199 N.W.2d 827 | Mich. Ct. App. | 1972
KIRNER
v.
GENERAL MOTORS CORPORATION.
Michigan Court of Appeals.
Egloff, Mainolfi, Taylor, McGraw & Collison, for plaintiffs.
Smith & Brooker, P.C. (by A.T. Lippert and Mona C. Doyle), for defendant General Motors Corporation.
*212 Davidson, Chacklos, Jungerheld & Hoffman, for Bittner Boiler and Engineering Company.
Before: R.B. BURNS, P.J., and HOLBROOK and O'HARA,[*] JJ.
Leave to appeal applied for.
R.B. BURNS, P.J.
The third-party defendant has been granted a separate trial.
This case involves two basic issues:
(1) What is the legal duty of an owner of premises to an employee of a subcontractor on the premises at the invitation of the owner to make repairs?
(2) Did the trial judge properly rule on the restriction of certain testimony and the admission of other evidence?
Plaintiff Frank E. Kirner was employed by Bittner Boiler and Engineering Company as a boilermaker and welder. He and his foreman were sent to the defendant company to repair a cupola. The foreman directed plaintiff to cut out the lintel above the cupola's automatic charge door approximately 15 feet above the floor. Plaintiff used a ladder and climbed to the lintel with his cutting torch and hose. He tied his hose to the top of the ladder, sat on a nearby monorail and started blowing dirt off the top of the lintel with the air from his torch to determine where he would make his cut. Suddenly the lintel gave way and in falling struck the cutting torch hose, dragging plaintiff from the monorail. He fell inside to the bottom of the cupola, sustaining serious injuries.
Witnesses testified that an examination of the lintel revealed broken weld spots which were old and had been broken for some time. It is the claim *213 of the plaintiff that the broken weld spots caused the lintel to fall, that the defendant knew or should have known of the dangerous condition, and that defendant had a duty to tell the plaintiff of this dangerous condition.
At the close of plaintiffs' opening statement the defendant moved for summary judgment. The motion was denied.
At the close of plaintiffs' proofs the defendant moved for a directed verdict. The motion was denied.
The defendant also objected to the trial court's instructions, as they related to the duty of an owner of premises to an employee of a subcontractor on the premises at the invitation of the owner to make repairs.
An owner of premises has a duty to warn an invitee of hidden defects or dangerous conditions on the premises. This duty is also applicable to contractors or subcontractors performing services on the premises. Thompson v Essex Wire Co 27 Mich. App. 516 (1970); Clark v Dalman, 379 Mich. 251 (1967).
The exception to this general rule as applied in Dees v L F Largess Co, 1 Mich. App. 421 (1965), and other cases is applicable only when the condition or defect is obvious to the contractor or invitee and is not applicable in this case.
Therefore, the trial court did not err in refusing the defendant's motions for summary judgment and directed verdict.
The trial judge also correctly charged the jury as to the applicable law.
Defendant claims the trial judge erred by refusing to allow the defendant's safety director to explain to the jury the proper method of lowering a heavy piece of steel.
*214 The trial judge determined that the safety director had never attempted or participated in an operation like the one involved in the accident and was not an expert.
The determination of whether one qualifies as an expert witness is a matter within the discretion of the trial judge. Coles v Galloway, 7 Mich. App. 93 (1967).
The defendant also claims the trial court erred by admitting the 1963 blueprints of the cupola into evidence as being irrelevant and immaterial.
The trial judge has discretion in determining materiality and relevancy of evidence. Thompson v Peters, 26 Mich. App. 590 (1970).
Affirmed. Costs to plaintiffs.
All concurred.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
