*1 v General Motors 1974] MOTORS FUNK v GENERAL CORPORATION Opinion of the Court Liability Delegation 1. Master and Servant —Torts—Owner’s — Responsibility Contractors—Control—Nondelegable of — Implicit Duty Interest — Risks. —Public Ordinarily responsible injuries by is not for a landowner a caused delegated carefully contractor to whom he has selected the task structure, erecting responsible a but an owner is if he does if, truly delegate he retains "control” the work—or —if statute, duty guard rule of law or risk “nondelegable”; inevitably judg- made it becomes a matter of case, ment, case where to draw the line between so-called duties, "delegable” "nondelegable” and and tasks and in a case, given question facing policy court is a whether on the presented public imposition upon facts interest warrants person delegated duty guard against who has task the risks implicit performance in the of the task. Safety 2. Master and Servant —Construction Worker —Job —Em- ployer’s Responsibility. employer immediately The immediate of a construction worker is responsible job safety. Compensation Injury. 3. Torts — of Victims —Prevention policy compensation the law of behind torts is more than [1, 4, 7, [2, [3] [5, 11, [6-8] [12, [14, [19-28] [16] [17,18] [10] 62 Am Jur 9, 4] 74 Am Jur 53 Am 74 Am Jur 13] 53 Am Jur Master and 53 Am Jur Master and 53 Am Jur Master and 5 Am Jur 31 Am Jur 57 Am Jur 8] 13] 62 Am Jur Jur, 62 Am Jur 2d, 2d, 2d, References Trial 116. 2d, 2d, Premises 2d, Torts 2d, 2d, Negligence Torts 2d, Expert Appeal 2d, § 2d, § Premises §§ Liability Premises et 52, for Points seq. 71. Servant 147. Servant 195§ Error 948§ §§ Servant 139 et Opinion Liability 34.§ 6, Liability 295-302. § Headnotes § Evidence § 15. et §§ et seq. 12-22. seq. seq. §§ 26-32, 38, 151. 392 Mich encourage implementation victims; it seeks also rea- injury. safeguards against risks of sonable *2 4. Master and Contractor- Servant —Contractors—General Dangers Work Areas —Workmen—Prevention —Common of Injury Liability. —Owner’s part general
It is of business of a contractor to assure that supervisory steps coordinating its and reasonable within au- against readily observable, thority guard are taken to avoidable dangers high degree common work areas which create a of workmen; significant of risk to a number a "mere” owner because, ordinarily would not be rendered liable in contrast contractor, general typically profes- with a owner is not a builder, only sional most owners visit the construction site knowledgeable casually concerning safety and are not mea- sures, supervising job safety, providing safeguards, and is not part typical of the of the owner. business Safety 5. Master and Servant —Construction Precau- .Contract — Injury Liability —Owner’s tions —Prevention —Control. jury corporation, properly designated could hold a as the contract, owner in a construction liable for the failure to safety precautions provide safeguards observe and where the working relationship corporation actual evidenced that project; exercised a retained control of the construction it unusually high degree exercised an of control over the con- project very inception, struction from its its internal divisions up building plans, specifica- drew wrote the contractual tions, supervisor, directly and acted as architectural it hired including employer several of the contractors of a worker injured job, agreed by who was on the wrote the contracts only assigned those contractors and later the contracts to the general contractor, representative general its could order the any prime contractor to terminate or subcontractor within 24 hours, right hiring retained to continue additional sub- then, desired, assign contractors and if their contracts to the general contractors, contractor for coordination with the other representative daily job interpreting and its at the site specifications and, plans contract and for the by corporation on-the-spot inspectors, aided other he ensured "general provisions that the conditions” and other the con- fulfilled; being safety requirements, tract were these included quality performance work, protections, price of the fire restraints, completion deadlines. Workers —Prevention 6. Master and Servant —Construction Capacity Liability— Injury Superintending —Owner’s — Safety Precautions. superintending who acts in a an owner The law does not absolve high degrees knowledge capacity of risk faced and has responsibility failing require construction workers precautions. safety of reasonable observance Liability —Control—Accident 7. Master and Servant —Owner’s Safety Work Areas — Precautions. Prevention —Common supervision aspects representative’s over some An owner’s plant coupled prevention construction site with at a accident specifications, supervision of other and the own- his extensive overall-, day-to-day, project, supports dominance er’s actual, of, finding least tacit control if at owner of and, having safety highly visible common work areas in the job, the construction assumed a dominant role in owner can responsible implement properly for the failure to be held adequate safety precautions. Liability 8. Master and Servant —Owner’s —Construction Con- *3 Control—Negligence—Safety tract — Precautions. Liability implement adequate safety precautions for failure to is imposed upon every property not "to owner who into be enters corporation subject liability construction contract” but a is to a injuries plant in an action for to a workman on a construction job jury properly corporation, because a could conclude that the contract, despite designation its as owner in a construction ought retained and exercised sufficient control so that it to be responsible negligence failing implement held for its own safety precautions by general reasonable contractor and subcontractor. Torts—Slip-and-Fall (cid:127) 9. Master and Servant — Case —Construc- Enterprise Responsibility tion Contract — Injury —Prevention of Safety— Precautions —Contractors—Control—Find- ings Jury of Trial. —New Michigan Supreme persuaded imposi- The Court is not that the enterprise responsibility corporation, tion of on a which was owner, designated contract, qua as owner a construction justified job, is where it was not an unusual construction slip safeguards unique, and fall—was not reasonable risk— against injury readily provided by taking could have been well- measures, recognized safety appears to have the owner contractor, responsible, experienced selected a and therefore a owner-corporation, new trial should be which ordered as to the 392 Mich third-party had liable as tortfeasor for a been found work- because, although jury injuries, properly man’s could have against corporation on the basis returned a verdict of its control, may jury have found exercise of retained corporation theory liability on the alternative of owner have been submitted. which should not Compensation. 10. Torts —Workmen’s is, question torts, under law of The whether there an alterna- compensation recovery workmen’s tive source of is to be regard "similarly decided whether other without workmen situated” have such a source or whether a decision adverse to liability may deny any recovery alternative source or to a ' particular workman. 11. Torts —Contractors—General Contractor —Contractor’s Lia- bility Injury Safety of —Prevention — Precautions —Com- mon Work Areas. appropriate development impose It is of the law of torts responsibility implement on a contractor for failure to safety guarding against measures in work common areas read- observable, ily personal injury. avoidable serious risks of Negligence Contributory Negligence 12. — Fact— Question of — of Law. Question question negligence contributory generally fact, one law. Contributory Negligence Slip-and- 13. Master and Servant — — Evidence—Findings Jury Fall Case — —Job Environment —Property Owner —General Contractor —Construction Injury Safety Contract —Prevention — Precautions— Safety Indoctrination. adequate jury There was evidence could conclude injuries that a workman who sustained from a fall did not act unreasonably by going upon opening in the circumstances plant construction; jury a hole in the roof of a under could properly injury conclude that a cause of the workman’s was the *4 job general environment created the contractor the corporation, designated the as owner construction con- tract, regard which had conditioned him to work without conspicuous safety equipment absence of where his foreman instructed, you steel, up go had don’t want "[i]f to work in the home”, worker, plumber, previously and the a house had not project magnitude worked a construction of that and he was given safety no indoctrination. Evidence—Witnesses—Expert 14. Trial — Witness —Construction Practices —Discretion. expert regarding testify Allowing construction witness despite unfamiliarity Michigan relative practices his with discretion, projects Michigan was not an abuse of construction experience large-scale with national considerable where he had were extensive. other credentials and his construction Witnesses—Expert Slip-and-Fall 15. Case — Master and Servant — Work Areas —Prevention Beams —Common Witness —Steel Engineering op Injury Safety Equipment Safety —Con- — — Injury. Injuries of Conduct —Cause struction —Standard regarding dangers testimony expert inherent in An witness’s safety equipment working who de- beams without on steel safety engineering developing science how scribed the entities, by relying contracting on science’s advance- other ments, inju- significant reductions in construction achieved had establishing jury of conduct standard ries assisted defendants, they could contrast the efforts of the plant general and the owner of the where the falling working plaintiff injured in while on the workman construction, testimony plant under this roof of the which was contractor to take tended to show the failure observable, readily precautions alleviate avoida- reasonable and, ble, merely dangerous in common work areas situations roof, accident occurred on the and not the because worker’s beams, expert’s testimony any less admissi- does not make ble; though analysis, fell from on the same even the worker roof, beams, jury properly could conclude that and not the safety anytime anywhere provide any equipment the failure to working ground for men over 30 feet above the was the cause injury. in fact of the worker’s Dissenting Opinion M. S. Sequence
16. of Witnesses. Trial —Discretion—Order Proof — judge’s of a trial is controlled discretion and conduct ofproof sequence this includes the order and the of witnesses. Appeal Trial—Prejudicial 17. and Error — Error —Reversal.
Any prejudicial in error made in the conduct of a trial must be to warrant
order reversal. *5 392 Mich Industry 18. —Evidence— Trial —Reversal—Bias—Construction Expert Witnesses. against property general owner of General verdict and a where a bias contractor warrants reversal the construc- general particular per- industry and tion defendants rendering impossible proceedings, meated the to receive an and, impartial hearing fair if the of the facts case had been ñrst, much, presented unlikely any, if it is of the testi- mony expert would of an witness have been admitted. Inherently Dangerous Activity 19. Master and Servant — —Cor- porations —Homeowners. inherently dangerous activity applies only The doctrine of not to corporations, applicable equally any but to is or homeowners employ other citizens who others to do work them. Torts—Independent Master 20. and Servant — Contractor —Em- ployer’s Dangerous Liability Inherently Activity — —Third Parties. Generally employer indepen- is liable an not for the torts of an exception developed dent but an has been for activi- reasonably dangerous ties or tasks which can be foreseen as to parties, extending exception third with a few cases to employees; dangerous despite these include activities those all dangerous reasonable care and those unless care reasonable exercised; imposes liability upon this doctrine forma of strict employer independent contractor; however, the owner or liability such is not absolute. Inherently Dangerous Activity 21. Master and Servant — —Inde- pendent Injury Contractor —Unavoidable —Foreseeable Dangers. A defendant inherently should not held be liable under the dangerous activity perceives possibil- if doctrine defendant ity danger, steps prevent injury takes all reasonable from occurring injury unavoidably occurs; similarly, the owner employer independent or of an contractor should be re- not quired possible might to foresee all activities which a create dangerous injury. situation and lead to Dangerous Activity Torts—Indepen- 22. Master and Servant — — Employer’s Liability dent Contractor — —Third Parties— Damages. inherently intrinsically dangerous activity or exception, to employer rule that an is not liable for torts of Funk v contractor, designed prevent independent the em- responsibility delegating his or her eliminate ployer risks; exception the thrust of the was to foreseeable minimize circumstances; employer in certain it was impose duty on the single injured persons an designed class of afford *6 damages theory upon and the which to seek availa- additional nonemployee not be limited to bility the doctrine should of parties. third Dangerous Activity Inherently —Third Master and Servant — 23. Parties. Supreme ñt to limit Michigan Court has not seen inherently intrinsically availability of or dan- doctrine parties. nonemployee gerous activity third Dangerous Inherently Activity Ques- 24. Master and Servant — — Duty of Fact —Proxi- of Question tion of Law —Breach — mate Cause. duty question the circum- what there is under The threshold of deciding judge one of law for the when of the case is stances imposed liability under the doctrine of inher- is to be whether question activity; ently dangerous of whether there the factual any, duty, if is for the fact ñnder unless a breach of such disagree upon could no facts which reasonable minds there are whether the for the fact ñnder to determine and it is also any, proximate duty, if was the cause or cause of the breach of injury. Dangerous Activity Inherently 25. Master —Inde- and Servant — pendent Dangers. Contractor —Fall—Foreseeable duty question of what there is under the circum- The threshold deciding liability the case when whether is to be stances of inherently dangerous activity imposed the doctrine under defendants, property the owner of must be resolved in favor contractor, impose it and a because is unreasonable only upon duty the defendants a to foresee would contractor, independent plaintiff, employee act con- of an respects, trary to the of his trade in at least two but custom slabs, 200-pound proceed to lift turn them on the roof and back removed, through replace all the last and fall a hole but two removing slabs; by any required precautions left one of the dangers reasonably foreseeable would not have in- plaintiff himself. cluded hazard made Instructions—Dangerous 26. Trial — Work. quoting dictionary "inherently” Instruction common deñnition of dangerous "intrinsically” legal work
and was not sufficient as complex deffnition of so doctrine. Inherently Dangerous Activity 27. Master Servant — and —Inde- pendent Dangers Contractor —Foreseeable —Breach of Duty —Proximate Cause. inherently intrinsically Some of the elements the doctrine or (1) dangerous activity independent is work are: done degree high involving a risk relation to the speciffc involving surroundings speciffcpeculiar some risk or vicinity requires special, set of risks to those (2) care, probably unusual it is work which would result in (3) injury, danger recognizable there is risk or in advance (foreseeable) (4) requiring special precautions, special such (5) precautions taken, duty are not this breach of is the- proximate injury. cause or cause of Expert Testimony 28. Trial —Fair Trial — —New Trial —Evidence —Inherently Dangerous Activity Dangers— —Foreseeable Duty Breach of —Instructions. Case be should remanded a new trial where defendants were by plaintiff’s denied a fair trial failure to establish basic prior introducing expert nonexpert facts certain testi- *7 mony, by testimony pertinent to link failure such with the by plaintiff’s unnecessary "expert" facts and introduction of testimony probative prejudicial which had no value and much effect; may theory defendants not be held liable under a inherently dangerous activity they where could not foresee nor they reasonably expected could have been to foresee the man- occurred; ner in which the accident defendants have breached and, least, duty inherently no danger- at the instruction as to activity inadequate. ous was Appeal from Appeals, 2, Court of Division J.,P. H. Quinn, and J. and Valkenburg, Gillis Van JJ., reversing Genesee, H. Papp, Elza J. Submitted (No. 7, 1973. 1973, March 10 March Term Docket 53,928.) No. 2, Decided August 1974. Rehearing 22, denied November 1974. App
37 Mich 482 reversed. Complaint by against Ellis Funk General Motors Corporation and Darin Armstrong damages & for Motors v General Funk Opinion of the Court Judgment a from fall. for injuries sustained for judgment motions for not- Defendants’ plaintiff. denied. ap- Defendants withstanding the verdict Appeals. Order entered the Court pealed for judgment motions not- granting defendants’ appeals. Judg- Plaintiff the verdict. withstanding affirmed as Darin & trial court ment Motors Corpo- as to General Armstrong; reversed for a new trial. remanded ration and Philo, Harry plaintiff. for M.
Plunkett, (by Rutt & Peacock Jeannette Cooney, L. Malone Thomas W. Wat- A. Paskin [Ross kins, counsel]), defendant General for Corporation. Bowers,
Gault, Davison & defendant Darin & Armstrong. Funk, plumber, a journeyman
Levin, J. Ellis plant job. a seriously injured construction workmen’s compensation He recovered benefits Agree his a employer, Company, plumb- Ben ing subcontractor. action,
In returned a verdict for Funk jury this contractor, Darin & Arm- strong, plant, Mo- owner Corporation, tors whom Funk liable contends are for his third-party injuries. tortfeasors Appeals granted Court the defendants judgment notwithstanding holding verdict himself the dangerous had created condition *8 Funk injury. which was the immediate cause of his Corp, App (1972). NW2d 916 hung
Funk
piping
had
six-inch
from steel beams
of the
to a
superstructure
clear-span
of a
addition
General Motors ordered to 600 feet of the approximately piping. move piping, Funk climbed To move the onto the they had when were just initially beams as he he hung. position hammered the From this hooks slabs, holding piping. Because of roof which added, then had he was unable to been reach some onto the of the hooks and went roof. He removed injured when some slabs and was he lost his 30 feet ground. balance and fell more than immediate cause accident was the manner Funk chose to complete which assigned By removing slabs, task. the roof he opened a hole in the and then slipped roof and fell case, through opening. This says General Mo- tors, example who, "is a classic of the man in a sense, dug a and regrettably hole fell into it”. charges negligence in the defendants’ fail- implement ure to safety precautions reasonable for working men 30 feet ground. over above the He contends that General Motors and Darin & Arm- strong exposed him to injury avoidable by allowing subcontractors order men to work at dan- gerous heights any protection without from falls in a job environment expected laborers were to complete assigned their regard tasks without of safety absence equipment guarding injury in the event of a mishap.
The defendants counter that owners and contractors are not subject liability (Funk’s negligence of an independent employer, Agree), Ben and since Funk fell from the roof —rather than from the beams —the ab- sence safety equipment at the beams was not the cause in fact of his injury.
We conclude that while ordinarily the owner of a building under construction is responsible *9 101 General Motors Funk v op Opinion the Court job safety, for in this construction workers case properly Motors could be found to have subjecting sufficiently a retained control exercised implement liability failure to it to for the reasona- precautions. safety ble scope responsibility
The of a contractor’s depend the nature of the and will often risk safeguard precaution claimed to been have proper it was to omitted. In this case find Darin & responsible safety Armstrong for the omissions gave injury. rise to Funk’s Appeals We the Court reverse affirm the against Armstrong, but, verdict Darin & because error, a of instructional remand for new trial General Motors.
I Ordinarily responsible a landowner is not injuries by carefully caused a selected contractor delegated erecting to whom he has the task of a every exceptions. Most rule structure. has its This distinguished variety excep- rule is tions.1 of its responsible truly An owner is if he does not delegate he retains "control” the work—or —if duty guard if, statute, rule of law or against "nondelegable”. the risk is made
Inevitably judgment, becomes matter case by case, where to draw the line between so-called "delegable” "nondelegable” tasks and duties. given policy question facing case, In a a court (the largely judge-made) law of torts is is whether presented public on the facts interest warrants 1 proper say primarily "Indeed it would be the rule is now important preamble catalog exceptions.” as a of its Pacific Fire Kenny Co, 500, Manufacturing Insurance Co & Boiler 201 Minn 226, (1937). 277 NW Opinion the Court delegated has who a task person
imposition upon implicit risks duty guard task.2 performance of the employer of a construction immediate instance) (Ben in this Agree, immedi- worker *10 job safety.3 ately responsible whether, presented is in question The now case, immediate of this em- circumstances provide failed to having conspicuously any ployer this and safety equipment, this owner, knowledgeable of the fully employer’s dere- liction, require either to responsibility had the employer implement meaningful safety pro- gram supply obviously or to themselves neces- sary safety equipment.
II
Mishaps
likely
and falls are
occurrences
in the
of a construction
To
project.
completely
course
avoid their
is an almost
impossible
occurrence
However,
relatively
working
task.
safe
conditions
question
independent
"The real
in all
contractor cases is whether
may
Top
escape
a man
liabilities
'There seems to be no
'farm out’ or
connection with them. No
off some of his affairs and
general policy
forbids this.
* * *
compelling
why
lawyer
reason
should
shoes,
teeth,’
repair
liability
have to
outsiders for harm caused
things
his own
or
his
fill
own
or incur
by
doing
or the
cobbler
dentist
these
James,
Torts, 26.11,
Harper
p
for him.” 2
&
The Law of
1400.
§
1963,
408.711,
Safety
seq.;
The Construction
Act of
MCLA
et
MSA
17.469(1),
seq.,
Safety
et
authorizes the State Construction
Commis
"promulgate safety
regulations
inspection
sion to
and use of
rules and
for the
equipment
conditions,
working
upon
and for safe
based
accepted
generally
for the "construction
ployers
word
engineering
practices”
nationwide
and
standards
firms,
industry”,
defined as "construction
em
qualifications
and contractors” with
set forth in the act. The
"employers”
by
was added
amendment.
safety equipment
working along
for the men
represent
just
lapse.
steel did not
an occasional
many
The steel frame was a common work area of
trades. Iron workers who
[the] beams”,
"walked
pipe
although "they
electricians,
fitters and
gain
exposed
handholds”,
were able to
were
Throughout
especially precarious
similar
risks.
months,
winter
when snow and ice made condi-
subsequently,
hazardous,
tions even more
injury,
closer
time to Funk’s
it was obvious to
even the most casual observer that the men in the
safety
steel were without
there was no
harnesses or belts and
*11
safety
net under the men.4
pursuant
Collins,
Arthur
to his duties as archi-
tect-engineer superintendent
for General Motors’
Argonault Realty
constantly
Division, was
on the
construction site and observed numerous trades-
working
safety
men
on the beams with "no nets or
Similarly,
McCarty,
lines”.5
John
Darin & Arm-
strong’s project superintendent,
during his re-
peated
throughout
day”
job
"tours
site,
of danger
The
continual nature of
any
created
the absence of
safety equipment distinguishes
this case from several cited
Gen
Armstrong
eral Motors and Darin &
plaintiffs injury
in which the defect which caused
previously apparent.
was not
See Wilson v Portland
Electric,
385;
(1968);
Seattle,
Epperly
252 Or
frequently observed "safety safety belts or nets”. any never but saw law of torts is more than policy behind encourage It seeks also to of victims. compensation safeguards implementation of reasonable injury. risks of responsibility general on the
Placing ultimate in common safety work areas job will, standpoint, practical, from a economic render that the various likely it more subcontractors general being supervised by contractor will implement general that contractor will necessary precautions implement himself equipment provide necessary safety those areas. practical many only matter cases "[A]s
general
position
contractor is in a
to coordinate work or
provide expensive safety
protect
features
em-
* * *
ployees many
must
supervisory employees
or all of the subcontractors.
[I]t
recognized
that even if
be
subcontractors and
safety
are aware
violations
they
selves and are in
compel
2d
rectify
often are unable to
the situation them-
poor
position
too
economic
Owens,
superiors
their
to do so.” Alber v
66 Cal
(1967).
117, 121-122;
Rptr
59 Cal
This analysis would not ordinarily render "mere” owner liable.6 In contrast with a *12 6 analysis applicable employee Nor would this be where the of a subcontractor seeks to recover from another subcontractor. See Klov (1961). Fireproofing 1; Corp, ski v Martin 363 Mich 887 NW2d v General Opinion op the Court contractor, typically profes- the owner is not a visit builder. Most owners construction sional not knowledgeable and are only casually site con- See, e.g., Gonzales v Rob- cerning safety measures. Co, ert J. Hiller Construction 179 Cal 2d App (1960), 832, 835 where the Rptr 3 Cal owner was negligence of held not for the his contractor. liable daily He had been around the construction site to as progress watch its and was familiar with con- as is who "any layman struction work has seen a built, number them and who has invested job safety, providing them.” safe- Supervising guards, part typical is not of the business owner.
Ill Although designated contract General Mo- Armstrong tors as owner and Darin & contractor, working relationship actual evi- denced exercise General Motors of a retained Ford, See Bissell v project. control of the 176 Mich (1913). 64; 141 jury NW properly could hold General Motors liable for the failure ob- precautions serve safety provide safeguards. General Motors exercised an unusually high degree of project control over construction very inception. its internal Its divisions drew up building plans, speci- wrote the contractual fications, and acted as supervisor. architectural It directly contractors, hired several of the including Ben Agree, agreed wrote the contracts those contractors, and only assigned later contracts to Darin & Armstrong. Collins,
Arthur representative, General Motors’ testified he could Darin Armstrong order & any prime terminate or subcontractor within hours. right General Motors also retained the *13 91 392
106 Opinion Court the subcontractors and hiring additional continue to Darin contracts & desired, their assign then, if with the other con- Armstrong for coordination tractors.7 interpreted the job at daily site — Collins — Darin & Arm- plans for and specifications
contract on-the-spot Motors General Aided other strong. "general condi- that he ensured inspectors, contract were provisions tions” and other requirements, safety included These being fulfilled. work, protec- fire performance and quality completion deadlines. tion, price restraints which state that on cases Motors relies contractor for a general a engages an owner who not, by retaining right a does project construction inspect the work duty a assume inspection, of the various subcontractors.8 equipment practices however, not, an owner absolve he law does T and has capacity superintending in who acts a faced con- degrees of risk knowledge9 high 7 56, 614, 60-61; Junkans, 117 617 18 2d NW2d v Wis See Lee jury’s (1962), finding dwelling to an also himself and electricians”. Supreme sustained a of Wisconsin Court where employed to construct a had a contractor that an owner who subject liability and was retained control had nonetheless job “personally and and injured worked on The owner workman. necessary job,” purchased for the of the materials some excavators, plumbers, "engaged tradesmen as the such other (CA 8 1969), 525, 6, States, Gowdy 529 cert 412 F2d See v United (1969); 437; Lipka 960; 425 v United 90 S Ct 24 L Ed 2d den 396 US 1966) (CA (ND 2, NY, 1965), States, (discussed Supp 369 F2d 288 F 213 aff’d 249 infra). 11, in fn Armstrong may properly Motors nor Darin & Neither General they complain defect”. notice of that did not have "actual or constructive (1964). 43, Zeitz, Sposito In 127 NW2d See 23 Wis 2d (CA 1972), 4, Co, 998, 453 F2d Summers v Crown Construction general jury favor verdict Court affirmed an ent was aware of a defect superintend general employee contractor’s of a subcontractor. The which caused crane the subcontractor’s repaired replaced: nothing employee’s injury, did to have it but part failure of from the "We affirm because the accident resulted general retained control it had contractor to exercise the broad Co, safety practices job”. Munson v Vane-Stecker over on the Contrast v General Opinion of the Court responsibility failing struction workers from of reasonable require safety precau- observance tions. concern for
Collins’ adherence to con- tractual was relaxed when it requirements came to requirements. observation of He safety maintained "prerogative was not General Motors’ *14 job”; direct on the it "was safety general However, he duty”. report contractor’s did "any- thing obviously wrong dangerous” that was John McCarty, supervisor, Darin & Armstrong’s expected him to it. correct The activities of Collins and assistants prompted his McCarty to defer to some extent to Collins in the area of safety, just as he deferred to in Collins other areas. supervision
Collins’ aspects over some of acci- prevention, dent coupled with his extensive super- vision of specifications, other and General Motors’ overall, day-to-day, dominance of the project, sup- ports of, a finding actual, if not at least tacit by control General Motors of safety in the highly visible common work areas.10 (1956), Garczynski 347 Mich Armstrong, 79 855 NW2d v Darin & (CA 6, 1970), Constructors, Inc, 420 F2d 941 F2d 111 knowledge failure to observe and Peter v Public 368 (CA 3, 1966), any where the evidence did not tend to show part on the of the contractor of a defect or of precautions. safety 10 agree, paraphrasing States, 634, We Eutsler v United 376 F2d (CA 10, 1967),that neither an necessarily owner nor a contractor is in legal duty impose violation of a because it has undertaken to certain safety precautions in impose some areas and has failed to similar precautions all in areas. General Motors’ safety selective enforcement of obvious derelictions impose duty does not ments. It cised control. The safety itself require- on to enforce all does, however, represent an indicia of retained and exer- pervasiveness of the control General Motors represented just more Lipka than an "isolated occurrence”. v United States, supra, 216, p judge where the trial sat as trier of fact and his findings of liability part nonexercise of control and of no on the of the government See, also, appeal. were sustained on Sword v Gulf Oil (CA Corp, 5, 1958), 251 F2d 829 where the evidence did not establish representative gave any the owner’s concerning safety directions practices. op Opinion the Court everything safety, else, most like costs Job acquiescence money. Motors’ Darin & General require provide Armstrong’s or to itself failure provide safety repre- devices the subcontractors expenditures. saving in sented did more than observe being properly per- Collins and his assistants contract whether they many instances, said, what In left
formed. unsaid, per- the work how would be determined safety job knowing their In the area of formed. encouraged, acquiescence nonperformance if not gen- legitimized, derelictions sub- Having assumed a dominant contractors.11 eral job, General Motors can role this construction responsible properly implement be held the failure to adequate safety precautions. response questions posed by
In General liability Motors, "no”; is not "to we answer be imposed upon every property owner who enters liability into a construction contract”. Nor is posed im- "merely [it] because is a *15 large corporation, individual, rather than an or perhaps partnership”. a subject liability
General Motors is to because a jury properly Motors, could conclude that General despite designation owner, its as and retained ought exercised sufficient control so that it to be responsible negligence failing held implement for its own to safety precautions by
reasonable
general contractor and
Qui-
subcontractor. See
11
Co,
182, 186;
Compare
Cauldwell-Wingate
Broderick v
301 NY
(1950),
general superintendent
general
NE2d 629
where the
contractor,
safety precautions,
when asked about
told a subcontrac
emoloyee,
going
are no
Go
It is
tor’s
"There
shores
there.
ahead.
Co,
right.”
Mahony-Troast
all
and Trecartin
IV explained The judge generally trial the jury a responsibility to guard obvious, risks. avoidable She instructed Armstrong that Darin & owed "to duty provide and proper supervision inspection as was neces- sary” stop changes and "to or order work if it saw through agents or employees its obvious derelic- Agree tion Ben She duty Company”. defined view”, "open "obvious” as "dereliction” as "cul- pable neglect”, "culpable” as "deserving or blame censure”.
The judge jury instructed the that General Mo- tors would be liable if the work assigned Funk was "inherently, intrinsically dangerous”. de- She fined "inherently” "belonging as na- very ture of thing”, "intrinsically” "arising the true or thing”. fundamental nature of a large-scale risks inherent construction imposing work justify responsibility responsi- on person to appropriate ble take precautions. How- ever, as the authorities parties cited illus- trate, generalize is difficult to as to party or entity should bear this responsibility. instances,
In some
risks,
as to some
it will
appear unwarranted
to impose the responsibility
anyone
other
than the
employer
immediate
12In
engineer’s
inspec
cited case the owner was held liable. Its
job
week,
tor visited the
two or three times a
knew that
the trench
gave way
required by Pennsylvania
which
never
was not shored as
law
gave
shoring
instructions that
was to be installed. The Court
support
findings
found the evidence sufficient
of retention of
*16
concerning
performance
control
the owner
the
contract
negligent
having
the
required
that
owner was
in not
conformity
shore the
requirements
trench in
with the
of law.
Mich 91
392
110
Opinion of the Court
workman,
he be a subcontractor
whether
circumstances,
In other
contractor.
general
of additional
here,
reason
fac-
appear,
will
imposed
should be
on
tors,
responsibility
that
others, nothing
In still
short of
contractor.
general
enterprise
responsibility
imposition
complete
with the developing
owner will be consistent
of torts.13
policies of the law
job.
construction
an unusual
This was not
unique.
not
Reasonable
slip and fall —was
risk —
readily
could
have been
safeguards
against
injury
taking well-recognized
mea-
safety
provided by
to have selected a re-
appears
The owner
sures.
contractor.14 We are not
experienced
sponsible,
imposition
enterprise
re-
persuaded
owner,
owner, qua
justified
sponsibility on this
and,
therefore,
order a new trial as to
because,
could
although
jury
have
verdict
General Mo-
returned
properly
control,
tors on the basis of its exercise
retained
13
734;
Sanitation, Inc,
Compare
App
19 Cal
3d
Widman v Rossmoor
District,
(1971),
Moulton-Niguel
Rptr
Stilsoh
52
v
Water
97 Cal
(1971),
928;
Rptr
Allegheny
App
98
914
v
21
3d
Cal
with Celender
Cal
390;
(1966);
Sanitary Authority,
Super
County
Chaney
222
208 Pa
A2d 461
61;
App
City
Authority, 12
Div 2d
v
Transit
New York
(1960);
Armstrong, supra;
Garczynski
v Darin &
Lender
NYS2d
(1904).
Rockford,
Village
ink
135 Mich
statutory liability employer immediate under the workmen’s com- law, the owner pensation responsible, unless regard without to whether he exercises a retained work, control of the a workman may have a source of under the law of recovery Imposing torts. liability might prompt tort on owners them require greater part care on the of a employer contractor or immediate aof workman. 1952, Compensation In the Workmen’s Act was provide amended to acceptance that of com pensation benefits shall not act as an election of remedies15 liability and "the third party” [a] might tortfeasor be enforced. It provided is further that an action to enforce liability of a "[i]n plaintiff third party, may recover any amount which the or employee dependents his or personal representative would be entitled to recover in an action tort”.16 legislative
This torts, reference to the law of if a workman providing effect has an 1952, injury Until where the "was caused under circumstances creating liability person employer pay in some other than the damages”, employee option proceeding against an had an at law party against employer compensation the third act "but not under the both.” 1948 CL 413.15. 155, amending 413.15, presently 418.827; 16 1952PA 1948 CL MCLA 17.237(827). MSA op Opinion the Court recovery under the law of source alternative action, may is bound to an maintain he torts produce workmen will have Some results. erratic recovery, while others will source alternative not.17 legislative premise of the reference
An unstated development of that is that torts the law of impeded body nor be stimulated neither of law will deny a create or work- would the result because *18 recovery to alternative workmen’s of man a source compensation. question is, under the law of there whether
The recovery of to work- torts, source an alternative compensation re- to be decided without is men’s "similarly gard situ- other workmen to whether a decision source or whether have such a ated” adverse deny any liability may alternative to particular recovery workman. source of already however, satisfied, for reasons areWe is an stated, appropriate impose responsibility of this case on the facts development torts to of the law of for implement safety measures in common failure to against readily guarding observable, areas work personal injury. The risks of serious avoidable liability, of re- Motors’ exercise of General basis long control, been established. tained has
VI "negli- contend that Funk’s The defendants going gence” leaving to the the steel beams and complete mat- them as a his task absolves roof responsibility injury. any for his ter of law jury properly cause of that a A could conclude had, example, the addition itself built If General Funk, compensation directly employed plant had workmen’s the would remedy. clearly have been Funk’s exclusive v General Motors Opinion op the Court job injury environment Funk’s was created had the defendants which conditioned him to work regard conspicuous without absence of Agree equipment. safety The Ben foreman had up you instructed, "If don’t want to work in the go plumber, Funk, steel, previously magnitude. a house home”. had not project
worked on a construction of this given safety no He was indoctrination. question contributory negligence gener- ally adequate fact, one not of law. There jury evidence from could conclude that unreasonably Funk did not act in the circum- going upon opening stances a hole in the roof.
Normally, contributory negli- our review gence However, defense would now cease. since a new trial of the claim General Motors has ordered, been we have considered whether contributory negligence recovery defense of bars may reasonably where the the trier fact find that provide safety equipment necessary failure injury. was the cause in fact ordinary18 Courts have found defense of con- *19 tributory negligence inapposite predi- to a claim legislatively-imposed safety cated of a breach regulation: present plaintiff, "Workmen ply such as the who scaffolds, their livelihoods on in scarcely ladders and are position protect to They themselves from accident. usually have no equipment choice but to work with the hand, at recognized though danger large. legislature looms and, guard against this to the known haz- occupation, ards of required the employer to safe-
guard the injury workers from by faulty caused inadequate equipment. If employer could avoid this 18 plaintiffs "gross negligence” If a malfeasance constitutes amount ing principles Redding apply. to recklessness different See v Bowman . Co, (1971) App & 145 US DC 449 F2d 956 91 392 op Opinion the Court duty by pointing negligence to the concurrent of the using equipment, injured worker in the beneficial might
purpose of the statute well be frustrated and Koenig Corp, nullified.” 313, v Patrick Construction 298 NY (1948).19 133, 318-319; 83 NE2d We why discern no reason principle same should govern if the trier of fact finds that employer-defendant’s breach of a common-law safety duty provide equipment is the cause in plaintiff’s fact of injury. In Milford Soronen Olde Inn, Inc, 582, 592; 630, (1966), NJ 218 A2d Supreme New Court Jersey ruled that defense of contributory negligence may not be asserted in a common-law action a tavern who, keeper regulation violation of a Division Beverage Control, of Alcoholic negligently sells alcoholic beverages to a visibly intoxicated person and proximately causes or contributes resulting his injury: accountability "The the tavern may not be [of owner] diluted patron the fault of the for that would tend to nullify very being aid patron afforded. Since the has danger
become a position himself and is in no self-protective care, exercise right proper the law view responsibility as that of the tavern keeper (Emphasis supplied.) alone.”
VII The defendants also contend that the testimony Jenkins, of Robert witness, Funk’s expert should not have been admitted because he was not quali- fied to testify regarding practices construction Michigan.
Despite his relative unfamiliarity Michigan with 19See, also, (CA 2, 1939), Army, Osborne v Salvation 107 F2d 929 *20 Co, Redding supra. and Bowman v & Funk v op Opinion the Court Jenkins had projects, construction considerable large-scale with experience national construction. extensive. It His other were was not an credentials him to allow to testify.20 abuse of discretion The defendants also contend because Funk on the after injured working was while roof leav- steel, ing testimony regarding Jenkins’ dangers working on steel inherent beams with- equipment out was irrelevant safety immate- rial. erroneously
This focuses argument on cause mishap. of Funk’s Jenkins described the develop- ing safety engineering science of and how other entities, general contracting relying advancements, significant science’s had achieved injuries. reductions in construction His testimony jury establishing assisted the a standard conduct they could contrast efforts of typical the defendants. The juror little informed, aware, if even of the scientific basis of safety engineering progress and the of the science. testimony
Jenkins’ tended show the failure of take precau- reasonable tions observable, to alleviate readily avoidable, dangerous situations in common work areas. Merely because Funk’s accident occurred on the roof, beams, and not the does not make Jenkins’ testimony any less admissible.
On the analysis, same even though Funk fell roof, beams, and not the jury could properly conclude that provide the failure to any safety equipment anytime anywhere for men 20 The defendants also assert that reversible error was committed by permitting testify order”, Jenkins to "in reverse and before a upon factual foundation had been laid which he could base his testimony. objection The substance of this is that Funk’s "backwards” presentation facilitated the admission of irrelevant and immaterial testimony. objected-to testimony properly Our conclusion that the objection. admitted moots this *21 91 Mich Coleman, Dissenting Opinion by M. S. J. ground
working 30 feet above over injury. Funk’s cause fact of trial court judgment The affirmed as to Funk; Armstrong Darin & with costs to and re- Motors and versed as to General remanded for a to abide the event. new trial with costs J., Kavanagh, Kavanagh, T. T. M. C. G. Williams, JJ., Swainson, concurred with Levin, J. (dissent). Coleman,
M. S. J. The majority opin- concepts represent ion creates a significant departure from time tested theories of tort liabil- ity. Landowners must now disavow all but personal most casual interest in projects under- taken on their property or assume responsibility any for injuries. on-site General contractors must now be prepared to assume responsibility any injury by employee received of a subcontrac- tor, no negligent matter the employee how be. may
This alone would warrant my dissent. Addition- ally, the manner in which the trial was conducted denied hearing. defendants a fair I would reverse and remand for a new trial as to both defendants.
The majority opinion has not been directed to the issue of law which prompted grant of leave appeal. We were to perimeters describe the theory intrinsically and inherently danger- ous activity. The majority opinion has done noth- ing to untangle the snarl created our 2-2-1-2 vote in McDonough v Corp, Motors (1972). 201 NW2d 609
This case has been used to advance theories of employment relationships which render can property owner and the general abso- lute insurers for any injury received the em- v General Dissenting Opinion by M. S. independent of an contractor. ployee Under any circumstances, I have reservations would concern- policy of such and its ing social value relation- case, ship to rules of law. Under facts of this I find such theories indefensible. compensation
Our laws workmen’s have insured will not injured uncompen- workmen be left sated. Mr. not left uncompensated. Funk was employer not cite Mr. Funk’s negligence could own 411.1; aas defense. See MCLA MSA 17.141. The *22 Court has Mr. Funk afforded two additional ave- nues of recovery and has allowed him to proceed fear being without of called to answer for his own negligence.
Like the Appeals, Court of I easily could con- clude that Mr. Funk so obviously contributed brought about his mishap imposing own that lia- bility on general the and the property owner would be unwarranted. The facts will dem- onstrate this contention. prefers The Court negate will, however, these facts. I approach this matter on issues other than negli- contributory gence. relationship
The of the defendants’ size to the ultimate result grease has been like to the wheel. It makes much proceed easier to point from one However, to another. the theory adopted must fall equally upon large small, the and the upon the corporation individual, and upon the large the landowner and small homeowner.
This dissent will first detail the facts. They clearly indicate the extent of Mr. Funk’s responsi- bility for the accident. It will then show how the defendants prejudiced were by the manner which the trial was conducted. This alone would call for a new trial. Finally, explain it will my understanding Michigan precedent dealing 392 Opinion by Dissenting M. S. inherently intrinsically and theory
with dangerous activities.
FACTS this case were not true and issues facts of a veritable blizzard of because easily discernable facts, charges arguments, alleged and counter- charges (including a by claim defendants argument oral briefing and inaccurate record, read briefs has The writer plaintiff). tapes argu- the oral opinions, has reviewed following basic facts ments and finds emerge as reliable. Funk,
Plaintiff, injured February Ellis Flint, 27, working he fell while when Agree Ben Com- Michigan. employed He was had contracted with General Motors pany which GM) (hereafter Corporation designated supply A. work on an C. pipefitting and related plumbing, building. This contract had been as- Sparkplug Armstrong, contrac- signed to Darin & owned the employed tor. GM architect property. *23 24, 1967, foreman in February the Friday,
On system the came charge installing sprinkler to Agree charge the Ben foreman in Strang, Calvin feet installing complained He that 600 pipes; to Mr. sprinkler pipes. were too close the pipe a agreed that he made mis- Strang probably had pipe that he have moved. take said would repre- to Strang employer’s Mr. failed his notify sentative, the archi- project superintendent engineer of this tect situation. Strang plaintiff told following Mr. Monday go up to Eddington, apprentice,
and Dennis pipe the roof and feet under move two Funk v General Dissenting Opinion by M. S. hanging was pipe lengths. north. The 40-foot It to beams by was attached the steel J-hooks. Mr. Strang to a told the workers use hammer to move installed, hooks. the roof slabs had Where been push edge were they up to each slab which beam and resting was on steel move J- along. They hooks were work from the lower steel under level the structural the roof. nearly pipe moved,
After 400 feet of had been part a roofing the workers came to of the which informing foreman, was stuck. Without (The went apprentice up on the roof. roofing was working subcontractor another area.) hatchet, With a they chipped away ice which had collected around the roof Using slabs. crowbar, they moving succeeded four slabs each, weighing pounds over turning them back onto the roof. Reaching solid down through the holes, they moved the J-hooks. (or
When came they ventilator shaft heat duct), two pulled slabs were from under the metal surrounding skirt the shaft. The workers did not move the slabs completely. They left were in a "teeter-totter” fashion on a diago- beam ran nally beneath them. position Because of the J-hook, Eddington preparing was through reach the ventilator and was his hands and knees.
What happened interpreted here is differently by plaintiff and the assistant. Plaintiff states that he kneeling near one of the holes created removing a using slab and was his hammer push up himself when he slipped or the hammer slipped. He stated that he reached the protru- sion up which came a foot or so around the venti- lator, missed and fell on the "teeter-totter” slab. Eddington
Mr. plaintiff testified that was stand- ing, kneeling, when he fell. The assistant said *24 Dissenting Opinion M. S. up to the right side of the came the steel
that Therefore, had intended to he reach the ventilator. go through and through the ventilator J-hook back the slab. Mr. Ed- by pulling made the hole kneeling position from his up dington had looked his standing on feet. He then heard plaintiff to see back down ventilator as he looked a "holler” plaintiff falling to see up again feet and looked pulling left by through opening first back slab. event, fell the floor plaintiff
In beneath any injured. and was that he did not
The claimed that foreman know roof until after Mr. on the the fall. Funk was GM claim that Armstrong they Darin & and had moving knowledge pipe and no no plaintiff that was on the roof knowledge any at time. Funk, Mr. noteworthy journeyman
It that (1) 17-years experience, plumber pipefitter and from his failed to ask instructions foreman directed, other than as proceed when he wished to (2) into the line” the work of another "crossed Mr. Funk affirmed that he would subcontractor. only his He if take orders foreman. said that his any other craft "crossed over” into area of he responsibility, complained have to his would wrong steward. He admitted that this was of the trade. contrary custom was tried before a The jury. judge case trial plaintiff had stated that find defendants liable prove preponderance that evidence guilty negligence were and that such defendants negligence was proximate cause of the acci- Negligence dent. was defined of a "violation imposed It show legally duty.” was sufficient acted, or both either defendants *25 Coleman, Opinion Dissenting M. S. J. act, was in a manner which failed to reasonably and careful. prudent plaintiff a duty said to owe to
GM was hire No other contractors. duties were competent re- quired unless the found that jury custom and required of the was such as usage trade GM to protect that GM such workers or had retained control of site. the construction
GM to liable if the was also said be work was intrinsically dangerous. or inherently This exception general to the rule that the owner is not negligence independent liable for the contrac- provided following tors. The court definitions: "Now, by inherently? going what do we mean I am to dictionary turn to using and let the record show that I am Digest dictionary of the Reader’s Ency- Great clopedic Dictionary. Forming permanent Inherent: a and or quality. belonging essential element It means to very thing. nature of the gentlemen "Intrinsically, jury, ladies and ac- cording dictionary, belonging arising or the true thing. or fundamental nature of a Essential: They together. Inherent. are almost I think that it is type quality of the work.” The jury (upon returned verdict what know) theory do we both defendants $150,000 August 8, 1969. Requests for a judgment n.o.v. were requests denied as were the for a new trial.
The Court Appeals granted defendants’ mo- judgment tions for a App n.o.v. 37 Mich (1972). NW2d 916 The reason for the injury said to have "a been hazardous condition created by plaintiff and his assistant without the direction or knowledge of either defendant.” The Court rejected the theory inherently dangerous work 392 Dissenting Opinion M. S. saying the "record contains no sup- factual port for this theory.” TRIAL
CONDUCT OF problems initial this case is that One prejudicial irrelevant large amount of mate- jury this Court. It rial was delivered this expect jury to sort out was unreasonable effectively apply facts and the law proper We are care- given exceedingly the instructions. what reaches the ears and Michigan ful about *26 in criminal cases and increasingly of the eyes jury to the in goes jury in what civil cases. permissive point, case is in some effort should be Because this the give made to direction to trial court which is present caught Scylla plain- between the of the at Charybdis tiffs bar and the of the defendant’s bar. present presented The case was in reverse order. expert and testimony nonexpert witnesses assumption the permitted was would be in applied presented to facts later the case. Much inflamatory irrelevant and material was admitted (partially through counsel’s own testimonial re- marks questions) spe- and and not connected with jury cific facts. This could have left with opinions impressions and which were An indelible. pervades aura of fundamental unfairness the testi- finding and to the mony doubtless contributed Appeals. the Court of Michigan
It
is
letter
law” in
that
"black
conduct of a trial
is
controlled
exercise
judge’s
proof
discretion. This
the order of
includes
sequence
and the
of witnesses.1 This Court has
1
Watson,
168;
605;
Rep
See Watson v
53
Am
111
Mich
18 NW
51
(1884); Mally
(1914);
Co,
568;
Wrapper
v
443
Excelsior
181 Mich
148 NW
Banninga,
547;
(1923);
Steele v
225
Hallo
properly avoided interference in most instances. exception. This case should be an The manner in which evidence presented was a basis was for reversal of verdict plaintiff in Wright, Sima 352; (1934), 268 Mich NW is relevant the case at bar. This was an malpractice. action for medical The Court de- 355: p scribed situation at spite frequent warning "In by the court hazardous, practice plaintiffs counsel tried the case They presented in reverse order. their medical wit- hypothetical questions nesses and plaintiff asked before permitted testified and so only were do on their assurance that the basic facts would be shown later. proof While largely the order of is the discretion court, practice employed in this case not to be prevents opposing commended because it counsel from making specific objections hypothetical questions keeping testimony hinders issue.” court Estate,
In Blickley v Luce's 148 Mich (1907), NW 752 the Court said the order proofs are require introduced does not a rever "except sal where such deprives course the com plaining party of fair trial or occasions a miscar *27 241.) riage (p of justice.” This echoes the rule that any error made in the conduct of a trial must be 2 in prejudicial order to warrant reversal.
The trial
of
judge
the instant
recognized
matter
plaintiffs
hazards
inherent
presentation
in
proof after
a few hypothetical
questions were
asked. The judge said in chambers
that she "may
wrong”
have been
in denying defense counsel’s
request
plaintiff
that
proceed with the facts first
326
VanOordt
[2]
Cochrane,
Murchie v Standard Oil
280;
v Metzler,
295
40
NW2d 150
Mich
375 Mich
386;
(1949).
hypotheticals this and and that the evidence will show this and evidence that.” will show
Much plaintiffs testimony way was no involved in plaintiffs connected to facts acci- It highly dent. remained the record and was prejudicial.
EXPERT WITNESSES
Inseparable plain- the discussion above is expert specific, tiffs use of witnesses. To be defend- repeatedly objected ants of Robert testimony M. Jenkins.
Mr. knowledge Jenkins testified that he had no question, of the construction but referred to a number of companies good reputation in the construction variety field to a meth- safety ods used different groups. The thrust of Mr. testimony working Jenkin’s concerned conditions "on the steel”. None of this rele- testimony developed vant to the later facts. Plaintiff was steel”, "on the gone but had on his (needlessly) own, contrary to approval directions and without knowledge foreman, of his to the roof where he *28 v General Opinion by Dissenting M. S. craft of the roofers. He into lines” "crossed wrong and this was knew admittedly of the trade. custom in this case had testimony presented expert
The instant set of facts. to the Had value probative no first, presented been of the case the facts would have been al- testimony doubtful lowed. time, this addressed Court has
From time to expert witness. A recent of an to the use itself Linehan, in O’Dowd 385 Mich analysis appears (1971). following compari- 189 NW2d p 508: was made at son expert is similar to that of a transla-
"The use of an presented jury which has been tor —the evidence adequately comprehended, analyzed and cannot be special knowledge weighed by it the aid of the without expert meaning significance as to the of the facts evidence.” 509-510) (pp
The Court listed three rules which admissibility expert testimony: govern * * * expert. "1. There must be an require "2. There must be facts evidence which competent subject analysis by to examination and are expert. * * * added.) (Emphasis knowledge particular Finally, "3. there must be in a belongs expert area that more to an than to the com- mon man. This is the most difficult test of all. The depends expert application knowledge upon of it the relation of knowledge given to common at a time.” The verdict for defendant Linehan which was Appeals affirmed Court of was reversed trial ordered Court because "there new this of this nothing exceptional so in the record 392 *29 Coleman, Dissenting Opinion M. S. by J. expert require opinion an on case to the ulti- 513.)3 (p mate for jury.” issue case, In the there were no instant "facts in analyzed by expert. Further, evidence” to be an heard "common man” who the unadorned to tell facts no him expert needed what was com- mon knowledge. proceeding The entire could not confusing have been more if jury plaintiff structuring had set with about case in mind.
By introducing expert testimony first, there against were no facts the judge could mea- sure the for or probative need value the expert testimony. Many hours were to publica- devoted tions, periodicals opinions having to do with in safety the lack of it construction and non- construction work in the United States. Sometimes the testimony dealt safety with measures in used other working states those "on the steel” which plaintiff not doing was at the time of the accident. working He was Making roof. ventilators safe was but subject, another Mr. Funk did not fall through a ventilator. Jenkins,
Mr. admittedly, did not know any Michigan contractors and did not specifically know Darin Armstrong. & He was a retired engineer who said that he had worked for the law firm of plaintiff’s attorney on about five other cases. O’Dowd answers the instant case to questions therefore are: Yes,
1.
there
expert.
was an
2.
were
There
no
facts
evidence which re-
People
Zimmerman,
Also
v
see
385 Mich
3. There no need which be- than to the expert more to an common man. longs Further, expert testimony unless read one is inclined to be practiced eye, swept with a only into an attitude adverse defendants but remotely all those even connected with con- long before the actual facts of struction business are elicited. This bias the industry case in particular permeated defendants rendering impossible proceedings, receive Again, if impartial hearing. and fair the facts *30 first, it presented of the case had been is unlikely much, any, testimony if of Mr. Jenkin’s would have been admitted. above, forth the verdict
On the issues set war- rants reversal.
INHERENTLY DANGEROUS ACTIVITY
Mr. Funk receives his benefits under the Work- through Compensation Agree, men’s Act Ben his question The here is whether he is to employer. award(s) receive an additional from the contractor, Armstrong, Darin & and from the owner, GM.
Although "shotgun” approach has been em- matter, ployed plaintiff this has relied most heavily upon "inherently danger- doctrine of ous activity”.
The applies corporations, doctrine to only but equally applicable is to or any homeowners other citizens who to employ others do work for antenna, installing removing them —be a TV trees or tree stumps repairing plumbing, sidewalk, porch, etc. This comes home to subject everyone. 392 Mich Dissenting Opinion M. S. imprecise doctrine, analyzing historically
In this be answered: questions three must first inherently dangerous 1. What is an activity? 2. doctrine? Who invoke the may 3. Who is decide whether doctrine ap- plies? question
The first is the most difficult. As Pros- ser indicates in his Handbook of the Law of Torts (4th Ed), the been phrase has never well defined. law, In his he analysis of case states: principle seems be limited to work in which "[T]he high degree there is a lar particu- of risk relation to the surroundings, specific or some rather risk or set vicinity, recognizable risks to those in the advance calling precautions. emphasis upon definite risk, 'peculiar’ the special, character of and the need for 473.) (p unusual care.” 2d, In 41 Independent 41, Am Jur Contractors § the doctrine exception is labeled "an to the gen- eral rule an nonliability employer for the tort contractor”, 805.) independent an (p "The theory upon this liability is based is that person a inherently who engages a contractor to do work an dangerous subject character remains absolute, nondelegable duty performed see that it is *31 degree with that appropriate care which is to the circumstances, words, or in other see to that all reason- precautions during able shall performance, be taken its to the end tected persons that third may effectually be pro- against However, injury. liability employer of the in such depends upon cases knowledge his antecedent danger inherent in finding the work or that average, reasonably prudent corporation man or should, in the exercise diligence, of due have known.” 806-807.) (pp It is noted here also that "inherently the term Dissenting Opinion M. S. susceptible accurate defini- "not dangerous” is 807.) 43 states: (p Section tion.” activities, including operations or building "Ordinary demolition, generally are construction and both inherently intrinsically dan- of an work considered employer-owner rendering the liable gerous character negligence indepen- of an resulting injuries for doing the work.” dent contractor Torts 2d also reflects Restatement the diffi- defining inherently dangerous one faces in culty dangerous 416 defines work activity. Section special precautions: absence of independent employs contractor to "One who an do recognize likely as employer should to work which peculiar physical during progress a risk of create its taken, special precautions are harm to others unless is physical harm caused to subject the failure of to take such liability for them the contractor to exercise reasonable care though employer precautions, even has precautions in provided for such the contract or other- negligence danger in- Section 427 defines wise.” herent the work: independent to do employs who "One danger involving special to others which work to know to be inherent employer knows or has reason work, contemplates or or which he in or normal has reason contract, making contemplate when liability physical harm caused to such subject to to take reasonable by the contractor’s failure others precautions danger.” such rules above say Comments that §416 different forms of statement "represent if holding employer rule” liable same dangers he should injuries result "from into the contemplate at the time that he enters if risk is one Liability may attach contract”. *32 91 392 Mich 130 Dissenting Opinion M. S. Coleman, J. recognize employer
"which the should likely to the in course of ordinary arise the usual work, or doing particular the the method employer the knows that method which the con- adopt.” speak tractor Comments will § risks advance” and note "recognizable that the application no where negligence "has the section a of the contractor creates new risk not inherent prescribed itself or in the ordinary work way reasonably it and not to be doing contem- added.) plated by employer. "(Emphasis analyses danger others, These refer third Michigan parties, although employees have involving included in a cases been few the doc- However, trine. case Michigan law does little to meaning dangerous render of inherently activ- Iron Superior Erickson, In Lake Co v ity clear. (1878), Rep 33 Am plaintiff was suing the mine owners for her husband’s death. was employed by husband a firm who had contracted to work the mine. He had been killed by a large rock which from fell the walls of the mine. There was evidence rock had been con- dangerous prior sidered accident. The Court "general said principle of law that responsibility lies somewhere to prevent workmen being exposed without such protection as is required reasonably 500.) dangerous in a (p business.” dispute The basic in the case was place where to that responsibility. The Court noted that the own- mine, planned ers site, selected job deter- mined to sink where the shafts. They reserved the right to determine when and where and how rock was to be removed. The Court said at 502-503: "Under such it is very plain circumstances company being the dangerous owners property, Opinion Dissenting M. S. *33 it, responsibility their for on inviting men to work changed by the that fact the be protection cannot
its by day, by the or the ton instead is the done work fact with them have labor- contract men who that the them in employing men to act for By of their own. ers they that the assurance can they hold out way either ordinary of safety the conditions mine on in the work They guarantee nothing places. in such usually found owners, prudent they among do usual more than is purely accidental. But which is against that not insure they they have not been and represent that tacitly do themselves.” not reckless will be not safe and the owners was There the site itself The Court affirmed a verdict danger. of the knew However, mine owners. for the wife proofs no that the site case there are the instant that even his subcontractor-em- unsafe or defendants, knew of Mr. much less ployer, assigned his location. Cer- Funk’s venture Mr. Funk foresee that would tainly, none could led to engage extraordinary in the activities which and, therefore, dan- guard against such injury his ger. a Millersburg Driving Associ Inglis
Plaintiff (1912) tion, alleged 136 443 Mich NW land caused fire started damages his land. The trial court directed a verdict defendant’s saying for the association it was not liable for the independent of the contractor hired to clear act This land. Court reversed. In the record doing, clearly so Court said showed that the members of the association had was in plaintiff indicated to the association members charge of the work. Plaintiff warned the dangers setting Proper of the involved in the fires. told precautions were not taken. Plaintiff was not independent thus unable contractor and was danger. him of warn Dissenting Opinion by M. S. following quoted being The Court an exception rule that principal to the responsible the tortious acts of indepen- not dent contractor: " itself, dangerous 'Where the work is as often
termed, "inherently” or "intrinsically” dangerous, unless
taken,
precautions
proper
liability
are
be
cannot
evaded
by employment
independent
of an
to do the
way,
injuries
where
work. Stated
another
to third
arise,
persons
expected to
must be
unless means are
consequences
adopted by
prevented,
may
which such
be
doing
see
the contractee is bound to
of that
prevent
necessary
which is
injury
mischief. The
work,
necessary
need
be
result of the
but
probably,
work must be such as will
merely may,
and not which
*34
injury
proper precautions
if
cause
are not
”
319-320.)
(pp
taken.’
The Court said defendant had
"in
duty
doing
involving
work necessarily
danger
to others”
take such steps "against
negligence
as
be
may
321.)
commensurate
danger.” (p
with the obvious
Katz,
(1926)
112;
Olah v
234 Mich
Invocation of the doctrine of inherently
danger-
Utley
v Taylor &
activity
rejected
ous
was
Gaskin,
Inc,
(1943).
561;
305 Mich
independent contractor rule clearly invoked to prevent general contractor escaping liability persons injured third in connection with 'inherently dangerous’ work, by the defense that such work was being done a subcontractor. In plain- such cases the tiffs were therefore, employees provision and, compensation the workmen’s present act under which the involved or construed. Such brought suit was not readily cases are distin- guishable hand, from the at case in which the statute expressly gives plaintiff employer right to en- force, insurer, the benefit of his the claim of his injured employee against defendant.” The Court Appeals has discussed the doctrine. In Vannoy Warren, v City of Mich App (1968), NW2d 486 defendant appealed plaintiff award to for the death of her husband. *35 Death part resulted in presence of meth- ane gas in the construction site. The Court re- jected any distinction between injured persons based on whether they were parties third or em- ployees independent contractor. Such dis- tinctions were said to violate "the absolute charac- ter of the duty” imposed on defendant
by the dangerous nature of the activity. Determination whether an activity was inherently dangerous was Mich 91 392 134 by Dissenting Opinion M. S. jury. for the question a fact Leave to
said to be (1969). 768 382 Mich appeal was denied. no cause of action was affirmed in
A verdict of
Corp, 31
v Motor Wheel
Huntley
App 385;
Mich
(1971). Plaintiff
had been injured
inherently closely activity doctrine is liability. duty akin strict make such negligence provision against may be commensurate dangers only the obvious involved arises where with employer necessarily involving danger done, doing, causing or is to be 'work great to others unless care apply appear is used.’ In order to this doctrine it must that inevitably the work itself was of such a nature that it would unavoidably danger in result to others great prevent injury. unless of this care was used to The facts plain- that case are such cannot be said that that, therefore, injury tiffs was inevitable vicariously proof defendant should be held without culpable negligence part. appear on its It would plaintiff injured instrumentality was fact being performed by indepen- incidental to the work dent contractor.” Co, Argo v Mulcahy Steel Construction
Also see
4
116;
(1966),
App
NW2d
leave to
(1966).
appeal denied
How then are we to define what constitutes inherently dangerous activity? The Michigan cases holding are uniform in that generally an employer is not liable for the torts of an independent con- exception tractor. An has developed been for activ- ities or tasks reasonably which can be foreseen as dangerous parties, third with a few cases ex- tending the exception to employees. These activi- ties include dangerous those despite use of all reasonable care dangerous and those unless rea- 472). sonable (Prosser, care is exercised p It clear this doctrine imposes a form of strict liability upon the owner or employer of the inde- pendent However, contractor. such liability is not absolute.
Without exhausting possibilities, two situa- tions obviously do not imposition warrant of liabil- ity. If perceives defendant the possibility of dan- ger, and takes all steps reasonable prevent injury from occurring, him we should not hold her liable if injury unavoidably occurs. Similarly, the owner or employer of the independent contrac- tor should not be required to possible foresee all activities might dangerous create a situa- tion and lead to injury, such as in the instant case.5 5The protecting Restatement employer includes a section liability in says: certain instances. Section 426 employer independent contractor, of an "[A]n unless he is himself negligent, physical is not by any liable for negligence harm caused
the contractor if "(a) negligence solely contractor’s improper consists in the work, manner in which he does the "(b) it creates a risk of such harm which is not inherent in or work, normal to the Dissenting Opinion M. S. posed beginning at question
The second invoke the was, may doctrine of section "who this *37 activity?” Some say liability inherently dangerous general or the invitees extends to business only are also employees included. public. say Others McDonough. split was also seen This indicated, the doctrine As the earlier discussion dangerous intrinsically activity is inherently of or employer rule that an exception to the independent of an con- not for the torts is liable prevent to designed employer tractor. It was delegating responsibility his or her to elimi- risks. nate or minimize foreseeable the exception I feel the thrust of was to impose employer on the certain circum- duty designed single It to afford a class stances. an additional injured persons theory upon damages. which to seek
In fit Michigan, this Court has not seen to limit nonemployee of the doctrine to third availability parties. asks, question
The final "who is to decide liability imposed whether is to be under the doc- dangerous trine of inherently activity?” Because exception scope doctrine is an to the usual cases, imposed in duty closely such it should be controlled.
First, question duty threshold of what there is under the circumstances of the case is one of Second, law for the judge. question the factual whether there was a breach of if duty, any, such "(c) employer contemplate had no reason to the contractor’s negligence when the contract was made.” urges employer required contemplate Comment b anticipate” that an "is not to or negligence performing a contractor’s work which one expect properly. apply would stances precautions, to be done This does not if the circum- give employer "warning special of some to take reason special or some risk of in the harm others inherent work.” v General Dissenting Opinion by M. S. upon unless there are for the fact finder which reasonable no facts disagree. Third, minds could it is for the fact finder determine also whether the any, proximate duty, if was the cause breach of injury. cause of the question case,
In the instant threshold duty in favor must be resolved of the defendants. impose upon It is unreasonable defendants a duty only employee that not foresee would the independent contrary anof contractor act respects,6 custom his trade in at least two proceed but huge weighing to lift slabs over 200 pounds, turn them back on the roof and then replace all but the last two moved. If Mr. Funk through by removing had not fallen the hole left any slabs, one of the caused he number of other *38 Any hazards which could a have taken toll. re- quired precautions against dangers foreseeable reasonably would not have included the hazard by made Mr. Funk himself. any jury event,
In the instruction to the as to legal inherently intrinsically definition of or dangerous in work was error. The resolution of necessary finding this issue is to the in this normally and, therefore, case would not be dis- proffered However, cussed. use of this doctrine gained popularity has such im- is deemed portant guidelines profession. to set some for the quoted
In the instant case the trial court Digest Encyclopedic Dictionary. Reader’s Great permitted jury This too much latitude. The usage definitions were those common and were legal complex not sufficient as definitions of so a expect doctrine. We the courts to instruct Having by 6 1. been told his foreman to in work under the roof a manner, approval certain he went onto roof without or even knowledge of his foreman. 2. He responsibility. "crossed over” into roofer’s area of Mich Dissenting Opinion M. S. principles rules and of law fully as juries analyzing in the evidence. are to be followed which deficient, then are the fact If the instructions suspect. are finder’s conclusions the jury instructions in It is to be critical easy cases, but not so easy this case and similar However, instruction. fol- propose "boilerplate” elements of the lowing are some of the doctrine of intrinsically dangerous activity: inherently or independent 1. It is done work degree of risk in relation to involving high involving specific or some specific surroundings risks to those peculiar vicinity risk or set of special, unusual care. requires probably 2. It is work which would result injury. danger recognizable
3. There is a risk or (foreseeable) requiring special precau- advance tions. special precautions
4. Such are not taken. duty proximate 5. This breach of is the cause or of the injury. cause case, fail,
In plaintiffs this claim must insofar as predicated it is on the inherently doctrine of dan- gerous activity. impose I would not absolute liabil- ity on defendants. limit There must be a to their responsibility under this A theory. line must be drawn and I would do so here. rule,
As an exception to a the doctrine must have some limits the exception will be- *39 come the general rule. This would property make owners, individual, corporate and general and ab- solute upon prop- insurers all who come their erty.
Defendants should not required anticipate be the unusual plaintiff manner undertook complete his task. held Defendants must not be liable every for on-site accident. Plaintiff left v General Dissenting Opinion M. S. by steel work and to the roof. He did went not seek help task it from those whose was to work with defendants, the roof slabs. notice Without or even employer, plaintiff to his own created an injury unusual risk and then suffered it. The danger plain- was not inherent but was created by tiff. not be held Defendants should to answer for such conduct. summation,
In I would hold: 1. plain- Defendants were denied a fair trial by tiffs failure to prior establish basic facts introducing expert nonexpert certain and testi- mony by the failure to link such testimony pertinent with the facts.
2. Defendants denied a fair plain- were trial by tiffs introduction of unnecessary "expert” testi- mony. testimony Such had probative no value and prejudicial much effect.
3. Defendants may be held liable under a theory dangerous of inherently Defend- activity. ants could not foresee nor they could have been reasonably expected to foresee the manner which the accident occurred. Defendants have no duty breached under this theory.
We cannot the judgment know whether based upon negligence of the general owner, and/or a retention of control over premises otherwise, or upon contract theory inherently dangerous activity. Because at least inherently instruction as to dangerous activity was I inadequate, would reverse the trial court and remand for a new trial consistent with findings.7 these practical application opinion Levin, Justice revers The reinstating ing remanding for a new trial as to GM and against Armstrong, verdict as the Darin & the latter liable to leave $150,000. jointly the two entered entire verdict was Damages determined and the been amount is not have at defendants. profit financially by continuing his suit cannot
issue. Mr. Funk *40 392 Mich Opinion by Dissenting M. S. J.,
J. W. Fitzgerald, did not sit in this case. (if against may reasonably further present applicable), GM the state of law remains so he accept expected expend be his full award and not effort, pursue money question liability time and action, any, redemptive Armstrong may pursue if GM. What Darin & against GM remains to be determined.