Plaintiff John M. Szymanski, an employee of Cadillac Window Cleaning Company, was injured when he fell from a scaffold suspended approximately forty fеet above the ground while washing windows at defendant Kmart Corporation’s world headquarters. Plaintiff and the two other men who were on the scaffоld with him were not wearing safety belts or safety lines. Plaintiff subsequently brought suit against defendant and, after a jury trial, was awarded $1,306,250 in damages. 1 Defendant now aрpeals the judgment as of right. We reverse._
*429 I
Defendant first argues that the trial court erred in denying its motion for a directed verdict at the close оf plaintiffs proofs. When ruling on a motion for a directed verdict, the trial court must determine whether the evidence is sufficient to establish a primа facie case against the defendant.
Jenkins v Raleigh Trucking Services, Inc,
Generally, an employer of an independent contractor is not liable for the contractor’s negligence or the negligence of its employees.
Bosak v Hutchinson,
In this case, the trial court relied on both exceptions in denying defendant’s motion for a directed verdict. First, the trial court found that the activity of working on a scaffold high above the ground was inherently dangerous. Sеcondly, with regard to the issue of control, the trial court noted:
*430 K-mart gave Cadillac a store room, some equipment, the name tags, keys to the stairwell and towers, and Cadillac employees could eat in the cafeteria, there was no written contract and the work — that thе employees were occasionally told what windows to clean. In this instance the signs of control are not nearly as strong as in the Funk case, but the Court will conclude once again that it’s a jury question. ...
We disagree with the trial court with regard to the issue of control. In
Funk,
the Court found that the defendant, General Motors Corporation, exer.cised an "unusually high degree of control” over the construction project on which the plaintiff was injured.
Funk, supra
at 105. The Court considered General Motors’ supervision over some aspects of accident prevention, its extensive supervision of compliance with other contract specifications, and its overall day-to-day dominance of the projeсt, and found that such factors supported "a finding of, if not actual, at least tacit control by General Motors of safety in the highly visible common work areas.”
Funk, supra
at 107. See also the plurality decision in
Plummer v Bechtel Construction Co,
The evidence in this case does not support such a finding of control. There was no indication from the testimony that Kmart directed Cadillac regarding the manner in which the job was to be performed or that Kmart had any control with regard to the manner in which the scaffold was аssembled and used. The absence of evidence on these factors also makes this case distinguishable from Jenkins, supra. The issue in Jenkins was whether defendant Ford Motоr Company retained the right to control the activities of its independent contractor, a truck driver, and therefore could be held responsible for the improper loading *431 of his truck that allegedly caused the plaintiff’s death. As in this case, the independent contractor worked exclusively for the defendant without a written contract. However, in Jenkins, Ford not only told the independent truck driver what to haul and where to haul it, but, morе importantly, Ford loaded the truck. Jenkins, supra at 428-429. Thus, there was evidence that the defendant in Jenkins, unlike defendant in the present case, had retained control over the independent contractor’s activities, particularly those that allegedly caused the accident.
We also conclude that the trial court erred in denying defendаnt’s motion for a directed verdict based on the doctrine of inherently dangerous activity.
The inherently dangerous activity doctrine provides аn exception to the general rule of nonliability by the employer of an independent contractor. Under the doctrine, liability may be imposed when "the work contracted for is likely to create a peculiar risk of physical harm or if the work involves a special dangеr inherent in or normal to the work that the employer reasonably should have known about at the inception of the contract.”
Oberle v Hawthorne Metal Products Co,
Similarly, liability should not be imposed where the activity involved was not unusual, the risk was not unique, "reasonable safeguards against injury could readily have beеn provided by well-recog *432 nized safety measures,” and the employer selected a responsible, experienced contractоr. Funk, supra at 110.
The activity performed by plaintiff in this case, washing windows forty feet above the ground while on a scaffold suspended from the side of a building, is activity that presents a possibility of serious injury unless special precautions are taken. However, as noted by plaintiffs expert at trial, any danger of serious physical injury from this activity could have been prevented by the use of well-recognized safety measures, i.e., safety belts and safеty lines. The risk of injury was not inherent to the work being done, but was created by the failure to use well-recognized safety measures. On the basis of our reading of Funk and Bosak, we are convinced that the evidence presented at trial, even when viewed in the light most favorable to plaintiff, could not have permitted reasonable minds to conclude that the activity at issue was inherently dangerous.
Plaintiff argues that the verdict in his favor should neverthelеss be upheld because the jury found defendant to be independently negligent. Although plaintiff’s complaint alleges negligence on the part оf defendant in failing to hire a competent contractor, failing to supervise its employees and contractors, and so on, the jury was оnly instructed with regard to the issues of control and inherently dangerous activity.. These are the theories that plaintiff argued during his opening statement аnd closing argument. Accordingly, we reject plaintiffs argument on appeal.
Our resolution of the previous issues makes it unnecessary for us to address the other issues raised by defendant.
Reversed.
Notes
Plaintiff also brought suit against other defendants, including the manufacturer of the platform and the seller of the wire and clamps used to secure the scaffold. However, these suits were settled before trial.