Plaintiff Michael Johnson, conservator of the estate of Daniel Johnson, an incapacitated person, appeals by right from the trial court’s order granting summary disposition to defendant Paul Robert Olewnick Builders, Inc., under MCR 2.116(0(10). Daniel Johnson was permanently incapacitated after falling from a roof on a construction job. Daniel, an employee of subcontractor Wimsatt Building Materials, was delivering shingles to the roof of the home when he slid off the roof after a toe board installed by another subcontractor, Olewnick, dislodged and failed to stop him. Because we find that defendant, when it installed the toe boards, owed Daniel a common-law duty to install them in a nonnegligent manner, we reverse the trial court’s grant of summary disposition and remand the matter to the trial court.
Defendant moved for summary disposition on the basis that, as a subcontractor, it owed Daniel no duty to keep the premises safe for another subcontractor’s employees, citing Funk v Gen Motors Corp,
The issue of whether a defendant owes a duty to a plaintiff to avoid negligent conduct in a certain circumstance is a question of law for the court to determine. Hughes v PMG Bldg, Inc., 227 Mich. App 1, 5 [574 NW2d 691 ] (199[7]).“In determining whether a duty exists, courts examine a wide variety of factors, including the relationship of the parties and the foreseeability and nature of the risk.” Hughes, supra [citing Schultz v Consumers Power Co, 443 Mich 445 , 450;506 NW2d 175 (1993)]. Here, Defendant Olewnick did not hire or supervise Daniel Johnson and his employer, did not have coordinating and job safety responsibilities of a general contractor, and did not own the land. It is the immediate employer of a construction worker who is generally responsible for job safety. Hughes, supra at 12.
We review de novo a trial court’s decision on a motion for summary disposition under MCR 2.116(0(10). On review, we “ ‘must consider the available pleadings, affidavits, depositions, and other documentary evidence in a light most favorable to the nonmoving party and determine whether the moving party was entitled to judgment as a matter of law.’ ” Michigan Ed Employees Mut Ins Co v Turow,
Defendant correctly asserts that the general rule of law in construction site injury cases is that only the injured person’s immediate employer — and not another subcontractor — is responsible for job safety. Funk, supra at 102. In some instances, though, a general contractor may be held liable to an injured party. Hughes, supra at 6. A general contractor can be liable under the “common work area exception,” if the following elements are established: “(1) a general contractor with supervisory and coordinating authority over the job site, (2) a common work area shared by the employees of several subcontractors, and (3) a readily observable, avoidable danger in that work area (4) that creates a high risk to a significant number of workers.” Id., citing Groncki v Detroit Edison Co,
Nonetheless, nothing in our state’s jurisprudence absolves a subcontractor — or anyone on a construction job — of liability under the common-law theory of active negligence. In Clark v Dalman,
Nothing in our subsequent law, including Funk and Hughes, the latter discussed hereafter, has abrogated that common-law duty. Funk prohibited the establishment of a general rule that a mere premises owner or a subcontractor had to make the premises safe for another subcontractor. Funk, supra at 104 and n 6. Discussing the rationale behind preventing subcontractor liability, the Court recognized that a mere premises owner or subcontractor was not in the best position— either professionally or financially — to install or oversee safety measures. The
But the distinction lies in the duty required. Even if defendant had no direct duty to take proactive measures to make an otherwise unsafe work place safe, and therefore no duty to install toe boards to prevent Daniel from falling,
Defendant also claims that because plaintiff did not specifically plead “active negligence,” the claim is precluded. In his complaint, plaintiff alleged, among other things, that defendant failed to ensure that toe boards were properly fastened to the roof. Plaintiff did not direct any one allegation to any specific defendant, but grouped the allegations together with regard to all defendants. Generally, a complaint must contain a “ ‘statement of the facts’ and the ‘specific allegations necessary reasonably to inform the adverse party of the nature of the claims’ against it.” Nationsbanc Mortgage Corp of Georgia v Luptak,
Next, defendant relies on Hughes in disclaiming liability. In Hughes, the plaintiff, a roofing subcontractor, was injured when he stepped onto a porch overhang that another subcontractor was in the process of erecting. Hughes, supra at 3. The latter subcontractor had not finished erecting the overhang and had not installed cement footings or support posts. Id. Thus, the overhang was tenuously attached to the roof with nails only. Id. When the plaintiff stepped onto the overhang to shingle it, it tore from the roof and collapsed. Id.
This Court addressed the defendant subcontractor’s liability in the last paragraph of the opinion. Id. at 12-13. Rejecting the plaintiffs argument that Funk’s common work area exception applied to another subcontractor, this Court observed:
Plaintiff was working on the construction site as an independent contractor. He was not invited onto the site by State Carpentry and did not use State Carpentry’s equipment. As such, State Carpentry had no duty to make the premises safe for plaintiff or to warn plaintiff of a known dangerous condition. See Klovski [supra at 5]. [Id,.]
Hughes is distinguishable in two respects. First, this Court did not analyze whether the defendant undertook an action that it then performed negligently to the plaintiffs detriment, but instead soundly refused to extend the common work area exception to a subcontractor while reaffirming the principle that one subcontractor
Second, even if an active negligence analysis had been used, the facts at hand differ. In Hughes, the defendant was in the process of completing the roof but had not finished it. Moreover, other than building the roof, the defendant in Hughes did not take any measures to accommodate other workers by installing any safety devices. Finally, nothing in Hughes suggests that the defendant performed its job negligently. Here, defendant performed the task of nailing in the toe boards, but the job was allegedly completed in a negligent manner. For these reasons, defendant’s attempt to analogize Hughes must fail.
Defendant is correct that plaintiff did not plead or attempt to prove that defendant had a contractual duty to install the toe boards. Nonetheless, we do not find those proofs necessary. Despite the absence of a contractual provision, plaintiff can raise a legitimate claim of active negligence by showing that defendant negligently performed an act and that its negligent performance was likely to result in harm.
Finally, we must address the legal issue of the nature of the duty owed to Daniel. The question of duty has been explained by our Supreme Court as follows: “The question whether a duty exists depends in part on foreseeability: whether it was foreseeable that a defendant’s conduct may create a risk of harm to another person and whether the result of that conduct and intervening causes was foreseeable.” Schultz, supra at 464, citing Buczkowski v McKay,
Reversed and remanded. We do not retain jurisdiction.
Notes
Absent a contract provision to the contrary, of course, but none has been shown.