke imposed in the may a new risk is created where not be reasonably contem- performance was not of the work which case, assembly contracting. of a In this plated at the time peculiar present a risk or did not at a construction site crane dangerous activity. danger; special nor was an particular the work under which circumstances Neither the doing prescribed the work was for nor the manner was done physical harm to others that was to create a risk shown addition, no evidence recognizable In there was in advance. entering into the general the time of contractor at of the need to erect was aware the subcontractor contract with night at it would be done site or that crane at the work Rather, suggests rainy slippery the evidence weather. the work was routine. damages clearly grossly was not and 2. The award of so judicial inadequate and warrant as to shock conscience jury presented, the of the evidence could additur. On basis plaintiff could have returned iron- have believed that return, work, voluntarily chose which would but he expen- dispute plaintiffs’ out-of-pocket put into the amount addition, jury’s award for In it cannot be said that ses. wages damages compensation for lost to the exclusion of damages. there is no standard which other Because absolute awards, determination, particu- personal injury measure involved, suffering larly pain are must rest with the where fact. trier of proper trial court 3. It was for the to instruct plain- comparative negligence. regard to Nicholas Bosak’s chargeable guard safety, duty to his own tiff is with the that, might appropriate testimony was while it for offered be lines, holding place gantry their hands on onto ironworkers might gantry improper. The line to a sheave close partici- apprentice years and had had worked three erecting previously appeared compe- pated in booms *3 crane persons job jury to site. The could have found that tent at the injury which his was the movement of the crane caused fore- seeable. refusing jury the The trial not err in to instruct 4. court did calculating damages. its of future to consider inflation in award permitted plaintiffs’ The trial court counsel to offer extensive inflation, argument testimony on fact and effect but no the presented as to the current or future rates of inflation. The was knowledge experience
jury apply was free its common of and to fashioning inflation the award. in necessary the whether the 5. The facts to determination operational time of and that crane was at the the accident the disputed, indemnity agreement thus was enforceable are re- quiring remand the trial court for further consideration of the issue. joined by concurring, Williams, Boyle, Chief Justice Justice case, presented agreed properly in inflation must a but, record, account, into on the could taken basis of the refusing judicial say the in to take trial court erred notice percent. of thirteen Consideration of of a future inflation rate necessity of an inflation the issue the instruction on jury requiring balance the instruction reduction of standard damages present a future value should await case which a Bosak v Hutchinson appropriate party presentation legal makes an of evidence and argument. part, part, Affirmed in reversed in and remanded. Levin, concurring part, Justice stated that reversal of the Appeals predicated decision of the Court of should not be dangerous Rather, inherently activity the basis of the issue.
judgment ground should be reversed on the if that even issue, prejudicial trial court erred on that the error was not they judgment against because obtained a defendant, Hurley Corporation, against judgment whom the apparently may damages be enforced for the amount of willing to award. The Court of has divided on application inherently dangerous activity of the doctrine another, impli- where one defendant seeks indemnification from cating question whether what constitutes an dangerous activity question is a or of law fact. Previous Supreme applied Court case law has not considered and doctrine, opinion signed by majority in a case where an justices, recovery by injured of the to allow worker in a third-party following receipt compensa- action of workers’ employer. application tion from his Consideration and of the doctrine should await a case which makes decision of the issue necessary.
Opinion of the Court
Negligence
—
—
—
1. Master
and Servant
General Contractors
Liability
Inherently Dangerous
—
—
Subcontractors
Ac-
tivity.
Liability
imposed
employer
indepen-
should not be
on an
of an
resulting
dent contractor for harm
from work caused
negligence
contractor’s
employees
or that of the contractor’s
inherently dangerous
where the
activity,
work is not an
but
risk,
performance
rather involves a new
created
work,
reasonably contemplated
which was not
at the time of
employer
independent
the contract between the
and the
con-
tractor.
Negligence
—
—
—
2. Master
and Servant
General Contractors
Liability
—
Inherently Dangerous
—
Subcontractors
Ac-
*4
tivity.
employer
independent
An
of an
contractor is liable for harm
resulting
involving danger
necessarily
from work
to others
great
prevent injury
unless
care is used to
and also where the
peculiar
special danger
work involves a
risk or a
which calls
special
precautions;
danger
for
or reasonable
the risk or
must
6. Instructions resulting court, injuries damages from A an action for trial accident, refusing did not err in in a construction site received speciñed by judicial of a rate inflation to take notice calculating plaintiffs applied future an award of to be regarding presented damages no evidence where the inflation. Materna) (by T. Michael
Zeff Zeff & Materna & (Gromek, Lydick, Thomas, John A. Bendure & counsel) plaintiffs. Sweeney, Sullivan, Feikens, Fos- Hurbis & Dice, (by Feik- ter, Jack E. Male Jon P.C. Vander ens), Corporation. Hurley for The Hayes Grinnan,
Joselyn, Jamieson, & Rowe, *5 Bosak v Hutchinson Feldman, Joselyn), A. for For- William P.C. (by Development Company. sythe Schwartz, P.C.
Sommers, Schwartz, & Silver (by Inc. Hines), Components, Paul W. for Concrete Riley, J.
Introduction result- appeals separate three This case involves Nicholas brought plaintiffs by from a lawsuit ing suffered injuries personal Bosak for Nancy (Herein- site accident. at a construction the former singular will refer after, use Bosak.) Nicholas proj- the construction contractor on general
The (For- Development Company Forsythe ect was (cci), Incorporated Components, Concrete sythe). was a subcontractor employer, plaintiffs and install supply hired to having been project, rented from concrete slabs. Cci had precast operator a crane and Corporation (Hurley) Hurley the slabs. When the in the installation to assist site, completely it was not arrived at crane on December injured Plaintiff was assembled. assembled, being the crane was while down,” causing plaintiffs operator crane "boomed through which into a sheave pulled left hand to be ran. Four cable, resting, his hand was on which severed. left hand were fingers appeal, only in this six are raised Several issues address: of which we need v Bosak
Forsythe
(1)
reversing
err
Did the Court
mo-
general contractor’s
grant of the
trial court’s
danger-
inherently
on the
for directed verdict
tion
activity theory?
ous
Forsythe Inc. v Concrete (2) dangerous the- Assuming that should general liability contractor’s ory of the gen- to the should the jury, have submitted been indemnity for common-law claim eral contractor’s allowed? employer have been against plaintiffs *6 Hurley Forsythe & Bosak v (3) so and damage clearly the award jury’s Is judicial the con- inadequate as to shock grossly and warrant additur? science (4) instructing jury the support Did the evidence plaintiffs comparative negligence? (5) that was finding the jury’s Was great weight against the thirty percent negligent the of evidence?
(6) refuse to erroneously the trial court Did consider inflation in calculat- instruct the damages? ing its of future award Components, Hurley Inc. v Concrete (7) require so as to Did the Court of err in in that the crane involved finding reversal that, plaintiffs "nonoperational” accident was agreement consequence, indemnity the be- as the was lessor the lessee of crane tween the unenforceable? of of Appeals
We reverse decision First, crane in we hold respects. two danger- not an operation was assembly 1). (issue ous That determination renders activity Forsythe’s indemnity consideration claim 2) (issue Second, we re- against unnecessary. cci mand matter to the trial court determine this 7). (issue operational With whether the crane was (issues 3 claims of error respect 6), Court we affirm decision through Appeals. Bosak v Hutchinson Court History
Procedural against Plaintiff and his wife filed suit Forsythe, Hutchinson, operat and Robert crane Hurley, upon was liability premised or.1 Forsythe’s that, contractor, general it was dual theories negligent directing the crane be actively it assembled under unsafe conditions and that was for the of an responsible inherently danger results i.e., ous the crane activity, assembly. Hurley’s respondeat supe premised upon liability rior negligence of its theory employee turn, Forsythe Hurley, caused the accident. against filed claims for cci. third-party indemnity on its lease Hurley’s indemnity claim based cci, agreement provided, part, which injuries resulting would be indemnified for from "operation of crane.” trial, granted Prior the trial court summary dismissing against claim cci for judgment Hurley’s personal indemnification claims for any injury *7 arising performed out of work for cci. by Hurley Cci’s for on summary judgment Forsythe’s motion granted claim for common-law indemnification was at trial. evidence,
At the close of the moved for Forsythe a directed verdict as to its The trial court liability. granted the motion insofar it to the applied inherently dangerous but denied activity theory, respect negligence to the of direct on theory part. Forsythe’s finding returned a verdict that jury Hurley negligent, negligence proximate that its was a accident, negli-
cause of the that was not Forsythe $100,000 in gent, plaintiff damages, suffered percent negli- thirty comparatively that he was prejudice just prior Hutchinson was dismissed with to trial. 422 Mich Opinion op the Court entitled Bosak was Nancy that gent, $10,000. Judgments in of the amount damages in amount of Bosak entered for Nicholas were in of $70,000 Bosak the amount Nancy and for $7,000. judgment for post-trial filed a motion
Plaintiffs alternative, or, in the notwithstanding the verdict an additur. Plaintiffs trial or order of for new inherently of part, theory in their argued, should part Forsythe on the of dangerous activity damage jury, to the have been submitted not inadequate, should award was comparative negligence, instructed have been on finding negligence was plaintiff’s and that its of the evidence. The great weight against respects. motion was denied all rais- appealed Appeals, to the Court Plaintiffs claiming and also error ing questions same these inflation. court’s refusal instruct on trial from Hurley appeal filed claims Forsythe summary granting order cci’s motions for judgment. the Court of
The appeals were consolidated the trial affirmed Appeals. Initially, reaching, respects, judgments court’s all however, Forsythe’s claim error. rehearing, for application
Plaintiffs filed danger seeking inherently reconsideration 19, 1983, question. August activity ous On vacated its earlier decision Appeals Court plaintiffs’ for a trial on remanded case new Further, activity theory.3 dangerous the grant affirmed of cci’s motion Court of claim for Forsythe’s summary judgment indemnification. common-law curiam, Hutchinson, unpublished per opinion released 2Bosak v 60567). (Docket 57795, 60565, 28, 1983 February Nos. *8 (On opinion per Rehearing), unpublished Bosak Hutchinson v 60567). (Docket 19, 1983 curiam, August released No. Hutchinson Bosak op the Court Hurley, Forsythe, Subsequently, appeal. leave for this Court applied appropriate detailed will be facts The issues. I
Issue reversing err Did general grant trial mo- contractor’s court’s danger- verdict tion for directed theory? activity ous
A. Facts: at arrived the crane established
Testimony 19, 1974. of December morning on the the worksite used, of tubu- sections multiple it could be Before base, its and various added to had to be lar steel appropriate through strung to be cables had ball. and attached sheaves subject were arrangements assembly for the heart of go trial dispute at Marus, superintendent, field cci’s lawsuit. Zolar superintendent, on-site that Forsythe’s recalled assembly to be Thompson, ordered Leonard working hours so that regular after done other work interfere with assembly would ready the crane would be being done and at trial had no Thompson, next work. who day’s conversation, that he testified recollection assembled not have ordered the crane to be would working objected hours and would not have after assembly. to daytime crane Hutch- operator
The crew which assisted "pusher” consisted of three cci employees: inson foreman, Miller, Patrick and two ironworker and Keith Porter. Erection apprentices, plaintiff p.m. 4:00 the boom commenced sometime after showed that the weather was cold Testimony *9 422 Mich Opinion op the Court was slushy. the and There muddy and site was wet have some street may that there been evidence site, the that near expressway from the lighting from lighting coming could have been some there guard that buildings, security the adjacent that the in such a manner parked had his vehicle further the The record lights along shone boom. the nor operator reveals that neither the crane Porter, crew, concerned about except for were lighting conditions. during progressed of the boom
The erection com- diminishing light until was increasingly the ca- began hauling The then out pleted. crew got carry bles. The ironworkers boom them- steady lines toward the end. In order to out selves, gantry onto line. they held under operation solely of the boom was would He testified he Hutchinson’s control. unless until he had not the boom operate (Miller). signal from the pusher received a stringing they Plaintiff believed that were He was second cable when accident occurred. boom, carrying the first one out on the the cable right holding gan- onto the over his shoulder and testified line with his left hand. Hutchinson try Miller stand- at time accident was cab, two or three ing approximately outside the him, signals. Miller did not giving feet from believe he was that close Hutchinson. that moment subject What occurred at however, disputed, at trial. It not controversy which gantry that Hutchinson activated line pulled plaintiff’s left hand into moved although Miller testified that sheave. Hutchinson until signaling by just had been hand before accident, for Hutchinson signaled Miller verbally he down. Miller contended that did boom signals signal verbal and that no hand give any Hutchinson Bosak v op the Court plain- Porter nor Neither point. at this were made signal. Miller tiff heard Court and the Court in the Trial Disposition
B.
Appeals have
The trial court and The trial court ways. this various issue analyzed verdict motion for directed granted Forsythe’s dangerous regard plaintiff’s on the trial ruling This was based activity theory. (1) had not con- findings Forsythe court’s *10 (2) night, crane at with cci to erect the tracted contract, decision, to erect to the subsequent cci’s to lighting amounted adequate without the crane in 2 Restatement negligence as defined collateral 2d, 426, Torts, 413. p § grant the Appeals the Court of affirmed
Initially, verdict, although on a different basis: of directed assuming assembly the of a crane could be Even inherently dangerous activity, the to be an found inju- by plaintiffs show that the proofs submitted to by Nicholas Bosak were not due ries sustained work, nature of the but inherently the hazardous negligence of the crane rather to the collateral Co, Armstrong Garczynski v Darin & operator. See 1970). (CA 941, 6, 420 F2d negli- negligence solely involved here is The "booming gence operator down” of the crane order to do apparently he had received no when crane, operated this risk is not properly a so. On inherent or normal Forsythe the tract with cci work, to the and defendant contemplate certainly no reason to had employee’s negligence when the con- Hurley [Emphasis was made. added.] However, Court of rehearing, on have been submit- the case should concluded jury: ted to the again reviewing the record we believe that
After Opinion of the Court fact, jury, of for the question raised the evidence solely to plaintiffs injuries were due to whether negligence operator or crane the collateral be attributable both the accident could whether the crane negligence and the actions operator’s Forsythe allegedly directed general contractor. the the work hours, working normal done after muddy, snowy, evening in winter- on a mid-winter already had conditions workers who weather worked day site. full construction contributed to acci- these conditions Whether left to the is a which should be dent trier of determination fact; circumstances foreseeable night-time crane-assembly mid- consequences of sufficient present to the December were inherently dangerous activity theory liability. Analysis C. an dangerous doctrine is activity rule that
exception general employer an is not liable for independent contractor his negligence negligence contractor’s Torts, 2d, p 2 Restatement employees. § Contractors, 2d, Independent p Am Jur § 805. recognized
Michigan
exception
has
activi
*11
reasonably
danger
can be foreseen
ties which
has,
occasion,
third
allowed
parties,4
ous to
of the
applied
employees
the doctrine
to be
dangerous
work.
performing
contractor
McDonough
Corp,
General Motors
v
430;
388 Mich
Warren,
v
Vannoy
City
(1972);
The doctrine was first 4 509; Corp, v & Chemicals 282 Mich 276 Grinnell Carbide Carbon Co, 692; (1937); v Gabriel Steel 260 Mich 245 NW NW NW 535 801 (1928); Watkins Wight Co, 208; (1932); 244 221 314 H G Christman Mich v (1926); Katz, 112; Inglis 892 v v 234 Mich 207 NW Olah (1912). Ass’n, 311; Millersburg Driving 169 136 443 NW Hutchinson Bosak v op the Court Ass’n, 311; Driving 169 Mich Millersburg v Inglis case, the plaintiff’s In that 136 NW fire, which damaged when timber were land and employed by a contractor by set had been land, spread the defendant’s to clear defendant a directed reversing In land. adjoining plaintiff’s its based on which was for the defendant verdict for the held liable it could not be contention actions, Court noted this contractor’s of set- danger had been notified defendant fact notice of the Taking judicial ting fires. held the Court unusually dry, had been
the season independent contractor of an employer an liability avoid cannot others, involving danger to unless necessarily
work
against
used,
provision
to make such
great care is
may
commensurate with
negligence as
supra,
danger. [Inglis,
obvious
321.]
Further,
concluded that
danger
caused
great
was a condition of
[t]here
one,
drought, apparent
every
unprecedented
no
warnings
given, yet
had been
cautions
fact,
enforced,
in
required or
precautions were
permitting
these fires to be set
acted
defendants
which,
consequences,
under
disregard of
with utter
conditions,
con-
naturally resulted from such
[Inglis,supra,
duct.
322.]
Inglis
has
followed
rule as
been
stated
McDonough, supra;
Tay
v
Utley
cases.
subsequent
Inc,
Gaskin,
561; 9 NW2d
lor &
305 Mich
Chemicals
Carbide & Carbon
(1943); Grinnell v
v
Watkins
(1937);
509; 276
Corp,
282 Mich
NW
Co,
692; 245 NW
Steel
260 Mich
Gabriel
Co, (1932); Wight H G Christman
Corp,
Products
Brown v Unit
(1928);
221 NW
*12
422 Mich 712
726
op
the Court
(1981), rev’d
141; 306
App
105 Mich
NW2d
grounds
on other
App
123 Mich
añer remand
Motor Wheel
v
(1983);
Huntley
NW2d
lv den
385; 188
Corp,
App
(1972); Vannoy, supra.
Vannoy
The
dangerous in two activity § § which, 416, overlap. to according to Comment a § 416 refers risk”: "peculiar Section to employs independent contractor One who an employer recognize as do which the should work peculiar during progress its risk likely to create special precau- to others unless physical harm taken, subject liability physical for are is tions harm to exercise reasonable care to take such tions, by to them failure of the contractor caused precau- provided for though employer even has or precautions such in the contract otherwise. [2 Torts, 2d, p Restatement § 395.] "special danger”: Section 427 refers to employs independent One who contractor special danger involving do to others which work employer or has reason to to be knows know work, he inherent contemplates normal to the or which contemplate or has reason to when contract, making liability subject physical by harm caused to others the con- such precautions failure to take reasonable tractor’s Torts, 2d, against danger. such Restatement [2 427, p § 415.] McDon- by The above definitions were cited ough Court and relied on were Corp, Motors Bradford General *13 Bosak v Hutchinson Opinion of the Court Mich App 333 NW2d 109 lv den 417 Mich 1100.16
In McDonough, supra, decedent (Para- was an ironworker employee of a contractor (General gon) engaged Motors) by the defendant erect the structural steel framework for an addi- tional floor which was to be built above the exist- ing plant. Paragon had installed steel trusses as a part of the structure. The plaintiff’s decedent was standing on one of the trusses when the accident derrick, occurred. A owned by Paragon, which was to be used to lift beams, steel had just been crew, erected. As the of which plaintiff’s dece- member, dent was a was tying the boom of the derrick to permanent truss in order to secure it for the night, the boom fell on the decedent as a result of either operation careless of the derrick or faulty installation of the boom cable.
The McDonough produced case four opinions, none of which had more than one co-signer. A majority justices did, however, seem to agree on the construction dan- gerous doctrine, activity which construction was based on Inglis rule. per opinion curiam concluded that the evi-
dence supported submitting question to the Inglis rule, under the job "the called for by this contract had performed to be with 'great care’ lest employees only Paragon but of Chev- —not rolet workmen below —be or become endangered performance.” such McDonough, supra, 440.
Having examined these various definitions what constitutes an inherently dangerous activity, it is apparent that an employer is liable for harm resulting from work "necessarily involving danger others, great unless care is prevent used” to injury, Inglis, supra, or where the work in- "peculiar volves a "special risk” or danger” which Mich Opinion op the Court precautions. or "reasonable” "special” calls 2d, It must be Torts, 427. Restatement §§ however, danger must the risk emphasized, advance,” i.e., at the time "recognizable be made, be invoked. doctrine to for the contract a new where imposed not be Thus, liability should of the work in the performance is created risk at reasonably contemplated which was not concept key This is the of the contract.5 time examina the instant case. Our resolution of may inferences of the evidence and tion therefrom, favor when viewed most even drawn *14 reasonable persuades us that ably plaintiffs, activity that at issue the minds would conclude inherently dangerous. not was is disagree as to what parties We note that the is submitted be activity which activity that argue dangerous. Plaintiffs At oral ar- assembly. midwinter crane nighttime, a assembling while they claimed that gument, might commonplace, daytime in the be crane directing that activity, Forsythe’s innocuous activity resulted in the assembly night be at done 2d, Torts, principle: this of sets forth Section 426 the Restatement independent employer "Except an of stated in 428 and §§ contractor, negligent, physical is is not liable for unless he himself by negligence if any contractor harm caused "(a) negligence solely improper in the the contractor’s consists work, does the in which he manner "(b) is inherent in or risk such harm which not it creates a work, to the normal "(c) contemplate employer the contractor’s had no reason to 2d, Torts, negligence 2 Restatement when the contract was made.” 426, p 413. § d, also, Torts, 2d, §427, p See, 417. comment Restatement exception suggested Inglis is this viable: Court theory] inherently dangerous activity [liability on the "It based injuries applied which are collat- where the occur not to those cases employment, dropping the servant like the of material eral to the of a contractor Inglis, supra, upon person passing by . . .” 321. . supra, McDonough, recognize per opinion in curiam We application exception. question "expressly of this reserved” Bosak v Hutchinson Opinion op the Court taking on a risk peculiar special precau- for which necessary. tions were Forsythe responds activity crane and that the weather assembly lighting conditions had nothing to do with the accident.
Comments b and c 427 of the Restatement § above, might set forth as supporting plain- read argument: tiffs’ It b ... is sufficient any that work of kind risk, advance, recognizable
involves a cal harm special physi- employer to others . . . that has contemplate reason to such a risk under particular the work is to be done. circumstances under which the . applies which, c . . The rule equally to work although recognizable the highly dangerous, involves a risk danger in advance that inherent itself, prescribed work or in the . . . way of it, doing may cause harm to others. case, however, In this there is no evidence that "the particular circumstances under which the work done” or the "prescribed way doing” [was] advance, risk, recognizable the work "a created of physical supra. harm to (Empha- others.” § added.) Further, sis appears there to be no record evidence Forsythe, general contractor, was aware at entering the time of into the con- *15 tract with cci of the need to erect the crane on site that anticipated or that the erection was to Rather, be done at night. suggests the evidence the contrary, that it was a fairly job routine as jobs go construction and that the dangerous activ- ity doing a job inadequate lighting, such with not the erection of the per crane se.
The doctrinal thread that through runs Michi- law, gan case which we reaffirm today, is the in T?annoy, supra, definition enumerated 422 Mich op akin something doctrine is dangerous inherently definition, Given this liability.6 of strict theory a that would toward a standard we decline drift to elevate normal negligence permit collateral dangerous activity. On this inherently into activity record, of the construction a say we cannot presents peculiar a at a site crane construction 416) (2 Torts, 2d, special risk Restatement § 427) (2 Torts, 2d, or, as is danger Restatement § dangerous activity. inherently argued, Therefore, of the Court judgment we reverse rehearing granting plaintiffs of new denial trial, we the trial court’s of affirm treatment for a trial. Our plaintiffs’ motion new raised moot the second issue this issue renders herein. III
Issue damage jury's clearly award so Is grossly inadequate judicial con- to shock the science and warrant additur? erred in
Plaintiff contends
trial court
additur or in the alterna-
his motion for
denying
wages alone
past
trial when his lost
tive
new
the jury
exceeded
verdict._
activity
inherently dangerous
question
liability
is
whether
for
negligence
purposes
determining
(passive)
for
or active
vicarious
common-law
Appeals.
split
indemnification claims has
Court
652;
App
Corp,
Compare, e.g.,
56 Mich
v General Motors
Nanasi
Michigan,
(1974),
Engineering
Duhame Kaiser
Inc,
App
lv den
Mich 955
GCR additur, provided: only error finding is made When a or excessiveness of inadequacy
the trial verdict, is the for new trial may deny a motion the court non-moving days 10 condition that within judgment writing entry to the party consents judge to be the lowest found of an amount or respectively which the evidence highest amount support. will a matter new trial is grant The decision and this Court trial court’s discretion within of that discre- unless the abuse interfere will 401 Mich Spangler, Moore v palpable. tion is given is 34 Great deference 372; 258 NW2d has heard the trier of fact who decision of to the Detroit, Precopio In testimony. and observed this 457, 465; 330 NW2d noted: Court damage in cases tried to reviewing In awards the award Court has asked whether
juries, this conscience, appears unsup- judicial shocks the product proofs, to be the ported by the or seems methods, caprice, prejudice; if improper the amount passion, reasonably within awarded falls limits of what within the range of evidence and just compensation would deem reasonable minds for the sustained, has not been injury the verdict disturbed. then, whether
We, must determine 2.611(A)(1)(d) substantially the same as former court is New MCR 527.1(4). rule GCR 2.611(E)(1) substantially as former court the same New MCR 1963, 527.6. rule GCR Opinion op the Court $100,000 shocking
verdict of was either *17 conscience, or judicial beyond proofs, or se- methods, prejudice, caprice, by improper cured Precopio, 465-466, supra, pp See n passion. and cited therein. cases states the rule that where a correctly
Plaintiff
ignores
verdict
the uncontroverted
out-of-
is
pocket expenses
plaintiff,
such verdict
Har-
and must be reversed. Zielinski v
inadequate
ris,
Walker v
381;
(1939);
286
654
289 Mich
NW
Britton,
Cooper
174;
(1916);
193
150
Mich
159 NW
Christensen,
v
The plaintiff’s here the amount of just cited out-of-pocket expenses was controverted. following sup- relies on evidence in
Plaintiff to of his that he is unable return port claim accident, plaintiff At the time of the ironwork. ironworking his completing two months within his He testified that after accident apprenticeship. apprenticeship program complete he tried hand, because, he one could only failed but welding course. pass accident, was work plaintiff At time week, full-time, averaging per hours forty ing Plaintiff tes per presented hour. earning $10.0358 would have concerning wages he timony completed apprenticeship his earned had he week, per weeks per forty fifty-two worked hours June, through 1975 year, years 1981.9 secretary-bookkeeper union of the ironworkers testified The following pay by ironworker contracts: scales mandated Wages Hourly Period Gross As of December
$10.0358 May January 12.5517 1975— May June 14.4977 1976— June 1977—November 15.0120 Hutchinson Bosak op earnings for the his actual Plaintiff testified approx- trial were the accident and between period earnings actual $35,000. Comparing his imately earnings, plaintiff ironworking projected approxi- out-of-pocket losses he sustained claims $180,000. mately however, on the as- claim, predicated
That not have returned could plaintiff sumption question this testimony ironwork. he could testify did While
disputed. complete ap- his required to welding not do re- that he did not testified he also prenticeship, might he he believed to ironwork because turn others, and himself and safety endanger his worried about wife would be his also because safety. *18 the ironwork-
Further, hoard for governing the ap- to continue plaintiff permitted union ers’ the nature aware of apparently prenticeship, possible rise to giving his injury, extent of to ironwork. he could return inference that than other anyone from testimony There was no appren- complete to his inability his plaintiff about Moreover, Falls, former vice George ticeship. cci, a letter to that he wrote testified president 1976, his understand- stating in January, plaintiff resume work and ing plaintiff ready that for his arrangements Falls to make contact should plaintiff knowledge, To Falls’ to work. return hire that he would Falls testified responded. never of the on the basis as an ironworker plaintiff of work. availability to whether
Thus,
conflicting testimony
put
to ironwork
could have returned
plaintiff
May 1978
December
15.5402
1977 —
May 1979
June
16.7804
1978 —
May 1980
June
18.1229
1979 —
May 1981
June
20.0258
1980 —
422 Mich 712
734
Opinion of the Court
ex
out-of-pocket
plaintiffs
dispute the amount
jury
Hurley argue,
Forsythe
As
penses.
have re
could
plaintiff
that
have believed
could
1976,
but
he
January,
turned
work
ironworker
not
to return. Lost
voluntarily
chose
19,
through
for the
December
wages
period
$26,908, using
been
would have
January
year.10
week work
fifty-two
Moyer v
presented
A similar
situation was
(1959). In
Shampo,
work Hutchinson Bosak v op Moore, 375-379. See, also, supra, trial court erred that Next, argues plaintiff additur trial or for a new his motion denying any not include award does "the jury’s because suffer- earnings, pain and future loss of amount and pleasure loss of social anguish, mental ing, embarrassment, on Coo- He relies etc.” enjoyment, 690; 110 Dati, Mich v supra, Mosley per, Bender, 363 Mich (1961), Fordon v Mancha, 353 (1961), and Weller 108 NW2d jury where 189; 91 NW2d suffering were pain and ignored awards which inadequate. found case, plain- disputed it is not instant
In the suffering. pain experienced that he proved tiff of four amputation traumatic He suffered of the se- Reattachment left hand. of his fingers graft and a skin possible, fingers was vered unsuccessful sur- underwent He performed. took the hand. Plaintiff grasp to widen the gery months, testified for three medication pain However, pain. occasional experienced still that he his had tolerated testified his doctor treated and he had patient as any as well injury of serious complaints had no the last visit that on embar- that he was further testified Plaintiff pain. hand, it that was of his appearance over the rassed cold, he was somewhat and sensitive tender activities, participated still but limited his athletics. in hobbies and he could best instant Nevertheless, the facts contrary plaintiff, matter, upon by cases relied in all of the to, than, equal were less the verdicts out-of-pocket expenses, of uncontroverted amounts pain to consider failed indicating juries Thus, distinguish- case we find this suffering. said that record, cannot be simply this able. On $100,000 as the full verdict awarded *20 422 Mich op Opinion the Court wages for the exclusion compensation lost damages claimed. other types Moore, supra, made a simi- The plaintiff argument, rejected: which this Court lar jury her contention that Plaintiff bases alleged pain her and "could not have considered” suffering assumptions: two reaching its verdict on erroneous (1) out-of-pocket expenses that her (2) uncontroverted; jury that "since the did were out-of- not even consider all uncontroverted pocket expenses, plaintiff’s pain it could have considered the suffering . . . .” Since we have and assumption unsupported by plaintiff’s first found the assumption to too and her second evidence speculative tion, conjectural to warrant considera- inescapable plaintiff’s that conclusion is ignored alleged argument jury pain that her suffering is at conjectural best. Further, that there no absolute stan- we note for personal dard which to measure awards awards, that such those for injury particularly suffering, judgment within the sound pain and rest Precopio, supra, of fact. 464-465. trier Therefore, Ap- we the Court of conclude affirmed the trial court’s denial.of peals properly motion additur or a new trial.
Issue IV support instructing Did the evidence comparative negligence? plaintiff’s
Issue V ñnding thirty Was the jury’s great weight percent negligent against evidence? next of error concern
Plaintiffs assertions Hutchinson Bosak v op He first negligence. comparative of his question instructing erred the trial court argues because comparative negligence his jury on instruction, and, such support did not evidence finding thirty that he was second, the jury’s *21 against was negligent percent comparatively great weight of evidence. first. consider Issue V
We
trial on
a motion for new
or denial of
grant
great
against
the verdict
ground
sound
within the
of the evidence
rests
weight
court,
the exercise of
of the trial
and
discretion
appeal
on
will not be disturbed
discretion
Bohn
is shown. Termaat v
unless a clear abuse
Co,
Aluminum
Brass
598;
Mich
107 NW2d
&
362
Co,
Oil
Murchie v Standard
(1961);
355 Mich
783
Sobel,
Murphy
(1959);
v
550;
799
94 NW2d
(1975).
122;
547
App
238 NW2d
has
variously
Judicial discretion
been
defined.
Green,
531, 541;
Compare Langnes v
282
51
US
S
Spald-
v
(1931),
Spalding
243;
In his in opinion 378, 399; Justice Levin wrote: question a Thus when of abuse of discretion is framed,
properly upon reviewing it a is incumbent engage in-depth analysis court to in an This Court has, appeal. spite on in record of refer- Spalding, [supra], give ences continued to full- fledged fully weighing discretionary review decisions care- rights the various and considera- type discretionary tions involved each deci- sions.
Our of the analysis record this case leads us to conclude that no abuse of discretion occurred. accident,
On the
night
plaintiff and his co-
The Court of affirming testimony the trial Hutchinson’s why arguments presents as to two Plaintiff court. this was erroneous. argues:
Plaintiff all, performed by assembly job the crane First three-man ironworker the rest of the Plaintiff and job and quite obviously an ironworker was crew reasonably expected to lie any expertise would foreman, an Plaintiff’s own trade. within ironworker, totally experienced extremely job perfor- Plaintiff’s conduct supportive Moreover, all of time of the accident. at the mance Porter, (Miller, testimony the ironworker Bosak) the correctness Plaintiff indicated Bosak Hutchinson Opinion op the Court rigging by Plaintiff employed procedure crane. however, belies testimony, reading of the
A close that Porter testified It is true argument. this line at gantry holding onto he too was Further, testified that Marus time of accident. about ironworkers nothing unusual there support, lines for holding gantry onto past in the having done so testified himself Also, Miller, do the same. seen others having foreman, testified: Miller, as a plaintiffs]: Mr. [Attorney for Q. you experience, did years
journeyman of having Bosak wrong with Nick anything know and use on one shoulder that cable hold support? gantry line for thing. I’d do the same A. Miller]: [Mr.
However, Miller also testified: Mr. Hurley]: Is it custom- Q. [Attorney defendant telling us? you what are [sic], is that
ery Yeah, yeah. A. Miller]: [Mr. way you were trained? that the
Q. Is Yeah. A. boom line?
Q. To hold on Yeah. A. harness, floating what get
Q. you When near on to? do then hold you Well, nothing on to have hold you don’t A. there, why, something I don’t know if there is
but we it. automatically grab a hold of just attempt not to hold a make an Q. you Would right to a sheave? next cable *23 Well, yeah.
A.
Q. Why is that? Well, get into one of you you know if A. because sheaves, tragedy. [Emphasis it’s added.] those 712 740 Opinion op the Court Thus, suggests although that hold- testimony ing might proper onto a line be some gantry circumstances, holding onto a line close to a might improper. Contributory negli- sheave circumstances, Jaworski v upon the gence depends Inc, Supermarkets, Great Scott 689; 403 272 Mich 2d, (1978); 57 Am Jur Negligence, NW2d § persuaded 692. We are not that the record p established "the correctness of the conclusively Plaintiff.” procedure employed by argues Plaintiff next that Hutchinson’s testi mony "inherently incapable unreliable that Hutchin being testimony believed” because following son admitted "fault” immediately accident. We note that at trial Hutchinson denied fault, explaining "probably that he was at he plaintiff would have said to comfort at anything” event, the time. In determination any credibility province factfinder; appel is within the late trial grant simply court will new be cause the court have drawn different infer may evidence, conflicting ences from the testi resolved in a different reached a different con mony way, credibility, preferred clusion on or even a different between permissible decisio-n as alternatives. Diamond, Thoms v App Mich lv den he, argues Plaintiff further as an because following apprentice, merely orders his cable, in stringing incapable foreman he was being negligent. found There is personally no "ordered” plaintiff evidence Miller hold fact, support; onto the line for it is gantry likely light that Miller would not have done so in of his doing so could be a Even testimony "tragedy.” assuming plaintiff, that Miller ordered actually example, grasp either verbally gantry sheave, chargeable line near *24 Bosak Hutchinson Court safety. Plaintiff, guard duty well his own apprenticeship, through years had his three erecting before, participated crane booms to know what seemed Miller testified doing. was he gantry grasping argues that his
Plaintiff also dangerous only because a sheave became line near negligently the crane "boomed down” Hutchinson standing that he cannot on it and men were while be protect failing to foresee held liable against negligence Testi- of another. himself "booming mony however, down” indicated standing common was a on boom with men jury practice. found that the Thus, could have moving possibility foreseeable. of the boom proper Finally, to instruct it was is clear that plaintiff’s comparative jury the issue of negligence. presence evi The above-noted question distinguishes from this case on the dence those found because upon by plaintiff11 where error relied jury
the trial court submitted by the on an issue not sustained an instruction evidence. VI
Issue erroneously instruct refuse to Did the court trial calculating jury its award to consider inflation damages? future requested instruct trial court Plaintiffs that the of infla- the effect it should consider damages. calculating plaintiffs’ future tion when would that such an instruction claimed Plaintiffs (reduction damages to future SJI 34:03 balance 53.03). They present value, asked now SJI2d Inc, 11See, Supermarkets, e.g., Great Scott Jaworski v 689; 272 422 Mich Opinion op the Court court to take judicial notice of the rise in the Consumer Price Index in formulating inflation instruction. give trial court refused to an inflation in-
struction: regard arguments, With to the other this Court *25 give
will not any regard instruction with to infla- tion. I don’t think appropriate is an instruc- tion and come many there are too variables that can play into and certainly this Court is not satisfied there is sufficient justify data to com- ments coming lips about inflation from the of the people Court which some carry weight think more coming So, than not attorneys. from the the Court will give an instruction on inflation. The Court of Appeals affirmed the decision of the trial court: case, Under the circumstances this we decline to find the trial court’s refusal to instruct jury it must improper. consider inflation to be
Plaintiffs
testimony regarding
introduced no
present or future rate of inflation. While the exis-
tence of inflation may have become "a fact of
life,”
present-day
Tiffany
Co,
The Christman
[v
App
(1979)],
We that take into account jury was entitled to making in its criti- today’s dollar reduced value of cized have been excessive assessment, past might in the and that what facts is not on the same Judged light, in today. such necessarily exorbitant say that this verdict is excessive. cannot we 1957), 15, writing (July of this very day theOn editorially some- observed Detroit Free Press judicially may and should notice: thing this Court stepped up has been pace of inflation "and trot.” In 1950 editorial from a crawl to a Reports prepared an American Law writers of living "Changes in cost of entitled exhaustive brief or in affecting money purchasing power 12 Co, Chesapeake supra; R Tiffany, & Ohio 134 Mich Kovacs v See lv gtd 974 App 581 422 Mich 351 NW2d 422 712
744 Opinion of the Court (12 ALR2d damages 611). personal injuries death” another, bringing (They might prepare well array with Free Press’ comparative into 1950 1957.) In such it is annotation characterization country generally that courts of this are shown personal judicial in agreed that injury cases should take review of verdicts into account the fact that place purchasing change power has in the taken living, awards; further, right money, in the cost of which damage in that may be reflected developments are so much a matter such economic of knowledge judges juries are common although expressly entitled consider them Security proven (Compare in Palmer v evidence Co, (1928)] Trust 242 Mich NW2d [60 [218 Trucking ALR Graham v United Ser- 694, Inc, vice, (1950)]). 327 Mich NW2d [42 [Normand, supra, 62.] urge: Plaintiffs noteworthy in it it The Normand decision is First, important propositions. sets forth two affirmatively that a can consider the states reducing purchasing inflation has on of effect second, power expressly it money; concludes knowledge that inflation is of such common
judicial may of it. notice be taken read Normand too broadly. We believe v Freeman As the Court of wrote Corp, Lanning 527, 531; 233 App (1975): only cases like stand for the Normand and principle need not be bound the size courts determining past whether a current awards they may Rather take note of award excessive. rising prices past due to inflation order large against charge justify verdicts of excessive- States, ness. See Williams United F2d *27 1970). (CA 1, Bosak v Hutchinson Opinion of the Court Freeman, had not reduced the trial court In value. The present to their damages failure to reduce argued that Freeman inflation, by rendered harmless value was present Normand, that, the trial according to claiming of the notice judicial was entitled to take court account the court took of inflation and that effect argument rejected The court of such effects. recomputation for a the case and remanded Dep’t Transpor- damages. Similarly, McKee tation, 727-729; 349 NW2d App 132 Mich remanded for reduction the Court McKee, In present to value. damage award normal "any stated that opinion trial court’s had is offset inflation.” present value reduction Id., 729. p in McKee that on the remark
Plaintiffs seize
current
inflation
finding was made as
[n]o
the case.19
that this was indeed
rate to illustrate
Co,
Tiffany
App
v The Christman
See
(1979). [Emphasis
that, finding, rather made such a if the Court had as- making statements and simply than blanket up- sumptions, would have of inflation. judge’s the trial consideration held is man- this conclusion do not believe We Tiffany McKee differs from dated. McKee, instructed unlike jury,
Tiffany 287. Tiffany, value. damages present reduce finding as to Therefore, had been a even if there McKee, as there was rate in inflation the current *28 Mich 712 422 746 op Opinion the Court to to the for failure reduce Tiffany,13 in error have existed. present value still would testimony no Further, case we note that this of rates as to current or future presented Air- Allegheny Feldman v Relying inflation. on (D Conn, lines, Inc, 382 F 1293-1294 Supp Co, R F v York Central 1974), 304 and Pierce New (WD Mich, 1969), the proposition Supp notice of statistics judicial that courts can take the the Bureau of Statistics of compiled by Labor Labor, sub- Department plaintiffs of United States reviews monthly the labor they mit that "offer[ed] Labor, from the year from of Department the for his review.” In Feldman forward, the judge to case, Pierce, however, unlike this there was in addition to expert testimony subject, on the noticed data. judicially instruc Michigan
The case affirm only R Chesapeake & Ohio Kovacs tion inflation Co, lv 514; 351 App gtd
There, Appeals of without the Court analysis, instruction, following finding affirmed damages law in Michi- contrary any "was of not gan”: considering the of jurors may, "You reduction present rendered in this matter to its verdict
worth, further of inflation on consider effect present worth and the amount of reduction find damages you plaintiffs have suf- which fered. "It you is for to determine from evidence damage determining damages,
whether today’s dollar should reduced to value of changes taking place purchasing in the due 13 Tiffany, In the trial admis the Court of affirmed court’s projected expert testimony wages which sion of on future lost wage percent annual increase as reflection inflation. 3Vi Hutchinson Bosak v op living well as as money and the cost power [Id., pp inflationary forces.” 534-535.] the re- us with provided have Plaintiffs argu- transcript instruction. quested however, instruction, indicates ment on the (thirteen rate specific to include a sought differs Thus, the instruction of inflation. percent) instruction, gen- was of a the Kovacs which from nature. eral mandating the not read Kovacs type
We do *29 light In in this case. requested instruction subject, on the we believe testimony lack the instruc give declined to properly judge trial per trial Moreover, judge note that we tion. made, extensive counsel mitted, plaintiffs’ And, effect of inflation. on the fact and argument knowledge common apply free to its fashioning in with inflation experience of and award.14 VII
Issue require as to err so the Court of Did in involved the crane ñnding reversal that, "non-operational” accident was be- indemnity agreement consequence, as a of the crane was and the lessee the lessor tween unenforceable? cci complaint against third-party filed a Hurley agree- on the lease part based indemnity for from Hurley. rental of the crane for cci’s ment alia provided inter agreement That "[l]essee loss, damage for responsibility all assumes the above operation resulting from expense dam- property personal injury equipment either . . . age .”_ (CA 6, 14 Co, Transportation 1117 Central 502 F2d See Bach v Penn
1976). 748 422 712 Mich Opinion of the Court trial,
Prior to cci summary judgment moved for for In Hurley’s indemnity.15 claim contractual motion, its brief support cci relied on Co, Armstrong Darin & v Agree Ben App 88 Mich lv den 406 Mich 128; (1979), 869 1007 NW2d public and stated that would be against "[i]t in policy Components coerce Concrete [cci] demnify Hurley damages Hurley’s caused by dicta, neglect.” In of Appeals own stated Armstrong, in Darin & 136: p read, provision Even if the could contractual circumstances, light surrounding in fying gence, as indemni- against negli- Armstrong Darin & its own against provision be void as would public 691.991; 26.1146(1); policy. MCL MSA Ford Co, 270; 274 Equipment App v Clark NW2d 33 lized 87 Mich (1978). provision uti- Nor could the be for indemnify Armstrong its Darin & negligence; concurrent tribution, this would be akin to con- by Michigan courts which forbidden compensation is Husted where involved. workers’ Co, 41; Consumers Mich Power 135 NW2d [v 370 (1965)]; Co Diamond Minster [Machine Co, 58; 248 Stamping App NW2d Products, Inc, (1976)]; Jordan v Solventol Chemical App *30 "this Darin acknowledged The trial court other seems to be at odds with definitely case cases,” on nevertheless relied of but Appeals Court Armstrong & the motion. Subse- Darin granting motion for Hurley’s judge denied quently, rehearing, writing: granting cci decision for the Court’s basis Hurley Hutchin- against and judgment
summary son’s third was no complaint was that there party Forsythe’s Hurley’s summary judgment sought on and Cci also indemnity. these issue here. of is at Neither for common-law claims Bosak v Hutchinson 1985] against cci in either allegation negligence that, Complaint Party Complaint or Third was, be no indemnifica- if there there could even them- Hutchinson were Hurley where tion that of negligent position would be and cci’s selves showing Court held that a joint tortfeasor. The indemnity negligence not authorize joint would of since contribution for an action would be tantamount forbid- against employer which Armstrong v Michigan Darin & under law. den Co, App 128 Agree NW2d Ben 869] [276 Co, (1979); 376 Mich Husted v Power Consumers NW2d [135 trial, pleadings to amend its Hurley At moved cci. allegations negligence against active add cci if it could be proven reasoned that Hurley on cci would be liable concurrently negligent, concurrent, indemnity agreement Hurley’s sole, de- negligence. judge than The trial rather nied the motion amend. appealed rulings these to the Court
Hurley
the con
where
Court
reasoned that
Appeals,
indemnify
intent
expressed
parties’
tract
sole,
concurrent,
negligence.
for its
but not
Hurley
Edi
Giguere
v Detroit
its
decisions
Relying
Co,
(1982),
son
452; 319
114 Mich App
Har
(1982),
Paquin
lv
den
In theory issue, but asserts not discuss citing paragraph pled, its affirmative from third-party answer to the filed its defenses complaint: Third- That, alleged to which contract 3. to as a basis for contractual Party Plaintiff refers the time of the loss not in effect at indemnity was question. may appellate inter- Also, continues, courts cci language indemnity agreements, pret interpretation necessary of the facts all called affirmance crane urge they present. Hence, for here are finding that the of the Court operational. was not Bosak Hutchinson Opinion op the Court *32 Appeals, was whether the issue of
In the Court unenforceable indemnification was of the contract ground public policy that on the of a matter Hurley cci from indemnification could not receive protected employer, plaintiff’s cci, as because provision remedy by liability of the exclusive from the wdca. question Appeals in answered this
The Court of reversing negative, the trial court’s basis thus the for judgment. granting summary However, the Appeals trial to affirm the court’s of went on Court premised summary grant judgment on cci’s of operable argument the at that the crane was not injury. determination, do With this we time of the agree. not Appeals Court, the of
In this inasmuch as Court cross-appeal by findings subject of not are the. the of cci, the is Court sole issue us consider regarding Appeals operability the decision crane. Appeals reviewing decision,
In
the
of
we
Court
independent
make our own
examination of
parties.
by
pleadings
arguments
made
filed
of
record indicates that
in
Our examination
Appeals
argued
cci
for the first time
actually operating
that
time of
asserted that
the crane was not
at the
although
originally
accident,16
it had
fact as
defense in its
an affirmative
complaint. Despite
third-party
answer
cci’s
eleventh-hour
resurrection
an affirmative de
Hurley’s
fense, we decline
invitation to
find
appeal. However,
the issue was waived on
we are
persuaded
the Court of
could
question
properly pass the mixed
law and
fact, inasmuch as
trial court had not
consid-
mary judgment,
ment
No
in
argument
support
of the motion.
its brief
on this
in
theory
support
was made in cci’s
thereof,
or in its counsel’s
motion
for sum-
argu-
Costs outcome; await final no costs to Bosak. *33 JJ., Brickley, Cavanagh, Boyle, Ryan, Riley, J. concurred with
Williams, I (concurring). C.J. While concur I sepa- reached write by majority, result emphasize holding to narrowness rately to regard plaintiffs damages with claim that were trial in- when the unfairly judge diminished reduce award for future structed to its jury value, refused a damages present give but requested instruction on inflation. Court, Supreme
The United States
consider
Longshoremen’s
ing
damage award under
a
Act,
Compensation
33 USC
Harbor Workers’
strik
recently recognized
has
necessity
ing
present
between inflation and
value.
balance
Pfeifer, 462
Laughlin
Corp
&
Steel
v
Jones
US
(1983).
2541; 76 L
768
A
103 S Ct
Ed 2d
of decisions in lower courts have reached
number
See, e.g.,
v
Morvant
Construc
similar conclusions.
(CA 6, 1978),
Aggregates Corp,
tion
F2d
cert
Doca v Marina Mercante
(1978);
dis
cate reversal of the Court of on the basis issue, inherently dangerous of the but activity ground rather on the that even if the trial judge erred on that issue the error to prejudicial was not the plaintiffs they judgment because obtained a against an apparently collectible defendant for the damages willing amount of the this jury to award. might if suspect
One the had also jury 422 by Levin, J. to subject Company Development Forsythe found pockets rather might being two liability, —there generous. That would more one —have been than not, however, generous a more have justified obligation to assess jury’s It was the award. one, there was regard to whether damages without regard without two, or more pockets or the on which liability of bases theories subject were found or defendants defendant the Hurley any suggestion Absent liability. uncollectible, failing error in any is Corporation inherently dangerous activ- submit order- against Forsythe justify does ity theory trial. ing a new
I of the Court reviews opinion and makes a number dangerous activity doctrine of that regarding application observations Court and the Court Although this doctrine. doctrine, no there applied have this the doctrine has been decision of Court where signed in an opinion and applied, considered an recovery by to allow majority justices, action, worker, following third-party in a injured from his compensation receipt workers’ employer. Court, opinion in the McDon
As noted
430; 201
Corp,
v
388 Mich
ough
General Motors
(1972),
opinions, none of
"produced
four
our
co-signer.”
more than one
Under
which had
decisions,
McDonough
is "not
authoritative
Court
interpretation
binding on this
under
decisis."
doctrine
stare
91;
Corp, 392 Mich
In Funk v General Motors
this Court ordered a new
220 NW2d
Slotkin,
Negri
It is one on the basis of social of land a nondele- impose to on the owner policy, persons injured who are gable duty protect street, public while are on the they highway, land, sidewalk, resulting or on their own from loss land, owner’s activity emanating from from the quite impose another on the owner a non- persons from loss delegable duty protect injured on the owner’s land. opinion
In two of the cases cited
Ass’n,
Inglis Millersburg Driving
Court,
169
Wight
v H G
(1912),
311;
Mich
136
443
NW
Co,
(1928),
Christman
208;
244 Mich
In Watkins v Gabriel Steel 260 Mich Court, 695; declaring NW 801 complete justify "the record is not a sufficiently recover,” per- entitled to holding plaintiff to maintain an action injured mitted the worker general injuries contractor result- against Co, 712-713; 303 374 See Smith v Allendale Mutual Ins (1981); Co, 422 Mich Roberts v Auto-Owners Ins J.). (1985) Levin, (opinion NW2d 905 Levin, J. area in work alleged negligence, ing from working injured, and was where than the other employees subcontractor *36 plaintiff; the employed injured who subcontractor Funk, recognized this where Court parallels this may supervisory have general contractor a areas.3 such work responsibilities Inc, Gaskin, v & 561; 305 Mich 9 Taylor In Utley (1943), the inher- the Court held apply dangerous activity doctrine did ently contractor, subrogee of by general action a an worker, the The against subcontractor. injured an opin- this Court cited the remaining decision of Carbon Court, is Grinnell Carbide & ion of the 509; (1937); Corp, Chemicals 282 Mich 276 NW product liability, an the action was cruiser, explosion cooking equipment of board of was in products liability at a time when law infancy. its
II
com-
I
further
would defer
consideration
dangerous
activity doc-
inherently
ment on the
it necessary
trine until decision in the case makes
the doctrine to
for the Court to consider and apply
in n 6 of
dispute.
opinion
As noted
resolve
Court,
Appeals
is divided on
of the
Court
of the doctrine
one defen-
application
where
from another. That
dant
seeks
indemnification
opinion
implicates
question
difference
inherently dangerous
constitutes
whether what
by
is a
of law to be decided
activity
question
submitted for
question ordinarily
Court or a
Court
opinion
by
jury.
resolution
to submit
appears
suggest
appropriate
is
Corp,
conclude that is dangerous.5 Recognizing that factual inherently danger issues in application volved in the activity by
ous doctrine must be decided the trier question fact, policy questions I whether large should be left at to be resolved the trier of submerged fact and in its verdict. problems
There are a host of which the Court assuredly should address,6 most but this is not the begin case to to do so._
4Aníe, p 728.
The Court
question
has held that
whether an
activity
dangerous
is an issue of fact to be submitted to
jury.
Telephone Co,
the
NW2d 711
Dowell v
App
General
85 Mich
(1978),
(1979);
lv den