Hardy v. Monsanto Enviro-Chem Systems, Inc

Hardy v Monsanto 1982] SYSTEMS, HARDY v MONSANTO ENVIRO-CHEM INC 6). 4, (Calendar Argued Docket No. 63385. March No. Decided 23, August 1982. Hardy, Hardy, Ruth administratrix of the estate of G. Robert deceased, brought against an action Monsanto Enviro-Chem Inc., Systems, Company, Leonard Construction and J & L Roofing Company wrongful Hardy for the death G. of Robert as injuries employment a result suffered in course of his on project. a construction Monsanto had entered into a contract to facility, delegated construct wastewater treatment re- sponsibility subsidiary, for the actual construction to its Leo- Leonard, turn, nard. into entered a subcontract with J & L roofing engaged Company, work. J & L the J. Klanderman Hardy’s employer, Robert do the sheet-metal work on the project. through Mr. was killed a fall an uncovered site, opening ain roof at the construction feet above the ground. plaintiff alleged that the defendants had a implement protect reasonable measures to the workers [6-12] ^{[5] [16] [15] [14] [4]} [1-3, 6-8, ^{[9] [18] [17] [11] [13] [10]} Modern 41 Am Jur 57 Am Jur 53 Am Jur Master and 57 Am 57 Am Jur 57 Am Jur Am 57 Am Jur applicability 57 Am Jur 57 Am Jur 13 Am Jur 58 Am Jur 57 Am Jur §§ 41 Am Jur 57 Am 1, 29. Jur 2d Jur development Am Jur 2d, 2d, Negligence 2d, Indemnity 2d, Negligence 2d, Negligence 2d, 2d, 2d, Building 2d, Negligence 2d, Negligence 2d, Negligence New 2d, 2d, Indemnity References 2d, Negligence Jur Negligence Negligence New Trial 148 et Topic Service, Comparative 2d New 5.§ and Construction Headnotes for Points in comparative § Servant §§ §§ §§ § §§ 125. Topic §§ §§ §§ § actions 101-107,245, 246, 13, 115, 123. 50.§ 15-18. 288, 247, 101-107. 249. Service, 120, § 303. 248. seq. generally. 230. 121. negligence Comparative Negligence Contracts Negligence 78 ALR3d 339. 259. doctrine § 141. 56.§ having 414 Mich 29 duty. Leonard filed a site and breached at the construction L, seeking indemnity. against J & cross-claim Court, Letts, J., During T. Circuit John trial in the Kent contribu- permitted the defense of the to raise defendants were charged tory The court later of the decedent. guilty "ordinary” finding jury was of that the decedent that a recovery, operate complete negligence and as a bar would jury by the decedent of that a violation further instructed through "ordinary” negligence, safety if found his the labor act contributory injuries, proximate constituted cause of his to be a negligence a matter of law. as on Leonard’s cross-claim for a directed verdict J & L’s motion indemnity denied. trial, Following a verdict in favor of all returned defendants, indicating polled jurors when five of the six that, negli- they defendants had been concluded while the had negligent. gent, The Court of the decedent also had been (T. Burns, J., Walsh, Gillis, P.J., Appeals, J. H. J. M. D. F. and per opinion unpublished dissenting), curiam affirmed in an 77-726). (Docket plaintiff appeals; cross-appeals. L J & No. joined by opinion by Ryan, Chief Justicе Cole- In an Justice Fitzgerald, Supreme Kavanagh and Court man and Justices held: contributory negligence as a total bar to The defense negligence recovery in a action such as this for is not available provide adequate safety job, but the devices on failure to available, comparative negligence assuming defense of negligence any plaintiffs exists. The defense of evidence of the negligence negligence comparative not involv- is not limited to devices”, ing applies workplace negligence. "safety to all but act the decedent constitutes a Violation of the labor prima negligence, than as a facie case of rather right may attempt a to indem- matter of law. Leonard to show theory nification under Illinois law on a of breach of contract. comparative negligence to under- 1. The defense of serves not mine, workplace. goal safety in the A but to enhance the escape entirely liability thus a contractor can never avoid provides duty rule of care where the defense can be raised. This duty strong no to breach the financial incentive for contractor rather, safety precautions; it rewards to undertake reasonable safety-conscious provide some finan- contractors. The rule does prudent cial incentive to the worker to act in a reasonable safety- may he be held answerable for his manner because related behavior. Comparative negligence as a defense 2. should not be barred Hardy v Monsanto involving missing safety a case device which a worker has wilfully fully removed. Where the worker is aware of a device, missing safety he should be held answerable for his negligent To behavior. the extent that worker’s behavior reasonably prudent conforms that of worker under all the circumstances, may any "ordinary a trier of fact consider negligence. However, and find him free from inadvertence” "ordinary euphemism is a extent inadvertence” mere negligence, recovery. it for the worker’s should reduce his Application comparative negligence of the rule of to all in- workplace negligence, only stances and not to cases not devices, involving safety policies satisfies the announced Supreme encourages Court and safer behavior contractors unitary approach and workers. A which under the worker and charged reasonably contractor are with the to act preferable. under all the circumstances is retrial, Upon 3. the issue should not be limited to the amount damages. jurors While five of the six found the defendants to negligent, specified it was not whether the in- provide adequate safety volved failure devices or some negligent pre- other act or omission. Sufficient evidence was justify sented to an instruction under the labor act in effect at the time of the worker’s death. The trial court should jury instruct the a violation of the statute constitutes a prima negligence, negligence of facie case than rather as a addition, matter law. In the Court does not define the word "wilfully” now-repealed statute, in as used the but leaves it to the trial court to decide the in first instance which of the parties’ proposed presents accurately instructions the law on point. this agreed Moody’s reasoning 4. The Court with Justice Company’s result on the issue of Leonard Construction claim indemnification, and the is case remanded for trial on that claim also. Moody, Levin, joined by Justice Justices Williams and would comparative negligence

hold the defense of is not available in this case. instructing 1. jury finding The trial court erred in a the "ordinary” contributory negligence part the the on dece- moving skylight dent in a hole cover had which been intended safety operate complete recovery as a device would as a to bar plaintiff. by presented, jury reasonably On the facts supply could have concluded that to defendants’ failure 414 the decedent’s safety cause fact of adequate was the devices injuries. contractor, duty Leonard, general had a to take reason- 2. as supervisory authority steps to alleviate the able within its openings. Sufficient danger posed the roof to workmen that, support as a presented the conclusion to was evidence discharge duty. law, its Whether Leonard did matter of adequate safety by providing devices reasonably acted Leonard by requiring safety programs J & adequate or implementing or question of fact. do so is a L to Leonard, L, pursuant of its contract to the terms 3. J & prevent adequate duty provide devices to to assumed site, may project be held to injury at the to workmen obliga- perform contractual its own failure to answer for its inadequate safety allegedly L control over tions. J & shared unqualified right Leonard, to not have an and did devices with discharge duty of care in maintain- rely J & L’s Leonard to on evidence ing work area. Sufficient in the common the devices its presented that J & L breached to conclude for the was safety program implement to resecure duty to a to the decedent roofing. during the removed covers negligence comparative should not be 4. The doctrine of injured recovery because of a applied of a worker to reduce the adequate safety provide a contractor of breach safety programs except adequate implement or to devices altered, unreasonably evidence that the worker where there is adequate safety dismantled, use an otherwise or failed to partial recovery negligence Comparative as a bar device. injury negligence to his plaintiff fault contributed whose upon complete previously replaced resulted bar which contributory negligence. obli- finding a contractor is Where guard against adequate safety gated provide devices so, negligence the worker’s and fails to do worker’s injury been had the devices would not have resulted which provided legally the worker’s The defense of irrelevant. policy prior rejected to the matter of as a adoption adoption comparative negligence doctrine. The of the previously liability where none did not create of that doctrine intent of Application subvert the of the doctrine would existed. Legislature enacting under- statute and would fostering safety. goal worker cut instructing jury relative to the 5. The trial court erred purpose- safety proscribing provision a worker’s of the labor act safety safety he realized was a of a device which ful removal Hardy v Monsanto work device from a common area without a reasonable excuse. jury While the court had the discretion to instruct the on the statute, provisions charge jury regarding of the its to distinguish forth standard of care set in the statute failed to purposeful proscribed by between the conduct the statute and ordinary purposeful inadvertence. Conduct is if not it is acci- dental, purposeful and intentional conduct is not if a reason- able worker would not have known both a device is a injury may risk device and that death result from erroneously its removal or alteratiоn. The court further in- statute, jury that a if structed the violation of the found to proximate injury, have been a cause of the decedent’s consti- negligence contributory tuted as a matter of law. The statute prevention workplace. was accident in the intended to foster statute, only purposeful Under the violation of the statute alleged a contractor defense to could be raised as a valid an devices, adequate safety duty supply breach to if of the and proximate that the violation was cause of the concluded negligence compared injury, the worker’s could be with the contractor’s. agreement provides 6. The between Leonard and J & L its terms would construed under be the law Illinois. Leonard applicable express concedes that under Illinois law an indem-

nity relating negligence clause to an indemnitee’s own is unen- forceable, and is considered to have waived its claim under that indemnity clause. Nor is Leonard entitled to common-law from indemnity J wrongdo- & L. Common-law is available where a passive; however, presented, er’s is on the facts negligent only Leonard could be found aas result of á breach of duty provide adequate safety its programs, devices Finally, such would be active. Leonard claims in- demnity theory on the that J & L breached its contractual comply laws and codes. Leonard did not show ground recognized indemnity such a under Illinois law, retried, may present but since case must be Leonard authority support further theory. evidence and this damages. 7. Retrial should not be limited to the issue of liability clearly issue of determined in the trial court. plaintiff prevail, may Should the Leonard able to demon- right indemnity strate its from J & L based on J & L’s breach of contract. Reversed and remanded for a new trial. Opinion of Court — Negligence Safety — — Com-

1. General Contractors Devices parative Negligence. comparative negligence available to a contractor The of defense provide involving negligence an in the failure to in a case workplace any adequate safety evidence of in where device negligence a exists. worker’s — Safety — Negligence — Com- Contractors 2. Devices General parative Negligence. applies comparative negligence to all instances doctrine of The involving only workplace negligence, not to cases not safety devices. Negligence. Safety Comparative Negligenсe — — Devices 3. comparative negligence in a case is not barred defense involving missing safety has device which a worker missing removed; fully wilfully aware of the worker is where negligent device, for his he should be held answerable behavior. Negligence Ordinary — Negligence Comparative — Inadver- 4. tence. may injured worker to be free from The trier fact find an though "ordinary negligence inad- his behavior involved even reasonably to that of a where the behavior conforms vertence” however, circumstances; prudent to the all the worker under euphemism "ordinary is a mere for extent that inadvertence” recovery. negligence, reduce it should his the worker’s Safety Negligence — — Devices Statutes. 5. proscribed provision act which Violation of the of the labor workplace by safety device in a the wilful removal of a prima rather than worker constitutes a facie case (MCL 408.853; MSA 17.49[3], as a matter of law repealed, 1974 PA 154). since Dissenting Moody, Jr., J. Part Safety — Negligence — — Sub- 6. General Contractors Devices contractors. steps building duty general take reasonable A contractor has a to readily guard against supervisory authority ob- within his servable, dangers which cre- work areas avoidable common workers, high degree significant number of of risk to a ate a implement- adequate safety equipment including providing or requiring ing adequate safety programs or subcontractors programs. provide equipment implement such such Hardy v Monsanto Negligence Safety— — — 7. Devices General Contractors Sub- contractors. general building A is not contractor relieved from his provide adequate safety equipment supervisory within his coordinating authority by any conspicuous the absence of fail- supply safety equipment ure a subcontractor his employees; only an such absence is a factor to be considered determining general a trier of fact whether the contractor complied reasonably duty. with his Negligence Safety— — — 8. Devices General Contractors Sub- contractors. provision requiring approval A in a subcontract written of general prior subletting contractor to a work subcontractor’s general duty will not guard relieve contractor his from to against dangers posing high degree significant a to of risk occupied number by employ- of workers in work common areas approved ees of a subcontractor whom he has not where the general prior contractor aware of the subcontractor to com- any mencement employees of work the subcontractor and of another, approved, occupy subcontractor the same area. Negligence Safety— — — 9. Devices General Contractors Sub- Assumption Duty. — contractors of duty

A subcontractor who assumes a under his contract with the general guard against dangers contractor to in common work posing high degree significant areas risk of to a number of perform obligation workers ordinary must his contractual care, perform may support and failure so to a cause of action against general the subcontractor as well as the contractor injuries resulting inadequate to safety precau- workers from tions. Negligence Safety— — — 10. Devices General Contractors

Subcontractors. unqualified right A rely subcontractor does not have an to on general discharge efforts of the contractor of the subcon- contractually duty adequate tractor’s assumed to maintain safety equipment in common work areas. Negligence Safety— — — 11. Devices General Contractors Contributory Negligence. (cid:127)

Contributory negligence is no defense to failure a contractor to provide adequate safety equipment work common areas causally injury. where the failure is to a connected worker’s 414 — Safety — Negligence — Contractors General Devices 12. Negligence. Comparative applied negligence may comparative not be of The doctrine guard against involving of a contractor’s breach claims observable, dangers areas in common work readily avoidable signiñcant degree number of high risk to a which create a injured recovery by partial an or a bar workers as a total unrea- except the worker there is evidence that where worker dismantled, altered, use an otherwise sonably or failed to device; ability the risk safety a worker to avoid adequate safety inadequate inferior posed by devices is or of harm absent substantially contractor’s, application would such to the fostering safety by goal encour- primary worker undercut safety necessary aging provision devices. — — Negligence — Common Law of Care Statutes Standard 13. — Discretion. apply ultimate discretion whether retains A trial court statutory action in lieu оf a common- of care in a civil standard legislation language speciñc creat- in the absent law standard apply, determining liability; standard to ing which civil applica- whether to ascertain look to the statute court should legisla- statutory would further the standard of care tion of the intent. tive Safety — — Negligence — of Care Stat- Devices Standard 14. Negligence. Ordinary —utes proscribed provision wilful act which of the labor workplace by in a a worker of a device removal workplace fostering prevention in the at accident aimed. creating liability in the worker for inadvertence not at civil object not which the worker did intentional removal of an for (MCL 408.853; 17.49[3], MSA since device know was a 154). repealed, PA Compar- Jury — Negligence Safety— — Instructions 15. Devices Negligence — Standard of Care. ative resulting court, damages for A in an action a worker trial injuries of a device because of the absence from received may workplace, inadequate safety instruct in the or an device statutory jury ñnding a the worker violated that a that the violation of care without excuse and standard prima injuries facie case of proximate cause of his constitutes evidence, supported is where the instruction occurred, designed prevent which the harm the statute is which the worker conduct in the standard of care involves Hardy v Monsanto Enviro-Chem Opinion of the Court unreasonably altered, dismantled, or failed to use an otherwise device, and, adequate safety if the concludes that responsible misconduct, is negli- worker for such causal his gence may compared assessing be with that of the defendant in damages. — Indemnity. — 16. Conflict of Laws Construction Contracts provides A clause in a construction contract which that the terms agreement of the will be construed in accordance with the laws foreign against of a state will be enforced absent drafter showing enforced, may that the clause not be and where the foreign precludes express law state enforcement of indemnity provisions relating in construction contracts to the negligence of an indemnitee that law will control and render indemnity provision unenforceable. Indemnity — Indemnity — Negligence. 17. Common-Law may indemnity party Common-law be available to a liable to an injured party liability where the arises reason of his relation wrongdoer imposed by operation to another or is of law in the personal absence fault or causal or where the wrongdoer seeking indemnity guilty merely passive negli- gence. Damages. — 18. New Trial

Generally, a remand for a new trial limited to the determination damages will ordered absent clear indication of liability. Murray Terry & Mroz (by J. Mroz and James R. Hulbert) for plaintiff. Upham, Bryant Wheeler, & Uhl Buford A. (by Flakne) Upham and Susan B. for defendants Mon- santo Enviro-Chem and Leonard Construction Co. Rhoades, McKee & Boer Michael Betz W. (by Liu) and Ben T. L defendant J & Co. Roofing

Ryan, J. In this case required we are deter- mine the effect of the of comparative doctrine Funk v General negligence1 on our decisions 1Adopted Sterling Heights, 638; in Placek v 275 NW2d (1979). 29 414 Mich 38 Court of the (1974), 220 641 Corp, 91; NW2d Motors of Avis Rees Division v Tulkku Mackworth Inc, 615; Industries, 281 NW2d 406 Mich negli- (1979).2 of comparative defense Since the enhance to undermine but not gence serves that are of the view workplace, we safety in the in as a defense is available comparative negligence Funk and Tulkku formerly where those cases neg- contributory the prohibited application in negligence We conclude ligence defense. "adequate safety device” provide an the failure to to the com- workplace subject is therefore in the defense, assuming any negligence parative exists. plaintiff’s of the evidence reversed and favor of the defendants verdict the princi- remanded retrial under the cause Sterling Placek v comparative negligence. ples of (1979). 638; 275 NW2d 511 Heights, I in full and case are set The facts this forth opinion, Moody’s detail in Justice accurate The plaintiff-appellant is invited. which reference in- have been argues should was a de- that contributory structed construction fense to the claim that the defendant installed or maintained negligently contractors of construction protection devices for workers at work site. opin limits of this Court’s

Although precise Funk, unclear,3 supra, ion in are we concur Tulkku, question expressly 623. This reserved Court extreme, At read to abolish Funk and Tulkku could be personal contributory negligence all where defense of injury actions negli negligence. potential All results from the defendant’s imposed duty gence legislatively defendants have a common-law or any negligence precautions for of others. If take reasonable Hardy v Monsanto Opinion of the Court Moody the result reached Justice in parts I-III Funk, opinion. of his Under the defensе of contrib utory negligence is unavailable when a construc tion alleges negligence worker in the failure to provide adequate safety devices on the job. sufficient, plaintiff presented in this case albeit weak, upon evidence which the jury might have concluded that plywood covering the sheets the openings in the roof were devices” "safety which were negligently installed or maintained. Absent a doctrine, of the Funk plaintiff reconsideration the would be entitled a new trial on the negligence claim, of without the defense contributory negli 4 gence.

However, the defense of contributory negligence as a total bar would be recovery unavailable Placek, upon retrial in event in supra. any light of the Funk policy We must therefore decide whether in promoting workplace the would be undermined enhanced application of the principles of comparative negligence.

II Funk, In this Court found the total bar of con- tributory negligence to be inconsistent with the public policy promoting in the workplace. The Court refused to general allow a contractor . and a landowner liability "avoid” "by pointing to the concurrent negligence of injured worker pointing defendant "could avoid this to the concurrent * * * [plaintiff] purpose the beneficial of the statute might Funk, common [or well be frustrated and nullified”. 113- law] 114, quoting Koenig 313, Corp, v Patrick Construction 298 NY 318- (1948). 319; 83 NE2d 133 plaintiffs "grossly negligent”, If the decedent had been a defense Funk, 18, 113, citing would be Redding available. See fn Bowman v & Co, (1971). App 294; 145 US DC 449 F2d 956 Opinion of the Court equipment”. Funk, 113-114, using [unsafe] Corp, Koenig quoting Patrick Construction v (1948). Funk, 318-319; 83 Before 313, NE2d NY liability by entirely avoid could contractor the convincing plaintiff that the finder of fact negligent. Apparently it was feared even 1% temptation might succumb to contractors some employing instead of defense counsel skilled of adequate safety the Court noted

devices. As Tulkku, 622: pro- case to invoke defendants this "To allow contributory doctrine would be tection of subverting very safety concerns that

tantamount the paramount Funk courts extolled as Koenig and position might a manufac- a allow importance. Such * * duty due care *: escape to its of turer " to that defendant has a be hold 'It would anomalous duty of a breach to devices but duty install duty the very injury the liability in no for results ” Bexiga against.’ Quoting v Havir protect to meant (1972). 402, (Empha- 412; 290 A2d 281 Mfg Corp, 60 NJ added.) sis comparative contrast, the defense of In stark entirely negligence a to never allows contractor "escape” duty liability the of due "avoid” and thus pay Placek, the the must care. Under defendant damages negli- percentage of caused his full partial gence. "anoma- do this defense We not find contrary, quite brother; it the lous” as does our liable would for "anomalous” to hold defendant be causally damages amount in excess the negli- negligence.5 comparative related to his The arbitrary penalty Admittedly, prospect paying the an additional damages negli beyond proximately caused one’s own above and gence might provide prevent to accidents. But an increased incentive proposed penalty proportion to the defendant’s the culpability, penalty is in inverse negligent pays a hundredfold since the defendant 1% penalty negligent pays at no all. while the defendant 100% v Monsanto Court strong financial provide does not defense gence to breach contractors for incentive safety precautions. reasonable undertake recovery that a worker’s asserts colleague Our comparative his own reduced not be should dangerous condi- works under when he of the the current state tions, "considering since to conclude that be unrealistic it "would economy” Unfortu- a choice not work”. have workers with the ultima- are faced some workers nately, steel, up go to work don’t want tum you "[i]f worker, Funk, acting reasonably If a 113. home”. circumstances, would continue all under conditions, then dangerous under work the worker’s could not conclude trier of fact reduced, the worker by since recovery should hand, other at On the negligent. was not definition charged with some must be a worker point some behavior. safety-related his own responsibility extremely work under continues If a worker worker under when a reasonable unsafe conditions would "take circumstances all facts and reduce walk”, might appropriately of fact the trier negli- comparative under plaintiffs recovery goal enhances gence. Comparative conditions, under these workplace in the incentive some financial gives since it the worker fashion. prudent to act a reasonable also enhances negligence rule comparative rewarding safety-con- workplace in the some contractors Undoubtedly, scious contractors. fear of to work without allow workers to refuse negligent plaintiff, greater Conversely, his windfall more attempt impose recovery. administrative The Court should not administering guise penalties tort violations under Legislature already enacted such an administrative remedies. The scheme of has et inspections See MCL 408.1001 and fines under MIOSHA. 17.50(1) seq.; seq. MSA et 414 Mich 29 Opinion op the Court reprisal dangerous reported until conditions are colleague’s approach and corrected.6 Yet our such a "safe” treats company identically with an "un- prevents company company safe” the safe reducing damages despite plaintiff’s from flagrant its company safety policy.

violation of presumption irrebuttable that all contractors force might workers to work under hazardous conditions grim self-fulfilling prophecy well become a if we encourage safety-conscious refuse to contractors comparative negligence. under the doctrine of response appropriate Much the same to the comment that workers often become conditioned to working dangers prudently: and deal with them continuing to work under those conditions would part not constitute on the of the Further, worker. the contractor-defendant has lit- prove tle incentive to the conditions were so dangerous plaintiff that the should have refused to approach work, probably since such an will in- crease rather than decrease the defendant’s liabil- ity comparative negligence. under This is in con- contributory negligence trast to the rule, which encouraged strategy. such a defense many Tulkku,

In rely we noted that workers on appears adequate effectiveness of what to be safety equipment. case, In the worker relied upon four-palm-button proved switch that to be proof defective. Such reliance, reasonable absent reasonably prudent press rely workers do not negligence; on device, is not thus, evidence of contributory negligence no instruction should have given been pre- in Tulkku because the defendant plaintiff’s negligence. sented no evidence of the The Tulkku result would therefore remain the policy might Such salutary adopted unilaterally, or under the collective-bargaining agreement. terms of a v Monsanto Opinion of the Court adoption comparative negli- same even after the gence, since the worker "cannot and should not be required temper his or her behavior because of [worker] a defect about which the has no aware- Suppose, Tulkku, however, 622. that ness”. press cycled only in Tulkku after three buttons pushed, injured. no one was A were but worker receiving continuing inju- to use the machine and ries the second time switch fails should be negligent for his or her behavior be- answerable cause the worker is fully aware the defect. Yet opinion exactly oppo- our would hold brother’s comparative negligence site; the defense of would be unavailable situation because the "wilfully” worker has not de- removed a vice. colleague argues

Next, our that a worker’s re- covery should not be reduced because his or her "ordinary inadvertence”. To the extent plaintiff’s behavior conforms to that of a reason- ably prudent worker under all the circumstances (even prudent reasonably plaintiff workers act as job pressures, monotony, did because of and atten- work), tion to details of their the trier of fact is plaintiff negligence. free to find the free from To "ordinary extent, however, inadvertence” merely euphemism negligence, is for a worker’s recovery. today, it should reduce a worker’s Until the notion that "mere inadvertence” should ab- persons solve from the effects of their wholly foreign jurisprudence.7 has been to our We logical why see no reason it should immunize this operator The automobile who crosses the center line and crashes head-on into another vehicle cannot claim vertence” due to "the aas defense "mere inad monotony surgeon of the task”. The who operates pressures”. wrong leg may "inadvertently” "job on the do so due to pedestrian against light who crosses the traffic negligent "inadvertently” thinking even if he did so while about the details of his work back at the office. 414 Mich 29 Opinion of the Court

particular plaintiffs class of from the defense of comparative negligence appears if, even as to be observing genesis case, we are of a new jurisprudence "safety to be called device” law. argued

Finally, it is that "in most instances” the negligence worker’s fendant’s occur will later than the de

negligence, making it "difficult” for the jury accurately percentage arrive at the correct empirical supports First, relative fault. no data speculation workplace that in "most” accidents negligence happens the wоrker’s last and under standably authority Intuitively, no is cited for it. it cases, would seem that in "most” inas Funk and provide Tulkku, the contractor’s failure to an ade quate safety probably continuing device is omis employee’s sion which is concurrent with the con produces injury. Secondly, duct that our broth opinion comparative negligence er’s would abolish negli even in those cases where the contractor’s gence negligence is "last” and the worker’s is the .8Thirdly, juries more distant in time the idea that competent are not to make difficult allocations of proportional simply comparative negligence fault under is Finally,

erroneous.9 on the basis of the speculation jury wrong will reach the colleague’s approach guar fault, allocation of our recovery proportion antees that will not inbe 8 Suppose plaintiff negligently in this case removed the nails opening and the cover from the Monday. negli on The contractor gently failed to Tuesday, reinstall Wednesday cover on Thursday. through Friday, through own, On plaintiff no fault of his falls the hole. failing The contractor’s in to correct the safety problem would be injury closer in time to the than the plaintiffs negligence removing in the cover. 9 As Justice separate opinion Williams Kirby wrote in his v Larson, 585, 646; (1977), argue 256 NW2d 400 "Those who comparative negligence confusing is both and difficult to adminis ter both underestimate the modern and misread the facts.” Kavanagh joined Justices Levin and Kirby; Justice Williams in entire Court position vindicated Justice adopting Williams’ com parative negligence Placek, supra. Monsanto v Opinion of the Court negligent at all he fault, if the defendant since damages. Truly plaintiffs pays this is 100% being illness. As worse than the the cure case of acknowledged in Placek:10 this Court " is hold a pure comparative does 'What her acts and to the fully responsible for his or person ” injury. justice.’ That is they full to which cause extent 405 Mich 661. colleague’s approach today would hold these

Our responsible for their acts above and defendants they injury. beyond cause the extent to which injustice. That is

Ill agree analysis and conclusion We also Moody’s opinion part which ‍​‌​​‌‌​‌​‌​​​‌​‌​‌​‌​​​​​‌‌‌‌​​​​​​‌​‌​‌​​‌‌​​​‌‍VII of Justice rejects plaintiff’s lim- claim that retrial should be damages. poll of the ited to the issue of While jurors revealed that five of the six found all negligent, defendants to have been we do not know negligence whether defendants’ was the failure to provide adequate "safety devices” or some other negligent alleged act or omission such as the fail- supervise "adequately ure to and coordinate the activities of workmen on the roof’. Since the supervise neg- adequately "ordinary failure to was ligence” negligence”, "safety and not device under negligence analysis contributory our brother’s proper instruction would have been as to this similarly, comparative negligence claim; retrial, on will be available as a defense to this claim. Co, Inc, 397, See also United States v 421 US Reliable Transfer 406; negligence negligent 1708; (1975), adopting comparative S Ct L Ed 2d 251 of primarily admiralty: in the law "That a vessel justify shouldering responsibility”. does not its all 414 Mich 29 Opinion op the Court

However, noted, as we do not limit the defense comparative negligence negligence of not involv- ing "safety ambiguous devices”. While that and again abstruse term in was utilized Funk and in nothing opinion suggests Tulkku, in either a com- pelling why apparently subspecies reason this new differently should be treated than any type negligence. Indeed, other Funk, give Court noted that the defendants failed to plaintiff "safety yet indoctrination”; that omis- hardly category sion can be forced into the failing provide "safety misguided device”. The emphasis magic "safety on the words device” has already begun confusing, absurd, to lead to non-safety therefore unfair results. As to device negligence, appears ordinary negligence it comparative negligence principles apply. will negligence, ordinary negligence As to device evidently applies liability, special as to but a com- parative negligence required instruction is under my analysis plaintiff "wilfully” brother’s if the removed a device.11 perpetuated by approach The confusion this unnecessary. By case is both unsound and reinventing comparative wheel death, At 408.853; 17.49(3), the time of decedent’s MCL MSA provided as follows: employee remove, wilfully 11 No displace, damage, shall destroy or carry any safety safeguard off device provided or furnished or for use any employment place employment, any way or interfere in by any person.” with the use thereof other subsequently The statute was "wilfully” amended and the word 17.50(12): 408.1012; deleted. MCL MSA employee "An shall: "(a) Comply promulgated, with rules and standards and with orders pursuant issued to this act. "(b) remove, displace, damage, Not destroy, carry safeguard off a provided place furnished or in employment, for use in a of or interfere any way by any person.” 154, with the use thereof othеr 1974 PA 1, January effective 1975. v Monsanto Opinion of the Court language, with "wilful of a removal device” colleague system, our general negligence would create a two-tier tort "safety negli-

versus device” gence, each its of with own set instructions. As application comparative above, discussed workplace negligence to all satisfies the policies encourages Funk as as well safer behavior prefer both contractors and workers. We unitary approach negligence12 under which both plaintiff charged the duty and defendant are reasonably

to act all under the circum- stances.

IV likely upon retrial, Since the issue arise we appropriate also must consider the instructions 17.49(3), repealed. 408.853; MCL under MSA since agree presented We that sufficient evidence was justify an instruction under the statute. alsoWe agree that Anderson, 117, under Zeni v (1976), 143; 243 NW2d 270 trial court should instruct that violation of the statute constitutes a prima negligence, negli- facie case of rather than gence a as matter law. disagree necessity

We with the wisdom or Leasing, Leasing was unavailable under those facts but Suter v San gence products proposition cable. that no imposing (1979), products liability. We decline to is a defense in some strict Zerby Warren, awas comparative negligence & Inc, liability strict Rental cases. The cases cited in our brother’s Angelo v 53 NJ strict liability comparative negligence Service, statute, liability Foundry 463; speculate This 297 Minn 251 A2d 278 45 NJ MCL cáse, case selling & about defense Machine 600.2945; liability 434; holding as well 134, model 212 A2d 769 (1969); noting 141; was available under should not cases. See Ettin v Ava Truck Co, MSA as effect of airplane 210 NW2d 58 Cintrone v Tulkku comparative negligence 27A.2945, NJ (1965). comparative negli- apply 150; glue Placek opinion 406 A2d 140 Hertz are (1973), on the law Funk, inappli- for the statute minor; Truck held are 414 Mich 29 Moody, Jr., J. Blair remove, colleague’s our adopting, appellate at this definition, "wilfully” of the word definition, or any Neither since-repealed statute. used in the as in the instruction requested a definitional party failure judge’s to the objected trial court or the trial sponte. sua leave it to We define the term instance which of in the first court to decide accurately repre- instructions parties’ proposed point. sents the law on this

V Roofing L cross- Company’s As to defendant J & in court erred its denying the trial appeal verdict, agree fully directed we with motions Moody reasoning part of Justice in the result and The case therefore remanded opinion. VI of his on defendant Leonard Construction Com- for trial claim for indemnification. pany’s Appeals the Court of is reversed. The decision of Kavanagh Coleman, C.J., Fitzgerald, JJ., concurred with Ryan, J. in (dissenting part). J. In Moody, Jr.,

Blair in granting appeal leave to this construction-site case, parties accident the Court directed the among questions include to be addressed: contributory negli- What is the status of the gence in safety equipment light defense cases Funk v General Motors Corp, 91; (1974)? NW2d

Whether the trial court denying erred subcontractor’s motion for directed verdict on the general contractor’s cross-claim for indemnity. (1979). Mich 880

We hold that it was to instruct the jury error "ordinary” contributory v Monsanto Opinion by Moody, Jr., operate decedent plaintiffs would as bar could have recovery reasonably since supply concluded that defendants’ failure to ade- devices the cause in fact of quate safety that, except specific We further hold under injury. infra, circumstances delineated the contributory plaintiffs may decedent com- pared of defendants order to diminish plaintiffs we recovery. Finally, conclude that un- der the of this the general facts case contractor right has failed to establish its indemnification from the codefendant subcontractor.

Facts To evaluate all fully presented, issues it is to review in necessary detail the facts adduced the record. Kent County contracted with defen- (Mon- dant Monsanto Enviro-Chem Inc. Systems, santo), to construct improvements and additions to plant wastewater treatment owned City of Wyoming.1 delegated Monsanto the construction work to its subsidiary, Leonard Com- Construction (Leonard). pany general As contractor for this $8,000,000 project, Leonard entered into various completion subcontracts of the work. Leonard subcontracted L roofing work to J Roofing & (J L).& J L Company & entered into contract with J. (Klanderman), Klanderman Company Rob- ert Hardy’s employer, perform the sheet-metal portion the roofing of work.

The in question accident occurred on the roof of the Sludge Building. Thickener The roof of this building, size, 60' approximately 90' was X of precast constructed concrete beams. There were 1Complaints against County City filed Kent and the Wyoming prior were dismissed to trial this matter. . Jr., Moody, roof, in dimension.2 3' 6' openings X eight 4' covers, measuring plywood Three-quarter-inch the roof over installed 8', initially had been X were The covers personnel. Leonard’s openings by prevent devices function as intеnded roof through the falling from objects workmen openings. the roof of on commenced work employees

J & L days or three Building two Sludge Thickener consisted roofing process accident. to the prior glass insulation of foam layer applying of first in- felt were Plies of beams. the concrete over of the insulation top on as a base coat stalled plies Roofing hot tar. "mopped” over were coat and over the base applied then were repeated.3 "mopping” process covers, the plywood required This process removed on at opening, each overlapped (cid:127)which roofing materials occasions since least two opening.4 each edge to the flush were installed accident, opening over the the cover Prior removed at had been where the accident occurred accident, the roofers At the time of the least once. on the completed opening.5 had not work yet 2 skylights the roof Eventually, over each of were to be installed openings. 3 Jackson, Boom, president, Testimony Ray J & & L and Louie of J L foreman. cover to would remove a Mr. Boom testified that his workers replaced. The then install the insulation and base coat. The cover was roofing plies apply and once more in order to cover would be removed replaced again. opening around the Insulation and a base coat had been installed roofing However, application of where the accident occurred. plies the final opening. completed only roofers of the had been on one side edge originally planned of the on the eastern had to finish work Hardy opening during day Mr. died. the afternoon of the v Monsanto Opinion by Moody, Jr., J. accident, morning of the

On between a.m. a.m., and 9 the Klanderman on the crew arrived roof the Sludge Building Thickener to com- mence the sheet-metal work. The sheet-metal work placing flashing included on the perimeter metal the roof eventually and installing skylights over openings. the roof

There were three in the employees Klanderman crew, decedent, Robert Hardy, plaintiffs who was foreman, a working also and two other employees, Kenneth Heim Jay Patmos.6 The morning of the accident was the first time the Klanderman been on employees particular had this roof. time, At five & L J employees already were plies. at work laying roofing The Klanderman crew set their on a piece plywood tools in the north- east corner of the According roof. Klanderman this employees, was done to set up operations outside the area where the working roofers were and to keep protected tools from roofing tar and cement.

Mr. Heim testified he worked the entire morning standing on this piece plywood, drilling metal flashing which was to be on installed perimeter of the roof. Mr. Hardy and Mr. Patmos spent the morning installing flashing along the edge of the roof. Heim further stated that he was unaware the plywood covering an open ing since it did not throughout flex the morning, it was lying at an angle roof, edge of the possessed long-term All employment three men records Klan Hardy, derman. Mr. Mr. Heim and Mr. Patmos had worked for 28, years, Klanderman for respectively. 19 and 11 29 Opinion Moody, Jr., J. Blair any also it. Mr. Patmos nails not notice he did plywood the unaware that he was indicated opening. covering further Heim Mr. a roof was opening to the west nine feet that a roof testified morning. all was uncovered work station of his employees L& noon, and J Klanderman About took,a meal break, ate their and the crews lunch testimony building. together con- the inside during cerning break the lunch what occurred sharply testi- and Mr. Patmos Mr. Heim conflicted. Jackson, asked foreman, & L Louie that the J fied Hardy plywood Hardy asked to to move Bob employees L could that J & so move his tools complete northeast corner their work that afternoon. roof requesting specifically Mr.

Mr. Jackson denied Hardy Hardy move, "knew” his added that but J move of the area.8 Other have to out crew would they employees remembered L testified & hearing request Klanderman for the no direct crew move. Hardy proceeded lunch, Mr. Heim Mr.

After placing the roof. After the northeast corner of working they plywood on had been their tools morning, they the level on that lifted board Walking backwards, Mr. Heim of their knees. looking Mr. Heim to behind him. cautioned Leonard 7 Pictures taken of the scene after accident lying appear at an employee angle. cover had been to indicate that However, depicted photographs plywood nails in in the had it. working accident, morning employees L of the J & were On the Klanderman crew toward the northeast section of the roof where up had set its work station. Hardy v Monsanto Enviro-Chem Moody, Jr., bе careful and to watch out for the uncovered opening taking nine feet to the west. After a few steps, plywood Mr. Heim felt the other end of the slip. opening Heim then the saw roof the crew had working morning. Hardy been over all Mr. had through opening fallen the about 27 feet to the "pit” building instantly. and the died almost

Every legal fact, other inference and conclusion vigorously hotly in this tried lawsuit was con- dispute Hardy tested. While there was no and his co-worker Mr. that picked up the cover and moved point it, a central of concern involved whether Mr. Hardy deliberately removed what he knew to be a may device or whether his action have constituted either the exercise of due care or inad- vertence. concerning

Leonard offered evidence statements allegedly by super- made Mr. Heim to two Leonard visory employees, Raymond Donald Cook and gist Blake, after the accident.9 The of Heim’s state- ment that was Mr. and Mr. Heim had prior "loosened the nails in the board” to lunch10 "ripped plywood up”11 or had the in order to skylights. description way install A of the the accident occurred followed. vigorously having

Mr. Heim denied made these statements and stated that the Klanderman crew ready skylights, pointing was not to install out flashing perimeter that installation of the on the object Plaintiff failed either to to admission of evidence this request judge impeach instruct of its limited use for purposes. ment 10Testimony of Donald Cook.

11Testimony Raymond Blake. Moody, Jr., J. Testimony yet was finished.12 the roof was installing procedure concerning given skylights normal skylights bringing all involved which opening, placing to a roof next roof, each installing opening removing cover of any sky- Removing skylight. before all covers practice light unsafe considered was installed also There was Mr. Patmos. Mr. Heim skylights testimony not be installed could roofing plies laying had finished roofers until the opening.13 the accident time At the around occurred, roofers done remained work opening occurred. the accident where on the skylights Finally, evidence there was project until the afternoon arrived on the had not of the working day Hardy However, as Mr. died. Hardy may the foreman, when Mr. have known to arrive. scheduled material was testimony the in favor of offered There was preparing Hardy Heim were that and conclusion open- flashing place the metal inside a curb or installing skylights.14 ing actually This the before Mr. who stated that contested Heim was skylights the site had delivered to ordered and curbs.15 built-in defendants evidence was offered

Other flashing yet Apparently, piece to be installed of had a second accident, edge at the time of around the entire of roof However, according testimony Jay admitted Mr. Patmos of Patmos. installing possible skylights later finish that it was to install and flashing edge. on the roofs Heim, Jay Testimony Ernest Louie of Kenneth Patmos and Jackson, &J L’s foreman. testimony Raymond Blake. See of Donald Cook and Ray testimony of testimony of Kenneth Heim See rebuttal Boom, president. J & L’s Hardy Monsanto v Jk., Blaik Opinion by Moody, indicate a lack of care on the part of Mr. Hardy failing to discern plywood was roof opening cover and constituted a safety device of simply rather than a sheet plywood lying on the foreman, working roof. As he had the opportunity plans.16 check roof posited Defendants morning’s his during installing work on flashing edge of the roof Mr. should have seen pattern plywood covers on the roof.17 Defen- suggested dants’ if testimony Mr. Hardy saw nails in the he should plywood have realized that it at one time had been used a covering as opening. for a roof Finally, defendants contend that Mr. Hardy should have noticed whether or not there pieces were extra on plywood the roof.

Concerning selection of the devices safety devices, adequacy of the the following was ad- duced. Before work on roof began, Leonard 4' installed the 8' plywood covers over the 3' X X openings 6' roof to function as safety devices.18 The covers were secured nails two-by- driven into pieces four of wood built inside the openings. Plaintiff’s expert testified concerning available safety devices he preferable considered to the de- vices utilized. Alternative equipment dis- nets, belts, cussed included guardrails around the openings or a guard- combination rail and a hinged plywood cover. Plaintiff’s expert further testified regarding the need for warning signs and employee safety instruction._ 16 by pointing Plaintiff plans countered out the roof were 93 pages long page showing edge and that the the details for the did roof openings. not indicate location of the roof roof, however, The was 60' 90’ in dimension. X regarding There was some conflict when the covers were first they request installed and whether pursuant were installed to a J L, according testimony & Kondracki, employee. Bernard J &a L Moody, Jr., J. plaintiff testimony offered was also

There concerning plywood in a installed covers whether put worker better would have manner different covering plywood a roof was the on notice example, opening. have could a curb wood For opening up the elevated, the roof around built been top plywood Thus of the curb. on secured per- obviously plywood more been have would original plans called device. The as a ceived openings. the roof around curbs to be built for There was plans testimony were that indicated skylights changed ordered and deliv- that the project contained on built- for installation ered in curbs. Thus, roof.19 curbs were built on the no expert testified that some Leonard’s Defendant proposed by plain- safety devices of the alternate expert rendered contained features which tiff’s for use the instant them unsafe or unsuitable along expert, with em- Defendant’s situation. ployee-witnesses, expe- that in his further testified plywood customary to use covers it was rience openings danger posed by flat on a alleviate roof. agree plywood appeared

All witnesses adequate safety device cover could constitute an against only properly if it secured acciden- but was securing displacement. these tal method insuring system and the for that the covers covers point focal remained secured thus became a dispute._ responsible ordering It was who was materials unclear Boom, plans. Ray

changing president, J & & L testified that The J changed plans responsible. L was not or that change. He surmised that Leonard Klanderman, requested Hardy’s employer, may Mr. have requested change had to be If Klanderman it would have requested approved by change. Jay & the not Patmos believed that J L Leonard. Young, superintendent, Jack construction Leonard’s requested change. sure who Hardy 57 Monsanto Enviro-Chem v Opinion Moody, Jr., J. Blair opening

Photographs after the of the roof taken Cook, Leonard’s office Donald Mr. accident inspector, manager into admitted were and great in the deal of conflict There was a evidence. testimony concerning employees the of Leonard’s ply type were used secure nails which of pictures. in the The nails in the cover shown wood portrayed pictures plywood ously vari in the were cover "finishing with a smaller nails described as "eight penny finishing ten or "not nails”,21 head”,20 big flat nails with or "common heads”.23 nails”,22 concerning whether the a conflict There was also nails were shown or points25 heads24 picture.26 indicating testimony a conflict There much regarding type among employees defendants’ have been used of nails were used should which adequately Leonard’s own secure covers.27 acceptable expert curing an manner of se- testified that using "eight common involved such covers eight He considered use of or finishing double head nails”. unacceptable method.28 an

nails as depicted plywood Whether or not the sheet ^[20] Testimony of Donald Cook.

inspector. ^{[21] [22]} Testimony of Donald Cook. ^[24] Testimony Testimony Testimony of Jack Rolling Raymond Young, Simonds, Blake, Leonard’s construction Leonard’s field Leonard’s expert witness. engineer superintendent. these covers”. Leonard’s three-and-one-half-inch nails” to secure the boards. of Donald Cook. stated one stated that his crew would sometimes use resecure the covers. Testimony ^[25] For example, pictures portrayed should use "common nails with Raymond Jack Young, carpenters Blake. six or seven nails in the board. Leonard’s construction testified large "long shingle nails” to they flat heads J & L’s used superintendent Testimony "three- or to secure foreman

[28] Testimony of Thomas Healy. 414 Mich Moody, Jr., J. photographs covering was the one the opening Mr. through disputed. which fell was hotly Mr. Heim Mr. Patmos testified that the ply- picture wood in the was too clean and contained nails, covering opening whereas plywood where the accident had no occurred nails and would have dirty been as a result of the Klander- ‍​‌​​‌‌​‌​‌​​​‌​‌​‌​‌​​​​​‌‌‌‌​​​​​​‌​‌​‌​​‌‌​​​‌‍man crew’s use of it as a work station all morning.

Certain related testimony the manner which plywood the covers could be removed. Mr. Jackson, foreman, explained J & L’s it that possible "rip up” sometimes or lift plywood up using the covers without any pry tools to Cook, nails loose.29 Mr. manager Leonard’s office and safety inspector, opined that a worker would probably use a claw hammer to loosen the nails. expert Leonard’s conceded if the cover were secured, it properly impossible would be to simply "rip up”. the plywood great

A deal evidence dealt with the methods practices and of both in resecuring defendants covers after the plywood had been removed to complete steps roofing process. There was you you get And how would that? ”Q. do How would those covers off of there? you the, pull just grab "A. just pull Sometimes would ahold and See, right up. they them two-by-four right two-by-four sideways. were nailed into a The flat, two-by-four edge, you wasn’t was on and can nail way. Anyone just grab into that and it don’t hold solid that can piece plywood pull right up. ahold of that it Rip right up? it "Q. 'A. Yes. you up every you Did have to "Q. remove the nails to lift them time put application an on? just pulled up. just pulled plywood up. 'A. We them We really put plies nails were bent. We couldn’t use them. We all our moppings lay plywood right down around the hole and we would our up plywood.” back and cover the hole back v Monsanto Moody, Jr., to the testimony effect the covers were ini tially installed by Leonard’s employees and se large cured with nails before work commenced on the roof.30 Leonard’s supervisory personnel were people aware that would be working on the roof and that it would be necessary to remove the during covers roofing process.31 result, As a Leonard’s personnel testified that the covers were regularly checked by Leonard carpenters. Kolehouse, Mr. Leonard’s carpentry foreman, stated he checked the covers every morning at approximately Nieland, a.m. Mr. carpenter, Leonard stated that he checked the every covers afternoon at 3:30 or 4:00 p.m.32 There that, was testimony if covers were found to be secured, inadequately carpenters would renail them.

J & L’s methods of resecuring the covers varied. While the J & L foreman ordered his crew to covers, renail he did not check the covers to see whether his orders were carried out. If the roofing employees had nails at their disposal, they would drive shingle nails into the plywood. On occasions, other the covers replaced were and left carpenters Leonard to resecure.33 While these efforts were taken to resecure the plywood covers, confusion existed concerning 30Testimony Kolehouse, carpentry Ernest Leonard’s foreman. 31Testimony Young; testimony of Jack of Donald Cook. 32Mr. Kolehouse also stated that he would check the covers on and throughout day. off daily by Raymond Covers were also checked Blake, engineer, according testimony Leonard’s field of Donald Cook. 33Testimony Jackson, foreman, Kondracki, of Louie J & L Bernard employee, Cook, former J & L manager and Donald Leonard’s office safety inspector. and Jr., Moody, the covers it to see that responsibility whose actually people while were properly secured were among expert, Leonard’s on the roof. working expect others, customary that it was testified should device removing safety person that Further, that position it was Leonard’s it. replace installing the covers was initially step effort on behalf of worker sufficient protection34 inspec- the daily of the covers and installation ef- were sufficient carpenters Leonard’s tions L that since J & Leonard believed Finally, forts.35 duties in its contract with had assumed Leonard, to see responsibility J & L had the sole the covers were resecured.36

However, question concerning was some there rely & L roofers were led to on whether or not J carpenters insuring that the efforts of Leonard’s Whether or properly the covers were resecured.37 efforts was carpenters’ not J & L’s reliance on reasonable, also indicated that Leonard testimony or inform J & L steps employ took no to instruct concerning ees to follow after covers procedures were removed.38 admitted that expert, Healy,

Leonard’s Thomas aware he would not assume the roofers were inspector. ^[34] Testimony Testimony of Jack of Donald Young, Cook, Leonard’s construction Leonard’s office manager superintendent. to J & L Donald Cook. action as end of the Testimony ^[36] Further, ^[38] Testimony jurisdictional disputes. It was intimated that roofers employees crossing day. there was evidence that Leonard’s of Jack of Jack See into their trade. See testimony that the Young Young carpenters of Louie and Donald Cook. and Donald Cook. carpenters renailing Jackson, would renail testimony covers could carpenters represented J & of Jack may have viewed such L’s foreman. the covers at the have resulted Young v Monsanto Moody, Jr., Opinion by they stating, should resecure the covers "The might fall guy through might there be me.” believed, Depending on whom the jury there was openings evidence that roof were uncovered or that plywood covers were inadequately secured before and after the accident. Leonard employees testified that checked the they covers on the morn- ing of the accident and found the covers secured. Mr. Heim testified that during morning a roof opening nine feet to opening the west of the where the accident occurred was definitely uncovered. He further stated that while he noticed that other roof openings were uncovered he was unable to estimate the number of such openings since he worked one location all morning.

Mr. Patmos noticed uncovered roof openings in the course of his wоrk installing flashing on the edge of the roof. He estimated that approximately openings three were uncovered. Jackson,

Louie foreman, J & L’s testified that his crew was working toward the northeast corner of the roof where the Klanderman crew was lo- that, cated. He stated while his crew uncovered openings roof covers, loosened did not they loosen all roof coverings. admitted, however, He there were inexperienced two J & L employ- ees on job at this site.

There was a decided conflict in the testimony concerning whether all roof openings were covered and whether the covers were secured after accident. accident, Cook, After the Mr. a Leonard employee, Patmos, co-worker, and Jay Mr. Hardy’s were in pit of the building attempting administer first aid to Mr. Mr. Cook testi- Hardy. Mich Opinion Moody, Jr., Blair J. only in and that pit it was dark fied open- uncovered was the opening which was roof through. disputed by fell This was ing Hardy Mr. through see stated that he could Mr. Patmos who Mr. through which openings, roof the one two nine feet the west of opening fell and the it. Donald supervisory employees, of Leonard’s

Two checked Young, they and Jack testified Cook openings the roof after the accident all or some of in and secured. This place and found the covers Luurtsema, conflicted with that of Allen testimony investigating the roof the acci- police a officer on indicated that he able dent. Officer Luurtsema nine opening to lift the cover over the feet up opening accident and remembered the west of the Mr. seeing no nails or nail holes that cover. Young Cook and Mr. stated that the cover to the opening was nailed down. west of the accident trial, At end of made a motion to plaintiff exclude to the defense of contributory reference charge. argument jury final Defendant J & L also moved for a directed verdict on Both mo- indemnity. Leonard’s cross-claim tions were denied. jury

The rendered a verdict in favor of all polling defendants. A of the indicated that jurors five of the six concluded that while defen- negligent, dants were had also plaintiffs decedent negligent. been affirmed, T. M. Appeals Judge Court of leave to dissenting. granted

Burns This Court appeal. 407 Mich 880. Hardy v Monsanto Moody, Jr.,

Discussion I Funk v General Motors Corp, 91; In (1974), recognized 220 NW2d 641 Court this general contractor has a common-law to take within steps reasonable his supervisory authority guard against observable, readily avoidable dan- gers common work high areas which crеate a degree significant risk to number workmen. Such steps general reasonable contractor include either providing safety equipment or im- plementing safety programs or requiring subcon- to provide equipment tractors such or implement such programs.

The Funk that, practical Court concluded a from viewpoint, general contractor was the best to position coordinate work and bear the expense of safety equipment Thus, and programs. placing ultimate responsibility job common safety work general areas on the contractor was an at- tempt to foster job safety prevention. accident

In the more recent v Mackworth case Tulkku Inc, Rees Division Industries, of Avis 615; 281 (1979), NW2d our Court concluded that no valid distinction existed between the fail ure to supply any safety device and the failure to provide an adequate Therefore, device. un safety der the Funk and Tulkku decisions, applica where ble, general a contractor’s re duty includes sponsibility provide to require or to subcontractors pro provide adequate equipment safety or safety grams. 414 Moody, Jr., J. as general Leonard39 claims first

Defendant to under it had no contractor Mr. second, assuming Tulkku decisions Funk and discharged faithfully Leonard duty, it had such its responsibility. support argu- its issues

Leonard raises four applied Funk ment should instant case: on failure conspicuous

1. there was Whether employer provide part Hardy’s of Mr. equipment; an and avoida-

2. existed obvious Whether there against; protect danger ble in a existed common 3. hazard Whether area; and work high presented degree

4. Whether the hazard number of workmen. significant of risk to a case, that, Funk here argues unlike the Leonard Mr. part there no obvious failure on was There devices. Hardy’s employer provide safety to provide that Klanderman failed testimony training any safety its employees urged part It this on devices. failure Mr. was not obvious to Hardy’s employer general contractor. Funk, responsibil- placed

In this Court "ultimate in general job safety on the contractor ity gen- Court held that a common work areas”. Our joined general corporate contractor in Two were as the entities case, actually conducted this Leonard and Monsanto. Since Leonard Monsanto, Leonard will all the field construction work on behalf general referred as the contractor. to Hardy v Monsаnto Moody, Jr., eral contractor had a to take duty steps reasonable observable, to "guard against readily avoidable dangers in common work areas which create a high significant of risk degree to a number of workmen”. 392 Mich 104. The fact there may have conspicuous been no failure the immediate provide employer safety equipment does not general relieve a contractor from a Funk duty to provide an safety devices. Such assertion is only factor determining to be considered in whether Leonard reasonably complied its under Funk provide adequate safety equipment within its supervisory coordinating authority.

Furthermore, assuming even that Klanderman’s failure to provide devices safety may have obvious, been this at in part was affected least Leonard’s own selecting actions the plywood covers as It devices. could be considered to expect unreasonable a sheet-metal subcontrac- size, tor on a project this after a general con- tractor provided has items intended to function as devices, select different protective equip- ment for its employees, especially where the sub- contractor no had notice that the safety devices supplied inadequate. were argues

Leonard next there no obvious danger protect since, avoidable against, among things, other nailed-down plywood covers adequate constituted safety devices allevi- which ated any danger. agree. We cannot

The obvious and danger avoidable was created by the presence of roof large openings feet above ground through which workers could fall resulting injury serious or death. Whether Leonard steps guarding against took reasonable 414 by Opinion Moody, Jr., J. Blair se- the devices danger and whether

such adequate questions are Leonard were by lected and not this Court. by jury resolved no Funk that arose argues duty Finally, Leonard work danger not exist in a common the did since of risk to a area, high degree pose nor did it workmen. In its contract number of significant Leonard, Leonard’s agreed & L to seek J L any J & subcontracted approval before written J argues that since & roofing Leonard of the work. con- approval before L not obtain Leonard’s did the perform sheet- tracting with Klanderman roof, agreed L on and since J & metal work & by losses caused J L’s indemnify Leonard for subcontractors, a com- did nоt constitute the roof mon work area. that Leonard reasoning ignores

This fact Klan- the involvement of the fully was aware of work any subcontractor before derman sheet-metal Boom, presi- J & L’s Ray on the roof commenced. dent, to submit testified that Klanderman had work to Leonard and plans sheet-metal Leonard, contractor, ap- had to general that as Further, plans. testimony such there prove personnel they Leonard’s were supervisory doing aware sheet-metal workers were this particular work on roof. occurred, there were at day

On the accident on least seven of two employees subcontractors We danger roof. conclude that created area openings roof existed in a common work high to a number posed degree significant of risk of workmen.40 questions employed validity Leonard of the rationale (1976), App 330; Corp,

Erickson v Pure Oil 249 NW2d Hardy v Monsanto Moody, Jr., Second, that, posits Leonard it assuming had a Funk, under it discharged duty as a It plywood matter of law. asserts that the covers clearly adequate Further, were safety devices. Leo- nard contends that installation of the nailed-down inspections covers and the daily Leonard em- left no doubt that Leonard took ployees reasonable steps insure worker safety. presented

Sufficient evidence in support various question theories to raise a of fact concern- ing the of the adequacy plywood covers as safety devices and the reasonableness Leonard’s ac- example, tions. For alternate devices safety could Thus, have been utilized. the jury could have concluded that the devices selected were inade- Further, quate. safety the devices selected were adequate only deemed when secured if prop- secured. Leonard knew that erly people would on working the roof and that the covers would to complete roofing have be removed the work. While employees Leonard made inspections, gener- early afternoon, the ally morning and late the could have concluded that jury negli- Leonard was gent in not taking certain steps insure that the covers were resecured while men were actually on working the roof.

Furthermore, there indicating was evidence Leonard did not instruct & L employees J concern- ing procedure the to follow in replacing covers. Leonard held no safety meetings with the subcon- tractors, and Leonard did not J & L roofers supply Appeals where the Court of concluded that a common is work area eventually one where two or more subcontractors will work. We need conclusion, since, validity not address the of the Erickson Court’s case, undisputed the employees instant it is two at least actually present working together subcontractors were roof on the the at same time. The roof was common work area. Jr., Moody, resecuring to be used large nails that Leonard addition, not clear In it covers. regular on a basis the covers inspected employees covers when unsecured working day during danger to workmen. highest risk of pose would revealed that Indeed, testimony at trial concerning whose of confusion existed good deal L, was, and J & it between Leonard responsibility day. If working during to resecure covers adequate covers were concluded jury secured, could when only devices take failed to that Leonard further concluded have reasonable, maintaining either toward steps requir- devices itself or adequate covers as to do so. ing the subcontractor that had have also found could jury to coordinated efforts properly contractor general covers, would not have the accident these resecure have roofing employees J L’s would occurred. & re- which covers had been to know had reason employ- since these yet and not resecured moved their work. actually during removed covers ees subcontractors, Mr. such as of other Employees that these necessarily realize would Hardy, devices, nor know which covers safety covers were were unsecured. believed reasonably could have

Finally, only safety that devices adequate the covers were of nails types if with certain properly secured removal. Testi- prevent displacement accidental or concerning employees J L mony of Leonard and & and the secure nails used to covers type depicted photographs of nails type was suffi- markedly. accident scene differed There some support cient a conclusion evidence v Monsanto Moody, Jr., all of the covers on the roof were or inadequately secured. reasons, foregoing

For we conclude Leonard, contractor, general duty as had to take danger to alleviate the steps posed reasonable openings. workmen the roof We cannot say, as law, that discharged a matter of Leonard its duty. acted reasonably by pro- Whether Leonard itself viding adequate programs devices and safety or by subcontractor, L, its J & to do requiring so are questions jury. for the

II Defendant, L, that, argues subcontractor, J & as Funk, or, it had no under duty assuming that J & L did have such it is clear responsibility, that J & essence, L did not breach its J & L duty. argues, since Leonard took the initiative to install ‍​‌​​‌‌​‌​‌​​​‌​‌​‌​‌​​​​​‌‌‌‌​​​​​​‌​‌​‌​​‌‌​​​‌‍covers as devices and undertook to inspect covers, L J & had no responsibility to itself implement a safety program require Klander- man or Leonard to program. initiate a

We need not decide L whether J & had a com- mon-law duty provide adequate safety devices to prevent to the injury employees of other subcon- tractors under our Funk decision.41 In the instant parties None of the have briefed the issue of whether a subcon may subject general tractor contractor is or to the common-law of a recognized simply in Funk. J & L has asserted that subcontractor, apply. virtue of its status as Funk does not Funk, 104, 6, supra, It is to be noted that fn we stated that analysis applied general necessarily applicable to a contractor is not injured employee impose where an of one subcontractor seeks to liability upon another subcontractor. however, say, This is not to in cases where a subcontractor functioning capacity general is, in the of a contractor and for exam- ple, exercising control over another work or subcontractor’s over a area, duty recognized common work the common-law in Funk would 29 414

70 Moody, Jr., J. in its such assumed case, clearly & L J responsibility It had Leonard. with contract ordinary objectives its contractual perform to: agreed L J & care. safety of all necessary precautions for "[Tjake all comply with all and engaged on the work persons [to] federal, municipal state and provisions of applicable prevent or building accidents codes safety laws and on, about, prem- adjacent or to the persons injuries ises where including the being performed, the work is necessary safe- of all erection, appropriate, where ” added.) (Emphasis

guards. ap Funk or Funk-like adopting courts Many right recovery recognized have proaches site accidents construction injured employees pro or safety equipment inadequate caused contractors42 subcontract general grams against negligent performance theory on the ors43 based Many duties. safety assumed contractually general that a contractor courts have held these de regarding delegate not its duties may having to a subcontractor programs vices assume contractually also the subcontractor duties.44 See, Henning, e.g., 163 apply. Tile Co v 32 F2d Federal Cement (CA 1929). 8, Hardy’s Mr. the sheet-metal work to While J & L subcontracted which, jury, testimony, accepted by employer if and there was co-employees to & directed Mr. and his

would indicate that J L station, specifically change plaintiff advanced their work has not general thereby functioning theory as a that J & L was in her brief event, question. any contractor. In we need not resolve 42 (CA 5, 1979); Co, Contracting 591 F2d 318 See Horn v C L Osborn (CA States, 5, 1974); v Weitz 497 500 Giarratano Smith v United F2d Co, 1292; (1967); 824 Maness v Fowler-Jones 259 Iowa 147 NW2d (1971); Co, 592; Kelley App v 10 NC 179 SE2d Construction 323; Co, Wright 582 P2d Howard S Construction 90 Wash 2d (1978). Inc, Co, See, 415 A2d e.g., E I DuPont de Nemours & Rabar v 1980). (Del Ct, Super 512; Smith, 333; supra, Kelley, supra, 497 F2d 90 Wash 2d Hardy v Monsanto 71 Opinion by Moody, Jr., Blair However, why we see no reason J L may & also be held to answer for its own failure perform obligations its contractual In with care. Funk, this recognized Court job safety on a construction site is not necessarily respon- the sole of sibility single Nor any entity. should it be.45We further recognized that of nature the risk involved some bearing has on who should bear responsibility taking appropriate safety precau- tions. 392 Mich 109. It is not unfair to hold J & L to its contractually assumed Funk duties espe- where, here, cially as the subcontractor shared almost exclusive general control with the contrac- tor over the alleged devices to be inade- quate. agree we cannot with J &

Finally, L’s assertion . J&L did not a Funk breach as a matter of law. say We cannot that J & L had an unquali right fied on rely of efforts Leonard in & L’s discharging J own duties of care main taining adequate safety devices in the common work area of the roof. There was sufficient evi dence from which the jury could conclude that &J L breached its duty to Mr. Hardy by failing to implement itself program to properly resecure covers during removed the roofing process.46 Giarratano, supra, 259 Iowa 1304-1305. 45Figures compiled by Department the United States of Labor average, employees on indicate that injured an covered are 10% OSHA during period. By comparison, or become ill an annual occupational injury employees rate for tion illness the construc Occupational Safety trades See discussion in Brennan v 20%. 1975). Comm, (CA 1032, 2, & Health Review 513 F2d 1038-1039 imposing safety Courts have adhered to the rationale that duties arising common-law, participants from statute or contract on various industry employer in the construction other than the an immediate injured See, encourage practices. e.g., workman will enhance or safer Owens, 790, 795; 117; Co, Inc, 781, Rptr v Alber 66 Cal 2d 59 Cal 427 785 P2d 499, (1967), A2d de v E I DuPont Nemours & and Rabar (Del 1980). 504, Ct, Super reasonably could have also L concluded that J & 414 Moody, Jr., J.

Ill to exclude numerous motions made Plaintiff plain- contributory to the reference to claims a valid defense decedent as tiffs Funk. The trial under duties defendants breached motions, having that concluded these judge denied Funk. Defendants fall within this case did negligence to argue contributory to permitted were that instructed similarly was jury the The jury. would oper- of Mr. negligence Hardy ordinary of recovery. bar to Court complete as ate a point, narrowly constru- on this Appeals affirmed Funk, reasoning that since at in ing our decision Funk did not safety supplied device was one time negligence constituted Hardy’s that Mr. and apply, a valid defense. Funk, that contributory negli- held this Court

In reasonably where a gence jury may is no defense provide necessary the failure to that conclude in fact of the was the cause safety equipment Tulkku, our Court in reaf- Subsequently, injury. that contribu- holding firmed this and concluded an where the is invalid defense tory negligence equipment is provide adequate failure injury. to plaintiffs connected causally presented of Since was sufficient evidence there providing neces- negligence causal defendants’ we hold that sary adequate safety equipment, permit jury it was instruct and to error concerning contributory argument ordinary that negligence plaintiffs decedent and reversal required. IV must next consider whether the doctrine We failing duty negligently by breached a care to resecure common-law resecuring inadequately covers or covers had been removed. that v Monsanto Moody, Jr., J. to re- applied should be negligence comparative jury where recovery worker’s injured duce an injury plaintiffs conclude reasonably may the duties delineated caused breach where there is except Funk. We would hold altered, unreasonably the worker evidence adequate dismantled, to use an otherwise or failed on device, not be may instructed jury made has plaintiff where negligence comparative the defendant to whether issue as jury-submissible adequate safety a Funk provide an violated device.47 638; 275 Heights, Sterling

In Placek v (1979), replaced contributory Court our NW2d judicially complete defense as comparative negligence the doctrine of adopted doctrine, new form. Under "pure” its fault percentage plaintiffs of a his or her would injury contributed which to reduce operate and would assessed We di- plaintiff’s recovery. rather than bar in verdict be used cases special rected that "at issue”. negligence plaintiff where the of the is Id., 662. Funk, policy

In our held a matter of Court as negligence that a worker’s would contributory operate as a could conclude defense where 47 Appeals panels A number of that com Court of have concluded parative negligence alleging apply breach of should not to claims provide necessary adequate safety v devices. Brown Unit Corp, 141; (1981); App Tulkku v Products 105 306 425 Mich NW2d (On Remand), Industries, 101 Mackworth Rees Division of Avis Inc (1981); (1980), 709; (1980), App Mich Mich 897 301 NW2d 46 lv den 411 Stambaugh Chrysler Corp, App 166; 510 v 96 Mich 292 NW2d (1980), Corrugated lv den 409 Mich 911 and Timmerman v Universal (1979). 680; Machinery Corp, App Box 93 287 NW2d 316 Other decisions, panels, distinguishing it have held the Funk and Tulkku proper apply comparative negligence Coulter as a defense. Wells v (1981) Sales, Inc, 107; App Ford Rivers v 105 Mich 306 NW2d 411 (1979). Co, App 94; Motor 280 875 NW2d 414 Mich Opinion by Moody, Jr., J. pro- caused the failure to injury Tulkku, negli- In contributory vide devices. safety was held to be an invalid defense where gence concerning evidence was adduced a defendant’s negligence inadequate causal in supplying devices. to apply comparative negli-

We would decline Funk gence involving to cases breach of duties for First, in negligence plaintiff two reasons. of a Funk case was not "at issue” prior adoption to our Second, comparative negligence. we conclude in underlying barring the rationale our action the Funk and Tulkku decisions defense today. remains viable obligated

Where the defendant to provide an adequate safety guard against device to a worker’s so, negligence and fails to do of a worker which should not have resulted if injury the defendant had done so was declared legally in Funk and Tulkku. No irrelevant compelling reasons have been advanced in favor of resurrect- ing a defense which was discredited and formerly barred. Adoption of the comparative doctrine in Placek did not create where liability none existed before.48

The reasons for barring the defense of contribu- tory negligence in these types cases remain Funk, viable today. In our Court considered a well- developed principle that involving cases breach of certain statutory plaintiffs standards care a contributory negligence constituted no defense. In particular statutes, classes of have courts similarly negli apply comparative Other courts have refused to gence principles contributory negligence to cases in which had been prior comparative negli adoption declared an invalid defense (1973). 58, Warren, 134, 141; gence. Zerby v 297 Minn NW2d 141, Corp, 154; See also NW2d App Brown v Unit Products 105 Mich 306 (1981), Stambaugh 166, Chrysler Corp, App 425 and v 173, (1980). 3; fn 292 NW2d 510 Hardy v Monsanto 75 Jr.,' Opinion by Blaik Moody, recognized legislative persons intent protected aby compliance defendant’s with the statute were unable to peculiarly protect them- selves from the risk posed by the viola- statutory Thus, tion. allowing plaintiffs excuse a noncompliance defendant’s with certain statutory legislative standards would subvert intent.49 categories

One of these involved statutes pre- scribing provision equipment workplace the purpose prevention. for of accident Koenig v Patrick Corp, Construction 313; 298 NY Osborne v Salvation Army, (1948); NE2d 133 (CA 1939). 2, 107 F2d 929 in Funk Our Court simply this applied principle to cases involving breach of a duty common-law to provide safety equipment.

The rationale behind our action in Funk was aptly stated the New Court Jersey Supreme quoted in our Tulkku decision approval as follows:

" 'It would be anomalous to hold that defendant has a duty to install but a devices breach of that duty results in liability very no injury meant protect against. holdWe that under the facts presented to inus this contributory case defense of Bexiga is unavailable. v Havir Manufactur- ” ing Corp, 402, (1972).’ 412; Tulkku, NJ 290 A2d 281 supra, 406 622.

Recently, New Jersey court reaffirmed the general types For a discussion of the of statutes which courts barring have defense in contributory negligence construed as use as a upon statutory actions based breach of the standard of care, Prosser, (4th ed), 36, pp see Torts 197-198. See also Osborne v § (CA 2, Army, 1939); Salvation Shop 107 F2d 929 Gun Tamiami v Klein, (Fla, 1959); Warren, Zerby 134; 116 So 2d 421 v Minn (1973), Koenig NW2d 58 313; Corp, v Construction 298 NY Patrick (1948). 83 NE2d 133 29 414

76 by Opinion Jr., Moody, Blair Bexiga,50 contributory in rule announced de- invalid an a worker constitutes negligence of to duty of a in on breach actions based fense devices, notwithstanding safety provide adequate negligence statute comparative the enactment of a & Angelo Foundry v state. Suter San in that 140, 148- Co, 150, 167-168; 406 A2d Maсhine 81 NJ (1979). a worker’s agree allowing to We continue defense partial as total or negligence operate to a its would be thus a defendant of relieve of an presence anomalous in instances where prevented have device adequate safety would injury. in Placek equi- to achieve a more goal

Our was loss negligence causal table balance between Funk in of action allocation. The thrust our work- encourage implementation of reasonable compen- insure place safeguards just as well as to comparative Applying sation for workers. injured defen- involving breach of a to cases safety ade- obligation provide dant’s a device to a whose quate injury avert worker would should have been averted such device fostering goal undercut of substantially primary by encouraging provision worker safety necessary devices for a number of reasons. safety

The a contrac- relative abilities of a worker and posed tor to avoid or the risk of injury eliminate widely inadequate safety absent or devices supe- differ. are a far Financially, contractors position expense rior than to bear the workers this providing pass devices and are able to safety supe- cost on in price. their bid Contractors have Slicing Bexiga upon Coty v U S rationale was also relied Co, Inc, 237; 687; App Machine 3d Ill Dec 373 NE2d 58 Ill (1978). v Monsanto Moody, Jr., J. concerning whether to information rior access necessary type and what device is adequate. reasonably would be considered device that workers unrealistic to conclude It would condi- dangerous where not to work have a choice the current state exist, considering especially tions often become Employees may economy. of our places potentially working conditioned great peril. instances, are because injured workers many

In to be an ade- appears on what relying are they Tulkku, Further, supra, 622. device. quate safety workers, often caused by of inadvertence ordinary work, monot- of their the to the details attention task, result in pressures, may or job of the ony had an prevented have been which could accidents supplied.51 device been adequate safety conduct, instances, in most worker’s Finally, negligence, constitute will may not may which to his or her than injury much closer in time occur failing in to alleged negligence the defendant’s would have proper devices which supply allowing In to assess prevented injury. jury the of it culpability parties, may the relative both difficult for to conclude that many jurors the more disproportionately worker’s actions were significant contributing injury cause of his since Thus, in they occurred closer time to the event. diminished the worker’s recovery would often be to Such a extinguished. an excessive extent or be forth in result not undercuts the rules set only 51 recognized persons employed places Other courts have of possible danger consequence may as a natural exercise a lesser they pay standard of care for their own since must attention employees the details of their work or because the become condi presence See, e.g., Frank G tioned to the of unsafe conditions. Pike v Co, 465, 229, Hough 473; 629; Rptr 3d 467 P2d 234-235 Cal Cal (1970), Co, Wright 181 Mont and Shannon v Howard S Construction (1979). 269, 273; P2d 438 414 Mich Moody, Jr., Tulkku, Funk and also clashes with the ratio- but underlying nale decisions. those Considering disparate parties abilities posed by the risk of harm avoid absent or inadequate safety devices and the ex- reasons pressed above, we conclude that plaintiff involving cases breach Funk duties partial should not be considered as a total or bar recovery except where there evidence that unreasonably altered, the worker failed to use an otherwise dismantled or

adequate safety device. V proper We must next decide it whether was jury concerning Hardy’s alleged instruct Mr. statutory care, violation of a injecting standard of thus plaintiff’s negli- contributory the issue of gence into the case. We conclude it was while proper jury concerning statute, to instruct this jury improperly charged concerning standard care set forth in the statute. plaintiff’s objection, Over was instructed concerning Hardy’s following breach of the pertinent part: Mr- provided statute which employee wilfully displace, remove, "No shall dam- age, destroy carry any safeguard safety or off device or provided any employment or furnished for use in or place employment, any way or interfere in with the by any person.” use thereof 282; other 1967 PA MCL 17.49(3). 408.853;MSA exception With the "willful”, of the word this provision substantially was included in similar originally form in the act which set forth broad occupational safety Michigan standards and occupational safety created an standards cоmmis- Hardy v Monsanto Moody, Jr., expressed sion.52 The purpose the act was to prevent accidents in the workplace by implement- ing education and training programs. MCL 17.49(11). 408.861; MSA

While of the act declares that certain con- § part duct on the of employees prohibited, no penalties provided are in the act for noncompli- ance by employees. All penalty provisions are penalizing aimed at noncompliance by employers. See, 17.49(10) for example, 408.860; MCL MSA and 17.49(17). 408.867; MCL MSA Absent explicit legislative language creating civil liability, common-law courts retain ultimate discretion in deciding whether or not to apply a statutory standard of care in a civil action in lieu of common-law Anderson, standards. Zeni v 117, (1976). 137; 243 NW2d 270 In aid of exercising discretion, courts often look to the statute to ascertain whether application of the statutory standard of care would legisla- further tive intent.

The statute in question is an obvious attempt encourage employees utilize safety devices pro- vided to them and in turn foster preven- accident tion in workplace. goal compatible This is also with the rationale our Funk supporting Tulkku decisions. The goal of encouraging contrac- tors to provide reasonably adequate devices where needed is thwarted where employees know- act, including 408.853; 17.49(3), repealed MCL MSA replaced by Michigan Occupational Safety and Health Act. MCL 17.50(1) seq.; seq. 408.1012; 408.1001 et MSA Currently, et MCL MSA 17.50(12), employee’s defines an duties under the act: employee "An shall: "(a) Comply promulgated, with rules and standards and with orders pursuant issued to this act. "(b) remove, displace, damage, Not destroy, carry safeguard off a provided furnished or in place employment, use in a or interfere any way with the any person.” use thereof other 29 414

80 by Moody, Jr., J. Blair accept excuse without a reasonable refuse ingly devices, or such where afforded protection or dismantle unreasonably alter employees their devices, interfere with unreasonably such of such devices. co-workers’ use in is not question the statute importantly, More conduct. Sec- employee toward inadvertent geared removal or alteration the willful prohibits tion device. 113, 18, fn we reserved Funk, 392 Mich supra, In employee conduct on the issue whether judgment the lack of due goes beyond qualitatively which de- proper constitute may care or inadvertence breach of this conclude that a worker’s fense. We construed, care, properly statutory standard alleging to claims breach constitute a defense may Funk and Tulkku deci- of duties delineated our sions. sufficient evidence adduced

While there was giving an instruction concern- justify this case to statute,53 in- was ing improperly this concerning structed the statute’s standard care. willful conduct em- proscribes The statute meaning may vary of the word willful ployees. according to the context in which it is used. As Eagle Highway noted the Court Comm’rs of (1884): 173, 180; Twp Ely, v NW justify giving Plaintiff contends there was insufficient evidence to agree. concerning an instruction violation of this statute. We cannot concerning Hardy’s In addition to Mr. the circumstantial evidence cover, subjective intent hearsay statement was Mr. Heim’s with which he removed the into The statement indi- introduced evidence. Hardy, knowing plywood cated that Mr. Heim Mr. cover to be device, purposely was removed the cover. This statement during alluded to on seven occasions trial. offered, hearsay objection cautionary No nor was a instruction requested jury’s which would have consideration of the limited Therefore, assessing credibility. statement conclude that instruction. Mr. we cannot Heim’s giving justify there was evidence to this insufficient v Monsanto Opinion by Moody, Jr., 'willfully’, "The used to word when denote intent done, suscepti- with which an act is is a word is which significations, depending upon ble of different the con- employed penal text in more which are intentional are corruptly posely, law. it is used. It which is statutes distinguish frequently to those between acts by design and those and which thoughtless may or It accidental. sometimes mean again unlawfully, designedly pur- or or or an intent some act in with to do violation of the * * * it used implying Sometimes is as an evil justifiable intent without excuse.” purposes statute, For of this we construe the employee’s term willful to purposefully ployee an conduct in describe removing a device which the em- safety realizes or have is a should realized having device without a reasonable excuse. Con- purposeful accidental, duct is if it is purposeful intentional conduct is not if a reason- able worker would not have known both designed emplaced device is a device or to protect against peril injury a or of death and that injury may the risk of or death result from its removal or alteration. case,

In instant the trial court erred failing distinguish purposeful conduct de- constituting sсribed in the statute from action ordinary inadvertence.54 This error was further by incorrectly instructing jury exacerbated jury Hardy’s ordinary negligence The was instructed Mr. complete jury constituted a defense. was further instructed concerning violation of the statute as follows: accident, Hardy’s no "At the of Mr. time state we had in this a statute provided remove, employee displace, which that or willfully shall damage, destroy carry any safeguard off device or furnished provided any place or employment employment, for use in or of way any person. interfere any you with the use thereof If other plaintiff’s find that the decedent violated this or at statute before occurrence, plaintiff’s negligent time of the a proximate then the decedent was as negligence matter of law. You must then decide whether such was a of cause the occurrence. 414 Mich Jr., Moody, proximate cause statute, if a that violation contributory injury, constituted of the supra, 143.55 Zeni, of law. a matter as Under plaintiffs of the standard Zeni, violation prima give merely facie case to a rise would could be rebutted. which permissible Accordingly, it is hold we concerning violation worker’s instruct statutory sufficient there is care where standard giving support an instruc of such evidence prevent designed is tion, the statute where statutory occurred, where the harm which holding our is consonant of care standard that the may only a valid constitute conduct which breached has that a defendant to claims defense Tulkku decisions Funk and under our duties unreasonably altered, the worker that dismantled, in which adequate safety to use an or failed jury may if instructed then be device. they statutory plaintiff’s of such violation find proximate excused,56is a care, unless standard injuries, violation consti- such of his or her cause decedent, plaintiffs Rob- further that the defendants claim "These known, knew, reasonably Hardy, have or should ert G. plywood he was it, They covering opening further claim that in the roof. an looking removing negligent underneath the cover without using whether there was care to determine or otherwise reasonable opening plywood cover. an under the Hardy may Roofing’s have that Mr. "It J & L claim is defendant forgot simply while about it of the hole but known of working there because Mr. Cook and he and Mr. existence may they known it was also claim that he have there. And say them that Mr. Blake Mr. Heim told morning. Hardy It from the cover that removed the nails Hardy may hole was have realized the J & L’s claim that Mr. is there, through reasonable it the exercise of but he should have known reasonably Hardy safety, Mr. had been care for his own careful and that if * * hole he should have known about the 8, July trial 1976. The handed down on Our decision Zeni was conducted in 1977.Zeni thus controls. in this case was adequate express opinion may an constitute We no on what question. statute in excuse for violation of the v Monsanto Jr., Moody, Blaik Zeni, prima negligence.57 tutes a facie case su instances, pra, 143. In such where the con plaintiff cludes that is responsible for causal above, plaintiffs negli misconduct as outlined gence be compared then with the defendant’s may Placek, negligence. supra.58

VI Indemnification against Leonard filed cross-claim J L& seek- ing indemnification, or, alternative, in the contri- bution. Leonard’s ‍​‌​​‌‌​‌​‌​​​‌​‌​‌​‌​​​​​‌‌‌‌​​​​​​‌​‌​‌​​‌‌​​​‌‍claim for indemnification was upon based three J theories: & L’s breach of an express contract of indemnity, common-law indem- nity, arising indemnity from breach of certain contract provisions.

J & L’s motions for a directed verdict on Leo- nard’s cross-claim for indemnity were denied. Since verdict was rendered in favor of all defen- dants, the jury findings made no concerning Leo- nard’s indemnity claim. The Court of Appeals affirmed without addressing issues raised concern- ing J & L an indemnity. filed application for leave to appeal as cross-appellant in this Court. J & L argues the trial court erred in its denying motions for directed verdict.

Express Indemnity Contract In cross-claim, its Leonard right asserted a course, jury plaintiff Of if the concludes that the either did not statute, excused, plaintiff’s violate the or the violation was or conduct proximately did not injury, contribute to his then considers plaintiff’s according principles conduct to common-law as outlined IV, supra. in sections III and 58The of nature a worker’s conduct described in this statute was possible alluded to as a conclude it is defense in our Funk decision. We now permissible apply comparative negligence principles to in this limited situation. Mich Moody, Jr., J. express of an & L’s breach upon J

indemnity based indemnity. contract of Leonard, L agreed: J &

In its contract and owner harm- Leonard indemnify and save "[T]o costs, losses, expenses damages, any all against less and may hereaf- and/or owner which Leonard liability demands, claims, any pay out reason ter or suffer arising related actions, out or rights or of action arising opera- out of the work or performance the tions under resulting occurring the contract and or in connection with death) damages (including injuries or from to, part by, or in contrac- or in whole caused (or (or any of employees), his his subcontractors tor thereof), corporation or any person, firm or employees (or thereof) directly em- indirectly or employees any his or engaged by either contractor ployed or subcontractors.” provided: further

The contract claim or any construed and "This contract shall be thereto, respect arising with shall deter- controversy of the State of the laws mined accordance with Illinois.” L law appeal, argues

On J & that under Illinois upon to indemnity Leonard is entitled based for two express breach of this clause indemnity First, indemnify if the is reasons. clause read negligence, provision Leonard from its own expressed in an Illi against public void as policy agreements statute governing indemnity nois construction contracts.59 1971, 29, provides: Ill Rev Stat ch 61¶ public respect agreements, private, or "With contracts or either construction, alteration, building, repair for the or maintenance of structure, bridge, dealing highway other work with con- viaducts or struction, therewith, any moving, or for excavation connected demolition or covenant, promise indemnify every agreement or hold 85 Monsanto v by Opinion Moody, Jr., Blair J.

Second, argues provision & L that J of a rule of contract unenforceable reason applied indemnity agree which is construction that an intent to indemnify ments. The rule states must clearly one’s own against A court will refuse to expressed. unequivocally Westinghouse Electric intention. infer such an Building Corp, Monroe Elevator Co v La Salle 395 (1946). L 429; posits 604 J & that since Ill 70 NE2d to plaintiff only by could be found liable Leonard negligence, and the con reason of its own active specifically indemnify does not Leo provision tract negligence, Leonard is not nard from its own foregoing to indemnification under entitled However, construction. we need rule of contract question. not address this brief, Leonard concedes that it is not In its under the express indemnity entitled to relief "if this Court determines that agreement [the providing contract clause Illinois law is con- further trolling] be enforced”. Leonard states may L argument J & had not raised until controlling appeal Illinois law is leave to granted by this Court.

Leonard drafted this contract. It cannot now surprise concеrning claim the contents of the con Further, tract. Leonard has not advanced any argument parties’ agreement should not why that, be enforced. We therefore conclude in accor parties’ agreement, dance with the Illinois law 124, Gallagher, Rubin v controls. 294 Mich 127- People’s Voorheis v The (1940); 292 128; NW 584 Elkhart, Indiana, Mutual Benefit Society 91 person person’s harmless another against public policy from that own is void as wholly unenforceable.” Supreme The statute was declared constitutional the Illinois Court Co, 494; in Davis v (1975). 881 Commonwealth Edison 61 Ill 2d 336 NE2d 29 Mich Moody, Jr., 469, 473; (1892); Grey- Detroit NW Union v Aetna Employees Federal Credit hound 434, Co, 430, 437; 151 App NW2d Life Ins (1967).60 conceded that under applica- Since Leonard has not enforce an express law it may ble Illinois relating negligence, to its own provision indemnity Thus, waived. there is we consider this claim no J & L’s need to determine whether motion granted directed should have been on this verdict theory. Indemnity

Common-Law actions, indemnity In tort common-law is an developed doctrine which as an equitable exception to the harsh rule that tortfeasors were not entitled apportion damages to or shift between liability or through themselves contribution indemnifica- tion. The instances where common-law indemnifi- cation have been deemed appropriate between tortfeasors were outlined Justice by Cooley his treatise on torts as follows:

" general 'The may expressed rule be found in the maxim that no man can make his own misconduct ground for an action in his own favor. If he suffers wrong-doing, because of his own the law will not relieve him. recognize equities springing The law cannot as wrong from a it. in favor committing of one concerned in exceptions But there are general some to the rule upon which rest which reasons at least as as those forcible support where, They the rule itself. are of cases although parties wrong- the law holds all the liable as injured doers to the party, yet as between themselves all, some of may wrongdoers them not be at and their equity require respond the others for all damages may complete. many There are such cases unintentional, wrongs where the are or where the Laws, 2d, 187, p See also 1 Restatement Conflict of 561. § Hardy v Monsanto Moody, Jr., relation, party, by chargeable reason of some is made ” Noret, Twp Hart with the conduct of others.’ v (1916). 427, 432; 158 NW indemnity Common-law been has said to be liability available to a tortfеasor where has been imposed by relationship reason of his her liability imposed tortfeasor,61 another simply where is by operation law,62 where the tortfeasor personal negligence,63 is free from fault or causal seeking indemnity or merely guilty where tortfeasor "passive” negligence.64 judge correctly Leonard claims that the trial & denied J L’s motions for directed verdict because

the merely passively could have concluded Leonard was

negligent failing to discover a dangerous condition created J & L. Under such theory, Leonard claims that it would be entitled indemnity. argues hand, On other J & L that all theories advanced Mrs. involve part claims of active on the of Leonard. against Therefore, if the rendered verdict premised Leonard, the verdict would be on Leo- negligence. nard’s own active Under such circum- stances, Leonard would not be entitled to indem- nity. recognized previously

Our Court has the distinc- opposed passive, tion negligence active, of as seeking indemnity. suits between tortfeasors Vil- 61 Noret, supra, 432.

Elevator NW2d 797 135 (1976). 54; 160 NW 542 173 supra, 428; ^[62] 64 Tahash, 63 Village Tahash NW 382 NW2d Co, (1972); 370 v 315 Mich (1919); Detroit, Portland v Citizens Flint (1916). (1965); Indehmity Husted v Consumers Power Dodge 393, 398-402; Dale v Co, G H & M R Co v 399 Mich Whiteman, Telephone Ins Co of North 24 NW2d 104 421, 427; 388 Mich Co, Boomer, Co, (1946). 206 Mich 376 Mich America 249 NW2d 110 698, 706; 194 632, Mich 41, v Otis 636; 202 51; 52, 29 Mich 414 88 Moody, Jr., J. Co, 206 Telephone Mich of Portland v Citizens

lage Detroit, M R Co G H & v (1919); 382 632; 173 NW (1916). In the Boomer, 52; NW 542 160 injured case, severely child was Portland young electric fallen into contact with a he came when by the was maintained The electric wire line. village given had The Village of Portland. permission string telephone company defendant in negligently lines lines. The were telephone Eventually, wires. too close to electric stalled wires, lines, upon the electric leaning telephone during and fall snap the electric wires caused winds, the child. The child recovered injuring high telephone against village and the a judgment company. indemnification, the village seeking

In its suit negligent it merely passively claimed was dangerous created to discover a condition failing The rejected Court this telephone company. First, the Court noted for two reasons. contention of the was active in village in part condition created dangerous character. or could known was telephone company through an village discovered by have been Second, inspection. 206 643. Mich village the malfeasance of the combined with to cause the child’s telephone company injury. active, Since causal guilty both defendants were negligence, indemnity unavailable. Portland, detail

In the Court discussed in some rights were trilogy appeals indemnity which among for a parties resolved various held liable Maslen, v Grant site 151 construction Mich injury. Grant, Detroit v 466; (1908), NW Grant, (1904), and Anderson v 626; 98 NW (1897). 161; 72 NW 144 Hardy Monsanto v Moody, Jr., J. agree- city into an cases, entered In these complete general con- contractor ment with general highway. contrac- The work on struction The to a subcontractor. the work all tor sublet failing negligent to ade- was subcontractor quately excavation. illuminate an injured into his vehicle fell when was

A motorist against judgment and recovered a excavation indemnity city city. from obtained the general upon express indem- based contractor parties. agreement In between these nification general con- noted that Portland, Court the construction work over had no control tractor negligence. guilty Therefore, of active and was granted from indemnification common-law he was the subcontractor. jury possible argues for that it was

Leonard passive merely guilty of it was that to conclude Thereby, negligence. have made Leonard would jury-submissible indemnification, and J & case properly de- was verdict motion for directed L’s initially posits as the covers Leonard nied. adequate safety devices, that Leo- installed were inspections, employees numerous made nard’s in the remove the nails if Mr. did not employees Thus, cover, must have done so. J L& negli- L’s that J & could have concluded gence primary of the accident cause only in its consisted that Leonard’s dangerous created condition failure to discover a L. J & argument presupposes Leonard Leonard’s failing negligent passively could found be solely by L’s J & discover a condition created negligence. agree. could Leonard We cannot negligent only its result of breach found as a 90 414 Mich 29 Opinion by Blair J. Moody, Jr., under Funk.65 own duty Such negligence would be in active nature.

Leonard had a duty to supply adequate equipment devices. The selected by Leonard to function as safety devices could only deemed adequate if and when it was properly In secured. instance, such an the "failure to inspect” the covers is intimately connected to Leonard’s own to duty provide adequate safety devices.66 If the jury concluded that Leonard failed to properly inspect the covers or failed to properly instruct J & L concerning procedures to follow in resecuring covers, these such action would constitute active negligence and a breach of Leonard’s own to duty supply adequate safety devices.67 65 Appeals panels A number of Court of have held that breach of See, negligence. Funk or Funk-like e.g., duties constitute active Brown Corp, 141; v App Unit Products (1981); 105 Mich 306 NW2d 425 Engineering Inc, Michigan, Duhame v Kaiser NW2d 737 App 68; 102 Mich 300 (1980); Detroit, Peeples App 285; v 99 Mich 297 NW2d 839 (1980); Tiffany Co, App 267; v Christman 93 Mich 287 NW2d 199 (1979); Armstrong Agree Co, and Darin 128; & v App Ben 88 Mich (1979).Contra, 276 NW2d 869 Corp, see Nanasi v General Motors 652; (1974). App 224 NW2d 914 Spear, 139; In (1889), Johnson v 42 NW 1092 our Court employed analogous Johnson, same rationale in an situation. In we duty concluded that supply inherent equipment to safe duty inspect equipment to equipment to assure that remains safe for use workmen. upon Leonard support relies two cases in of its contention that negligence, any, passive. Leonard’s if was Tromza v Tecumseh Prod Co, (CA 3, 1967), ucts 378 F2d 601 Casualty and Continental Co of Westinghouse Corp, Supp (ED Mich, Illinois v Electric 327 F 1970). cases, In both an permitted assembler-manufacturer was to collect indemnification from Since the component part. manufacturer of a defective component manufacturer created the defect as well as failed defect, to discover the its fault primary. only was deemed fault part on the of the assembler-manufacturer was its failure to discover the defect. We inapposite. find these cases Casualty, In Continental the defect was deemed to have been "undiscoverable” the assembler-manufac granted turer who indemnity. Further, was both cases involved a policy judgment component manufacturer, the fault of the marketing component, primary. defective case, In the instant both charged Leonard and J & L were with the Hardy v Monsanto Opinion by Moody, Jr., Further, reasoning Leonard’s support its against assertion J & L indemnity would consti- complete tute a Hardy’s defense Mrs. claims rather than a valid claim for indemnification. The not find negligent could Leonard passively dangerous failure to discover a condition created since, L, case, J & under the facts of this inspection covers was necessary discharge supply Leonard’s own require provi- adequate sion of devices. that,

We viewing therefore conclude the evi- light dence in the presented most favorable Leonard, no valid claim for common-law indemnity based on passive present to existed.to Fox, Caldwell v 401, 394 407; Mich jury. 231 (1975).68 46 NW2d

Indemnity Based Breach of on Contract Leonard finally right claims to indemnity based & L’s on J breach its agree- contractual ment comply safety to with laws and codes.69 Leo- provide safety general entity to devices. As contractor as the supplying safety equipment, charged supplying Leonard was with adequate safety adequate only devices. The devices were deemed Inspection properly necessary when secured. of the covers was to continuing adequacy safety insure of the covers as devices. Under circumstances, inspection, any, these Leonard’s in if could passive secondary not be said to constitute or fault. 68 specifically subject, While need not we address the it is interest ing supporting active-passive negligence distinction, ground to note that the as a relieving totally common-law indemnification a defendant responsibility damages, of all for been has abandoned Minnesota. application comparative negligence prin The Court concluded that ciples apportion damages degree 368 operates closely to tortfeasors’ claims contribution to more according between tortfeasors their relative Industries, Inc, 362, of fault. Tolbert v Gerber 255 NW2d 367- 1977). (Minn, 69 agreed J & L to: necessary precautions "take all on state and dents or persons engaged for the of all work, comply applicable federal, provisions with all [to] municipal safety building prevent laws and codes to acci- about, injuries persons on, adjacent premises to the erection, being performed, including where the work where appropriate, necessary safeguards.” of all 29 414 92 Moody, Jr., J. contractual L its J & breached argues

nard creating laws comply agreement impose could Since the condition. dangerous to discover a for its failure on Leonard liability L,& it is claimed by J condition created dangerous indemnity should be entitled that Leonard provision. contract & of this on J L’s breach based not indi Leonard do upon by cases relied The indemnity claim for recognizes a cate that Illinois Co, Arjack v Westerfield In theory. this upon based Inc, 137; 945; Dec 397 NE2d Ill 3d 33 Ill App 78 it only as (1979), indemnity discussed court active-passive negligence distinction to the relates in upon based common-law claims recognized Nogacz v Procter & court demnification. Manufacturing Co, 636; Ill 3d Gamble App (1975), express discussed breach of an NE2d has agreement. Leonard conceded that indemnity express claim it under its recover may Illinois law. indemnity under & v Northwestern Steel Wire Finally, Mosley Co, 853; 710; 31 Ill Dec 394 NE2d App 76 Ill 3d (1979), indemnity an clause express involved to in аgreed explicitly where subcontractor general contractor for losses incurred demnify of OSHA by reason the subcontractor’s violation regulations. has under Leonard waived its claim indemnity provision. the express Further, in Mosley, the court concluded express agreement sub- indemnity under indemnify to contractor would not be liable general against contractor losses caused general have negligence. contractor’s own We con- Leonard presented cluded that under the facts it may not be unless was plaintiff held liable to negligent. actively therefore, pro-

It has not appears, that Leonard Hardy v Monsanto Moody, Jr., J. recognizes authority Illinois show that vided upon indemnity supporting theory breach based provisions those included other than contract promise indemnify. express However, within retried, is free to Leonard must be this case since present and- author- on the issue further evidence position support ity its the trial court theory. recognizes such a Illinois VII of this case should that retrial Plaintiff contends damages. Plaintiff rea- to the issue be limited poll jury that five of of the indicated that a sons jurors have been defendants to found all the six urges negligent. five of the six Plaintiff that while plaintiff jurors had been contributo- concluded that negligent, rily defense should this affirmative injected under our decision into the case have been Therefore, be limited to Funk. retrial should in ascertaining plaintiff’s

damages. the determination new trials limited to Partial large part damages because are disfavored damages relating liability often are issues Wagoner, closely 315 Mich v intertwined. Kistler (1946). exception 162, An to this 173; 23 NW2d liability general is made in cases where rule is Trapp King, 608; 374 Mich 132 NW2d clear. v (1965); Ausbury, 378; 120 NW2d Bias v (1963). Trapp in the Bias and

Unlike the situation Hardy’s cases, Mr. con- the affirmative defense of very tributory here. much at issue poll jury ‍​‌​​‌‌​‌​‌​​​‌​‌​‌​‌​​​​​‌‌‌‌​​​​​​‌​‌​‌​​‌‌​​​‌‍whether It unclear from the of the negligent that Mr. had been concluded question or the statute because he violated 414 Mich 29 Moody, Jr., because he breached common-law duties of care. The given instructions concerning Mr. Har- dy’s violation of the statute failed to distinguish the statutory standard of care from ordinary con- tributory negligence. Further, in the event a ver- dict is rendered in favor of plaintiff, Leonard may have right to have the jury determine its cross- claim for based indemnity upon J & L’s breach of contract.

We, therefore, reverse judgment of the Court of Appeals and would remand the case for a new trial not inconsistent with this opinion. Levin,

Williams JJ., concurred with Blair Moody, Jr., J.

Case Details

Case Name: Hardy v. Monsanto Enviro-Chem Systems, Inc

Court Name: Michigan Supreme Court

Date Published: Aug 23, 1982

Citation: 323 N.W.2d 270

Docket Number: 63385, (Calendar No. 6)

Court Abbreviation: Mich.