*1 Anderson DeShambo v ANDERSON DeSHAMBOv 9). (Calendar 10, Argued No. March Docket 122939-122940. Nos. 23, July 2004. Decided brought an action in the Leelanau Circuit Court E DeShambo Robert Anderson, against R. and Pauline Nielsen and Charles W Norman injury. injured seeking damages personal while for DeShambo was Anderson, by working as an for who was hired Nielsens court, independent clear trees from their land. The contractor to J., Power, granted summary disposition for the Niels- Thomas G. inherently dangerous ens, determining logging is not an activity sophisticated and that the Nielsens were not landowners timber, knowledgeable cutting pre- inherent in thus of the risks inherently dangerous activity venting application of the doc- general rule that a landowner is not hable trinal injuries independent negligently causes. for that an EJ., Appeals, The Court of Fitzgerald, Holbrook, Jr., curiam, Cavanagh, JJ., unpublished opinion per reversed and in an remanded, regarding concluding question that a of fact existed reasonably anticipated inherent in whether the Nielsens the risks logging inherently logging and that the determination whether 233854). (Docket jury question The is a Nos. appealed. Nielsens opinion joined Justices In Chief Justice Corrigan, an Supreme and Markman, Cavanagh, Young, Weaver, Taylor, Court held: inherently dаngerous activity purpose is to of the doctrine nonliability eliminate of landowners for to innocent by inherently dangerous activity by indepen- parties occasioned Because the dent contractors on the landowners’ land. employee an contractor involved in the was an inherently dangerous activity, performance and not a third of the liability apply party, to create for the the doctrine does landowners in this case. only, concurring a land- in result stated that Justice Kelly, performance retaining dan- control over the
owner injury gerous be hable for an wоrk should employee, and in that the decision in this case contractor’s but Inc, Ormsby Welding, Capital Mich 45 could be [July- interpreted landowner, negligent, may escape to hold that such a if all caused to the of a contractor. That interpretation principles underlying would he inconsistent with the common law and with the tort reform statutes.
Reversed. Negligence — — Liability Employees op Independent Landowners’ Contrac- Dangerous —Inherently tors Activities. inherently dangerous activity
The nonliability doctrine eliminates injuries parties landowners for to innocent third caused inher- ently dangerous activity undеrtaken an contractor landowner; on the land of the apply the doctrine does not performing of an work. Theodore F. Fulsher for DeShambo. Cox,
Michael A. Attorney General, Thomas L. Casey, General, Solicitor and D. Joel McGormley, Assistant Attorney General, for the intervening plaintiff Depart- ment of Community Health. Menkes,
Bensinger, Cotant & (by Arndt), PC Dale L. for defendants Nielsen.
Corrigan, C.J. In case, we consider whether the inherently dangerous activity doctrine has been prop- erly extended to impose liability on landowners for injuries to employees of independent contractors per- forming dangerous work. We hold that the Court of Appeals has improperly doctrine, extended the contrary original purpose, to include injuries to those involved in performance of dangerous work. The purpose of the doctrine protect is to innocent parties injured as a result of an inherently dangerous undertaking. Because plaintiff was an employee of an independent contractor rather than a third party, the doctrine does not apply this case. We thus reverse the judgment of the Court of Appeals. DeShambo Anderson HISTORY AND PROCEDURAL
I. UNDERLYING FACTS and own and Pauline Nielsen1 Defendants Norman County, Michi- farm Leelanau on а 130-acre reside primarily gan. and to farm corn land is used The neighbor manages cherry operate A orchard. cherry operation, are not involved tree and defendants cutting pruning hired an Defendants or trees. in independent Anderson, fell and contractor, Charles up tops poplar delimb and to clean small trees property. logger previous had left on the that a trees previously experienced cutter, had Anderson, an timber woodcutting performed Under the ar- for defendants. rangement Anderson, and Ander- defendants between pay keep tops the tree for firewood son would parties poplar did that he cut. defendants for delimbing felling was not discuss how performed. help hired Robert DeShambo Anderson *3 plain- property. On him on defendants’ with work delimbing day work, he he was trees when tiffs first yelling. turned around and saw heard someone Plaintiff falling felled it. The tree a tree him as Anderson toward logs plaintiff then some hit on the shoulder and struck causing log spin, ground, strike him in the one on log pin tree. back, him and the fallen between paralyzed. left The incident has against negligence defendants Plaintiff filed a action subsequently Anderson, dismissed his claims but alleged, against alia, inter Plаintiff Anderson.2 negligence Anderson’s be- defendants were liable for 1 voluntarily against defendant Charles dismissed his claims Plaintiff appeal, party term to this Because Anderson W Anderson. only refers to the Nielsens. “defendants” paid through Michigan to recover funds also intervened The state of plaintiffs medical treatment. Medicaid for
cause timber cutting was ac- tivity. Defendants for summary moved ar- disposition, guing that plaintiff could not establish liability under any recognized exception to the general rule precluding of a landowner injuries that an indepen- dent negligently causes.
The trial granted court summary disрosition for defendants, ruling that logging was not an inherently dangerous activity and that defendants were not sophis- ticated knowledgeable landowners of the risks inherent in cutting timber. The Court of Appeals reversed, con- cluding that a question of fact existed regarding whether defendants reasonably anticipated the risks inherent in logging.3 The Court reasoned that defen- previously dants had hired logging companies to con- duct tree removals on their property and that defendant Norman Nielsen had admitted that logging was risky. The Court further stated that because plaintiff pre- sented evidence of the hazardous elements of logging, the determination whether logging is inherently dan- gerous is a jury question. granted
We
defendants’ application for
ap-
leave to
peal, directing the parties to address “whether
‘inherently dangerous activity’ doctrine has
ap-
been
propriately
beyond
extended
original
application to
only third parties to extend liability to landowners and
general
contractors for
to employees of indepen-
dent
doing
contractors
dangerous work.”4
3 Unpublished opinion
(Docket
per curiam,
22,
issued October
233854).
Nos.
(2003).
together
We ordered that this casе be submitted
Ormsby Capital
Inc,
Welding,
;
with
II. STANDARD doc- activity” “inherently dangerous Whether injuries include extended to properly trine has been injured who are contractors independent of law question work is while performing Likewise, review de de novo. we that this Court reviews summary disposition on a court’s decision novo a lower Preci- Nagel Co v Concepts Products & Quality motion. (2003). 364; sion, 362, 666 NW2d Inc, 469
III. ANALYSIS Michigan that long It has been established contractor is not an independent who hires person negligently the contractor injuries liable for 492, Erickson, 39 Mich Iron Co v Superior causes. Lake (1852). (1878); v 2 Mich Wright, DeForrest rule have devel- time, general to this exceptions Over activity” “inherently dangerous including oped, under protected of persons doctrine. The class a transformation since undergone doctrine has inception. doctrine’s
A. APPLICATION OF THE INHERENTLY DANGEROUS ACTIVITY DOCTRINE TO THIRD PARTIES inherently dangerous rise to the Early giving cases limited the activity exception doctrine Parker, 123 NW Rogers third In parties. an Court first discussed to a nonliability damages caused rule of general performance an contractor’s party by third party. harm to that likely of an act to do whether a landowner this Court was question before farm- to clear employed who damages neighboring property land was liable for *5 [July- Opinion of the Court resulting when a fire that the contractor had spread set land. neighboring This Court resolved the issue on statutory grounds, but discussed in obiter dictum the principles common-law that would have applied, stat- ing: relieving
[T]he
employer
rule
where the work has
independent
been committed to an
subject
contractor is
exceptions
the well-established
that:
thing
“If the
unlawful,
to be done is in
per
itself
or if it is
nuisance,
se a
or if it cannot be
doing damage,
done without
he
by another,
who causes it to be done
be the latter
servant, agent,
independent contractor,
or
is as much liable
injuries
may
happen
persons
which
to third
from the act
though
done as
person.
he had done the act in
itSo is the
duty
every person
of
person,
who does in
or
causes
by another,
done
an act
liable,
which from its nature is
taken,
precautions
others,
unless
are
to do
to see to
рrecautions
taken,
it that those
are
escape
he cannot
duty by turning
performance
the whole
over to a
(citation omitted;
[Id.
contractor.”
at
empha-
282-283
some
added).]
ses
In Inglis v Millersburg
Ass’n,
Driving
“The duty public, person, third party to the or is under a where done, carefully do, or is he is about to have to see that work cannot, by others, injury he as to avoid performed, so liability, it contractor, in case is letting his it to a avoid etc., Covington, injury of another.” negligently dоne to the (55 Patrick, St. 215 N.E. & 61 Ohio Bridge Co.v. Steinbrock (citations [1899], [Inglis at 320-321 cited. 618 and cases added).] omitted; emphasis 34
Thus, rule, come the above which has to be as known “inherently activity exception,” the duty founded on the on the existence of a behalf of landowner, contractor, employer or of an that duty must be of the type nondelegable. employer or landowner must also be aware that danger necessarily that it exists and involves danger others. Notably, type danger contemplated Inglis danger parties Court was to third those the dangerous activity. involved in
Over the
decades,
next sеveral
this Court reaffirmed
that,
doctrine,
under this
the landowner must itself owe
duty
specific
some
party,
that the negligent
injury
act
causes the
cannot
collateral
to the
for,
work contracted
and that
that occurs
reasonably
must be
expected
See
landowner.
Cary v Thomas,
616;
(1956);
345 Mich
B. EXPANSION INHERENTLY DANGEROUS ACTIVITY THE OF DOCTRINE TO A CONTRACTOR’S EMPLOYEES In City Warren, Mich Vannoy 158; 15 166 App of NW2d 486 the Court Appeals purported expand the the scope inherently dangerous activity doctrine to hold a landowner not to a hable third party, but the a estate of deceased of an indepen- dent contractor. The Court expressly rejected the land- argument owner’s that the applied doctrine only 35 v Anderson DeShambo of an indepen- and not to the parties third dangerous inherently in the engaged dent contractor limiting that The Court stated Id. at 164-165. activity. the “violate[d] absolute persons to third exception the Id. at 164. duty of the . ...” character Corp, Motors McDonough In v Gen a Court reversed (1972), a plurality NW2d landowner, conclud- for the defendant directed verdict activity excеption inherently dangerous the ing that the for liability on owner impose applied could be The employee. plurality to a subcontractor’s the rule that formulation of Justice COOLEY’s quoted in Inglis: this Court cited
“ job of work for me employ ‘If I a contractor to do a execution, obviously exposes which, progress in the of its think, responsible, perils, ought, I I to be to unusual others * * * naturally expose I to be done which cause acts ” 438, injury.’ [McDonough quoting Inglis, at others (3d ed), p Cooley 109.] Torts supra quoting at assumed explanation, plurality Without em- included the contractor’s quoted “others” above only рarties. and not ployees dissented,5 contending that the in- Justice BRENNAN “strang- herently dangerous activity exception protects himself plaintiff and does not to “a who was apply ers” activity.” inherently dangerous in the actively engaged McDonough at 453. His dissent stated: clear in application of this well settled injured person stranger to inher is a
cases where
ently dangerous activity.
Inglis [supra],
In
activity
plaintiff
burning, and the
was
was
danger
landowner;
[supra],
neighboring
in Grinnell
stove;
explosion,
purchaser
of a
was
Kavanagh joined
Justice Brennan’s dissent.
Justice G.
T.
*8
Indeed, there are no almost cases which have come to brought by notice in which the suit is or on behalf aof actively engaged who was himself in the inher- ently dangerоus activity. precedents
Those few which are cited seem to be upon grounds. founded other designed protect [T]he rule of is innocent parties injured by execution of an dangerous undertaking. designed, The rule is not nor was it ever intended to benefit the contractor who undertakes dangerous work, employees. or his
Thus, employ if I stump contractor to remove a tree my yard by explosives, from use of I my am liable to neighbor garage damaged by whose the concussion. This it project because is I motion; who have set the it is I peril; who have my created the unusual it is for benefit that explosives myself were my used. As between neighbor, ought permitted I plead not to be that it was negligence my contractor’s and not own which dam- aged property. his
But if the up truck, contractor should blow his own I expert should not be liable. He explosives is the and not [sic], me legal right I had neither the capability nor the supervise his work. The same would be true if the contrac- injured himself, tor’s injured by workman had or been carelessness of a negligence fellow workman or the of his employer. Neither the contractor nor his are DeShambov Anderson op Opinion the Court Cooley’s of the “others”, contemplated in statement as Indeed, creates they privy to the contract which are rule. peril. result, today’s decision is not but its mischief *9 company has like General Motors logic. One assumes that safety expertise. may have It well no want of access knowledgeable more about engineers payroll on its far employer. decedent’s But steel than the structural Olah, liability Inglis, Wight and here on the predicate other, many, many impose upon line of cases is to Watkins sophisticated the same burden to attend less defendants safety employees of contractоrs. of the 453-456.] at [McDonough, supra 712, 724; Hutchinson, 422 Mich In Bosak v Vannoy this Court relied on NW2d 333 for the that McDonough proposition occasion, has, on been dangerous activity exception danger- performing of contractors applied analysis of provide Court did not further ous work. This assembling a issue, however, holding that given case, that did hours, activity involved in crane after activity, but a con- not constitute a routine activity. Id. at 728. struction Further, Swope, App in Justus v in the (1990), on the trial court which NW2d stated, relied, the “The Appeals case Court instant far, has, thus activity doctrine inherently dangerous liability involving in casеs owners impose been found to danger.” Id. at capable recognizing potential fully and others. The Court 96, citing McDonough, Vannoy, homeowners,” “mere id. impose liability declined to on of an at that an a dead tree from removing while contractor sustained that it was yard. the homeowners’ The Court stated cognizant to be expect the homeowners unreasonable in tree removal. Id. at risks inherent particular Thus, 97-98. seemingly the Court would have imposed liability if the homeowners had been aware of such The opined risks. Court in that imposing case, however, was the fear that exactly Justice BREN- expressed in his dissent in McDonough. NAN
C. ANALYSIS analysis in Justice BRENNAN’s McDonough dis- sent persuasive and consistent the longstanding with principles common-law discussed in our case law. When a landowner hires an independent contractor to per- form work that poses peculiar danger harm, or risk of it is reasonable to hold the landowner liable for harm to third parties that results from activity. If an em- ployee contractor, however, of the negligently injures injured by himself or is the negligence of a fellow employee, it reasonable to hold the landowner *10 liable merely because the activity involvеd is inherently dangerous. As Justice recognized, the inher- BRENNAN ently dangerous activity doctrine was designed pro- to tect third parties, actively not those involved in the dangerous activity.
The Restatement of Torts echoes the principle. above Torts, 2d, § Restatement of provides: employs independent
One who an contractor to do work employer which the recognize likely should as to create during progress peculiar physical a risk of harm to special precautions taken, others unless subject are liability physical by for harm caused to them the failure of the contractor to exercise reasonable care to take such precautions, though employer even provided the has for precautions such in the contract [Emphasis or otherwise. added.]
Similarly, 2 Torts, 2d, § Restatement of 427 states: Anderson DeShambo v employs independent do
One who an contractor to work employer involving special danger others the a which or to know to be inherent in or normal to knows has reason work, contemplates has reason to the or which he or making contract, subject contemplate to liabil- when by contrac- ity physicаl harm caused to such others for against precautions tor’s failure to take reasonable such danger. [Emphasis added.] to “others.” provisions applies
The text of the above other necessarily persons The term “others” refers activity. directly than those involved in the Moreover, in the all illustrations Restatement §§ 416 and 427 involve to inno- pertaining parties directly cent to those involved activity. For the first illustration under example, provides: § 416 B, contractor, employs A an
1. to erect a building upon abutting upon public highway. land B, contract entrusts the whole work erection to requiring contains a clause the contractor to erect a suffi- necessary cient fence around the excavations for the erec- building. tion of the It also a contains clause which liability any contractor assumes all harm his caused digsB work. excavation but fails to erect fence. In C, consequence, walking along highway night, while at subject falls into the cellar and is hurt. A is to C. illustration, In the above C is an innocent third party directly dangerous activity. and is not involved in the Similarly, § in the following C illustration under 427 is an innocent third party: B, contractor, employs
3. A to excavate unguarded, a sewer in the streеt. B leaves the trench *11 warning lights, without and C drives his automobile into it work, danger in the dark. The inherent in the and A is subject liability to C.
Although a of this Court in cited plurality McDonough discussing §§ 416 and of the when Restatement inherently dangerous activity exception, plurality recognize failed to that the term “others” refers to third in parties, persons and not to those involved the dan- gerous activity.
The Court of in extended Appeals Vannoy improperly inherently dangerous activity doctrine to include contractors. We thus over- Appeals holding rule the Court of in Vannoy. We also reject this Court’s obiter dictum in Bosak to the extеnt approved that it Vannoy’s extension of doctrine. longstanding precedent, As our McDonough, before and clear, the Restatement make the inherently dangerous activity exception is limited to third parties.6
Further, as recognized Justice BRENNAN in McDon- ough, allowing liability to imposed be on landowners for injuries resulting to an independent contractor’s em- ployees necessarily liability will result imposed not only large on corporations fully capable assessing providing safety on precautions, but also “less sophisti- cated” may landowners who be unaware of such dan- gers or to рrovide precautionary unable measures Indeed, avoid the inherent in many risk. situations it may be the risk itself that prompts landowner to hire an independent in the first instance. A may contractor who specialize routinely engage in activity likely would be better able to perform the activity Likewise, in a safe manner. the contractor concurring colleague opines Our that an to this rule exists performed where landowner retains control over the work and is in a position adequate safety to ensure that the contractor takes precautions. presented Post at 42. Beсause these circumstances are not case, express opinion regarding we no whether a landowner who has may subject retained control over the work negligence. to a contractor’s caused the contractor’s *12 Anderson DeShambo v Opinion by J. Kelly, implement safety reasonable probably better able employees for the of its who precautions protection work, duty and this perform dangerous accordingly adhere to the lies with the contractor. We thus estab- lished common-law that this Court had con- principle sistently McDonough. followed before inherently dangerous activity exception
Because the apply injured party employee does not when the is an of than a third independent party, rather in the Accord- exception apply does not instant case. granted summary the trial court ingly, properly dispo- sition for defendants.
IV CONCLUSION inherently dangerous activity We conclude that exception parties apply is limited to third and does not independent injured contractors while performing dangerous work. Because was an employee of an contractor rather than a party, inapplicable the doctrine is in this case. Accordingly, judgment we reverse the of the Court of Appeals.
Cavanagh, Weaver, Taylor, Young, Markman, JJ., C.J. CORRIGAN, concurred with
KELLY, J.
in
I
{concurring
only). agree
result
with the
However,
by
majority
result reached
in
case.
I
this
separately
point
majority
write
out that the
takes no
cognizance
analysis
of the effect of
read
when
in
together with its decision
Ormsby Capital Welding,
(2004).
Inc,
I
The Court that a holds landowner is liable negligence injures for a contractor’s the contrac- in an employee engaged tor’s activity. Ante at The Court adopts 38. Justice BRENNAN’s *13 dissenting analysis in v Gen Motors2 and McDonough “ the legal right holds that the landowner has ‘neither the capability supervise [the nor con- ” at quoting McDonough tractor’s] work.’ Ante at alleged 456. The landowner here is not retained have job control of the site. indicated, previously
As a landowner to a liable if employee contractor’s he retained control over haz- positioned ardous work was to ensure that contractor took adequate precautions. Funk v General 91, 105; Corp, Motors 392 Mich 220 641 NW2d in part grounds by overruled on other v Mon- Hardy Inc, 29; santo Enviro-Chem Systems, (1982). NW2d 270 theory retained control doctrine is a distinct
liability.
applies
entity
It
where the
engaging
ser
of the independent
legal
vices
contrаctor has the
right
and the capability
supervise
the work. Plummer v
Co,
646, 659;
Bechtel Constr
440 Mich
This case was and submitted with together Inc. The in Ormsby Capital Welding, Ormsby Court doctrine, holds that the retained control applied to general subcontractors, contractors who utilize merely element of the common work area doctrine. It an independent theory liability. is not at Ormsby 55-56.
If Ormsby landowners, is held to apply the deci- sions here and in read Ormsby, together, could have unfortunate unintended results future cases. The inference to be drawn from them is this: a landowner who retains inherently dangerous control of on work job site will not be liable for to a contractor’s unless occurred a common work majority area. The the validity denies of this inference. However, Id. n at 60 13. the opinion’s language strongly belies that denial. statutes,
Under the tort-reform liability is almоst always only joint. several and not Legal MCL 600.2956. fault, is distinct from although it is based on fault. Fault is determined the trier of fact3 who it, assigns regardless of whether a can held party *14 600.6304(1). legally However, liable. MCL injured an party can only recover from a party can be held legally liable.
Under the preceding statutes, tort-reform the trier of fact assign can fault to a landowner who has directed the actions of an in engaged inherently dangerous activity. The opinions Court’s DeShambo and Ormsby interpreted could be to hold 600.2957(1). MCL
Opinion by J. Kelly, all escape landowner could liabil- negligent that such a of his contractor. caused to the ity for liable under the inher- cannot be held landowner DeShambo. Neither activity doctrine. ently dangerous the retained control doc- can he held liable under Ormsby. trine. inconsistent with
I that this result would be believe Moreover, it the common law. underlying principles with the intent of the tort-reform would be inconsistent legally to be negligent A actor is intended statutes. majority potentially actions. The under- liable his holdings in these two principle mines this with correcting language problem, cases. Absent unacceptable in the to me analysis majority opinion only majority. and I concur the result reached