*1 Anderson DeShambo v ANDERSON DeSHAMBOv 9). (Calendar 10, Argued No. March Docket 122939-122940. Nos. 23, July 2004. Decided brought an action in the Leelanau Circuit Court E DeShambo Robert Anderson, against R. and Pauline Nielsen and Charles W Norman injury. injured seeking damages personal while for DeShambo was Anderson, by working as an for who was hired Nielsens court, independent clear trees from their land. The contractor to J., Power, granted summary disposition for the Niels- Thomas G. inherently dangerous ens, determining logging is not an activity sophisticated and that the Nielsens were not landowners timber, knowledgeable cutting pre- inherent in thus of the risks inherently dangerous activity venting application of the doc- general rule that a landowner is not hable trinal injuries independent negligently causes. for that an EJ., Appeals, The Court of Fitzgerald, Holbrook, Jr., curiam, Cavanagh, JJ., unpublished opinion per reversed and in an remanded, regarding concluding question that a of fact existed reasonably anticipated inherent in whether the Nielsens the risks logging inherently logging and that the determination whether 233854). (Docket jury question The is a Nos. appealed. Nielsens opinion joined Justices In Chief Justice Corrigan, an Supreme and Markman, Cavanagh, Young, Weaver, Taylor, Court held: inherently dangerous activity purpose is to of the doctrine nonliability eliminate of landowners for to innocent by inherently dangerous activity by indepen- parties occasioned Because the dent contractors on the landowners’ land. employee an contractor involved in the was an inherently dangerous activity, performance and not a third of the liability apply party, to create for the the doctrine does landowners in this case. only, concurring a land- in result stated that Justice Kelly, performance retaining dan- control over the

owner injury gerous be hable for an work should employee, and in that the decision in this case contractor’s but Inc, Ormsby Welding, Capital Mich 45 could be [July- interpreted landowner, negligent, may escape to hold that such a if all caused to the of a contractor. That interpretation principles underlying would he inconsistent with the common law and with the tort reform statutes.

Reversed. Negligence — — Liability Employees op Independent Landowners’ Contrac- Dangerous —Inherently tors Activities. inherently dangerous activity

The nonliability doctrine eliminates injuries parties landowners for to innocent third caused inher- ently dangerous activity undertaken an contractor landowner; on the land of the apply the doctrine does not performing of an work. Theodore F. Fulsher for DeShambo. Cox,

Michael A. Attorney General, Thomas L. Casey, General, Solicitor and D. Joel McGormley, Assistant Attorney General, for the intervening plaintiff Depart- ment of Community Health. Menkes,

Bensinger, Cotant & (by Arndt), PC Dale L. for defendants Nielsen.

Corrigan, C.J. In case, we consider whether the inherently dangerous activity doctrine has been prop- erly extended to impose liability on landowners for injuries to employees of independent contractors per- forming dangerous work. We hold that the Court of Appeals has improperly doctrine, extended the contrary original purpose, to include injuries to those involved in performance of dangerous work. The purpose of the doctrine protect is to innocent parties injured as a result of an inherently dangerous undertaking. Because plaintiff was an employee of an independent contractor rather than a third party, the doctrine does not apply this case. We thus reverse the judgment of the Court of Appeals. DeShambo Anderson HISTORY AND PROCEDURAL

I. UNDERLYING FACTS and own and Pauline Nielsen1 Defendants Norman County, Michi- farm Leelanau on a 130-acre reside primarily gan. and to farm corn land is used The neighbor manages cherry operate A orchard. cherry operation, are not involved tree and defendants cutting pruning hired an Defendants or trees. in independent Anderson, fell and contractor, Charles up tops poplar delimb and to clean small trees property. logger previous had left on the that a trees previously experienced cutter, had Anderson, an timber woodcutting performed Under the ar- for defendants. rangement Anderson, and Ander- defendants between pay keep tops the tree for firewood son would parties poplar did that he cut. defendants for delimbing felling was not discuss how performed. help hired Robert DeShambo Anderson *3 plain- property. On him on defendants’ with work delimbing day work, he he was trees when tiffs first yelling. turned around and saw heard someone Plaintiff falling felled it. The tree a tree him as Anderson toward logs plaintiff then some hit on the shoulder and struck causing log spin, ground, strike him in the one on log pin tree. back, him and the fallen between paralyzed. left The incident has against negligence defendants Plaintiff filed a action subsequently Anderson, dismissed his claims but alleged, against alia, inter Plaintiff Anderson.2 negligence Anderson’s be- defendants were liable for 1 voluntarily against defendant Charles dismissed his claims Plaintiff appeal, party term to this Because Anderson W Anderson. only refers to the Nielsens. “defendants” paid through Michigan to recover funds also intervened The state of plaintiffs medical treatment. Medicaid for

cause timber cutting was ac- tivity. Defendants for summary moved ar- disposition, guing that plaintiff could not establish liability under any recognized exception to the general rule precluding of a landowner injuries that an indepen- dent negligently causes.

The trial granted court summary disposition for defendants, ruling that logging was not an inherently dangerous activity and that defendants were not sophis- ticated knowledgeable landowners of the risks inherent in cutting timber. The Court of Appeals reversed, con- cluding that a question of fact existed regarding whether defendants reasonably anticipated the risks inherent in logging.3 The Court reasoned that defen- previously dants had hired logging companies to con- duct tree removals on their property and that defendant Norman Nielsen had admitted that logging was risky. The Court further stated that because plaintiff pre- sented evidence of the hazardous elements of logging, the determination whether logging is inherently dan- gerous is a jury question. granted

We defendants’ application for ap- leave to peal, directing the parties to address “whether ‘inherently dangerous activity’ doctrine has ap- been propriately beyond extended original application to only third parties to extend liability to landowners and general contractors for to employees of indepen- dent doing contractors dangerous work.”4 3 Unpublished opinion (Docket per curiam, 22, issued October 233854). Nos. (2003). together We ordered that this case be submitted Ormsby Capital Inc, Welding, ; with 471 Mich 45 684 NW2d 320 *4 relationship which involves the between the “common work area” and “retained control” doctrines the effect of those doctrines on the general nonliability independent rule of for owners and contractors. v Anderson DeShambo Opinion op the Court OF REVIEW

II. STANDARD doc- activity” “inherently dangerous Whether injuries include extended to properly trine has been injured who are contractors independent of law question work is while performing Likewise, review de de novo. we that this Court reviews summary disposition on a court’s decision novo a lower Preci- Nagel Co v Concepts Products & Quality motion. (2003). 364; sion, 362, 666 NW2d Inc, 469

III. ANALYSIS Michigan that long It has been established contractor is not an independent who hires person negligently the contractor injuries liable for 492, Erickson, 39 Mich Iron Co v Superior causes. Lake (1852). (1878); v 2 Mich Wright, DeForrest rule have devel- time, general to this exceptions Over activity” “inherently dangerous including oped, under protected of persons doctrine. The class a transformation since undergone doctrine has inception. doctrine’s

A. APPLICATION OF THE INHERENTLY DANGEROUS ACTIVITY DOCTRINE TO THIRD PARTIES inherently dangerous rise to the Early giving cases limited the activity exception doctrine Parker, 123 NW Rogers third In parties. an Court first discussed to a nonliability damages caused rule of general performance an contractor’s party by third party. harm to that likely of an act to do whether a landowner this Court was question before farm- to clear employed who damages neighboring property land was liable for *5 [July- Opinion of the Court resulting when a fire that the contractor had spread set land. neighboring This Court resolved the issue on statutory grounds, but discussed in obiter dictum the principles common-law that would have applied, stat- ing: relieving

[T]he employer rule where the work has independent been committed to an subject contractor is exceptions the well-established that: thing “If the unlawful, to be done is in per itself or if it is nuisance, se a or if it cannot be doing damage, done without he by another, who causes it to be done be the latter servant, agent, independent contractor, or is as much liable injuries may happen persons which to third from the act though done as person. he had done the act in itSo is the duty every person of person, who does in or causes by another, done an act liable, which from its nature is taken, precautions others, unless are to do to see to precautions taken, it that those are escape he cannot duty by turning performance the whole over to a (citation omitted; [Id. contractor.” at empha- 282-283 some added).] ses In Inglis v Millersburg Ass’n, Driving 136 NW 443 this Court elaborated on the above common-law exception. case, In that agents of the defendant association had set fires on fairgrounds prop- erty in the defendant’s possession it, to clear and the fires spread plaintiffs to the land, adjoining causing damage. This Court held that the defendant was es- topped to that argue independent contractors, rather than the unincorporated association itself, respon- were sible for the damage, because it had pleaded defense it at trial. Id. at 317-318. This Court argued or opined dictum, however, obiter that an would have applied general to the rule of nonliability landowners for the actions of contractors. While this Court cited its decision in Rogers and various Anderson DeShambo articu- rule, the best perhaps other formulations was as follows: the principle lation of contractor, whereby one “The doctrine another, reserving no control done lets to be who work work, to third not liable performance of the over resulting negligence of the con- from persons for important servants, subject to several or his tractor is, employer from these ... is where exceptions. One of duty work, under a character of the nature and carefully It cannot be performed. that it is others to see Cockburn, C.J., language used than in better stated leading Q.B. 321, 326, Peate, Div. in Bower v. *6 is, to a man who orders work case. It ‘that well-considered things, which, executed, in the natural course from be expected neighbor must be to injurious consequences to his adopted by such conse- arise, means are which unless averted, doing of that to see the quences may be is bound mischief, cannot relieve necessary prevent and is to which employing responsibility by some one else— himself of his employed do the work from to it be the whether arises, independent person danger or some the which —or necessary he has ordered prevent to the act do what is to abrogate not becoming .. This does from unlawful.’. done It leaves abun- independent contractor. still the law as to by is,’ application. ‘There as stated proper dant room for its committing Cockburn, difference between ‘an obvious executed, which, properly if to from to a contractor be work arise, handing done, injurious consequences can and no done from which mischievous to him work to be over precautionary measures are consequences will arise unless adopted.’ that, authority to the effect weight of reason and is

“The duty public, person, third party to the or is under a where done, carefully do, or is he is about to have to see that work cannot, by others, injury he as to avoid performed, so liability, it contractor, in case is letting his it to a avoid etc., Covington, injury of another.” negligently done to the (55 Patrick, St. 215 N.E. & 61 Ohio Bridge Co.v. Steinbrock (citations [1899], [Inglis at 320-321 cited. 618 and cases added).] omitted; emphasis 34

Thus, rule, come the above which has to be as known “inherently activity exception,” the duty founded on the on the existence of a behalf of landowner, contractor, employer or of an that duty must be of the type nondelegable. employer or landowner must also be aware that danger necessarily that it exists and involves danger others. Notably, type danger contemplated Inglis danger parties Court was to third those the dangerous activity. involved in

Over the decades, next several this Court reaffirmed that, doctrine, under this the landowner must itself owe duty specific some party, that the negligent injury act causes the cannot collateral to the for, work contracted and that that occurs reasonably must be expected See landowner. Cary v Thomas, 616; (1956); 345 Mich 76 NW2d 817 Co, Barlow v 195; 310 16 Kreighoff Mich 715 NW2d (1944); Grinnell v Carbide & Corp, Carbon Chemicals 509; 282 Mich (1937); 276 NW 535 Tillson v Consumers Co, 53; Power (1934); 269 Mich 256 801 NW Watkins Co, Gabriel Steel 692; (1932); NW Wight Co, v H G Christman NW (1928). Notably, precedent, under this Court’s the doc- trine applied only third parties.

B. EXPANSION INHERENTLY DANGEROUS ACTIVITY THE OF DOCTRINE TO A CONTRACTOR’S EMPLOYEES In City Warren, Mich Vannoy 158; 15 166 App of NW2d 486 the Court Appeals purported expand the the scope inherently dangerous activity doctrine to hold a landowner not to a hable third party, but the a estate of deceased of an indepen- dent contractor. The Court expressly rejected the land- argument owner’s that the applied doctrine only 35 v Anderson DeShambo of an indepen- and not to the parties third dangerous inherently in the engaged dent contractor limiting that The Court stated Id. at 164-165. activity. the “violate[d] absolute persons to third exception the Id. at 164. duty of the . ...” character Corp, Motors McDonough In v Gen a Court reversed (1972), a plurality NW2d landowner, conclud- for the defendant directed verdict activity exception inherently dangerous the ing that the for liability on owner impose applied could be The employee. plurality to a subcontractor’s the rule that formulation of Justice COOLEY’s quoted in Inglis: this Court cited

“ job of work for me employ ‘If I a contractor to do a execution, obviously exposes which, progress in the of its think, responsible, perils, ought, I I to be to unusual others * * * naturally expose I to be done which cause acts ” 438, injury.’ [McDonough quoting Inglis, at others (3d ed), p Cooley 109.] Torts supra quoting at assumed explanation, plurality Without em- included the contractor’s quoted “others” above only parties. and not ployees dissented,5 contending that the in- Justice BRENNAN “strang- herently dangerous activity exception protects himself plaintiff and does not to “a who was apply ers” activity.” inherently dangerous in the actively engaged McDonough at 453. His dissent stated: clear in application of this well settled injured person stranger to inher is a

cases where ently dangerous activity. Inglis [supra], In activity plaintiff burning, and the was was danger landowner; [supra], neighboring in Grinnell stove; explosion, purchaser of a was Kavanagh joined Justice Brennan’s dissent. Justice G. T. *8 471 Mich 27 op Opinion the Court [supra], dangerous activity Watkins the was elevated steel construction, plaintiff contractor; the a mason in Olah v Katz, (1926), Mich 112 danger [207 892] NW the was open pit, plaintiff neighboring child; the a in Detroit v Corey, (1861), danger open ditch, the was an the plaintiff passer-by; Moynahan, a in Darmstaetter v (1873), danger roadway, the awas wall of ice in the the rider; plaintiff sleigh a in McWilliams v Detroit Central Co, Mills danger Mich 274 the was a railroad switching operation, plaintiff passer-by.. ..

Indeed, there are no almost cases which have come to brought by notice in which the suit is or on behalf aof actively engaged who was himself in the inher- ently dangerous activity. precedents

Those few which are cited seem to be upon grounds. founded other designed protect [T]he rule of is innocent parties injured by execution of an dangerous undertaking. designed, The rule is not nor was it ever intended to benefit the contractor who undertakes dangerous work, employees. or his

Thus, employ if I stump contractor to remove a tree my yard by explosives, from use of I my am liable to neighbor garage damaged by whose the concussion. This it project because is I motion; who have set the it is I peril; who have my created the unusual it is for benefit that explosives myself were my used. As between neighbor, ought permitted I plead not to be that it was negligence my contractor’s and not own which dam- aged property. his

But if the up truck, contractor should blow his own I expert should not be liable. He explosives is the and not [sic], me legal right I had neither the capability nor the supervise his work. The same would be true if the contrac- injured himself, tor’s injured by workman had or been carelessness of a negligence fellow workman or the of his employer. Neither the contractor nor his are DeShambov Anderson op Opinion the Court Cooley’s of the “others”, contemplated in statement as Indeed, creates they privy to the contract which are rule. peril. result, today’s decision is not but its mischief *9 company has like General Motors logic. One assumes that safety expertise. may have It well no want of access knowledgeable more about engineers payroll on its far employer. decedent’s But steel than the structural Olah, liability Inglis, Wight and here on the predicate other, many, many impose upon line of cases is to Watkins sophisticated the same burden to attend less defendants safety employees of contractors. of the 453-456.] at [McDonough, supra 712, 724; Hutchinson, 422 Mich In Bosak v Vannoy this Court relied on NW2d 333 for the that McDonough proposition occasion, has, on been dangerous activity exception danger- performing of contractors applied analysis of provide Court did not further ous work. This assembling a issue, however, holding that given case, that did hours, activity involved in crane after activity, but a con- not constitute a routine activity. Id. at 728. struction Further, Swope, App in Justus v in the (1990), on the trial court which NW2d stated, relied, the “The Appeals case Court instant far, has, thus activity doctrine inherently dangerous liability involving in cases owners impose been found to danger.” Id. at capable recognizing potential fully and others. The Court 96, citing McDonough, Vannoy, homeowners,” “mere id. impose liability declined to on of an at that an a dead tree from removing while contractor sustained that it was yard. the homeowners’ The Court stated cognizant to be expect the homeowners unreasonable in tree removal. Id. at risks inherent particular Thus, 97-98. seemingly the Court would have imposed liability if the homeowners had been aware of such The opined risks. Court in that imposing case, however, was the fear that exactly Justice BREN- expressed in his dissent in McDonough. NAN

C. ANALYSIS analysis in Justice BRENNAN’s McDonough dis- sent persuasive and consistent the longstanding with principles common-law discussed in our case law. When a landowner hires an independent contractor to per- form work that poses peculiar danger harm, or risk of it is reasonable to hold the landowner liable for harm to third parties that results from activity. If an em- ployee contractor, however, of the negligently injures injured by himself or is the negligence of a fellow employee, it reasonable to hold the landowner *10 liable merely because the activity involved is inherently dangerous. As Justice recognized, the inher- BRENNAN ently dangerous activity doctrine was designed pro- to tect third parties, actively not those involved in the dangerous activity.

The Restatement of Torts echoes the principle. above Torts, 2d, § Restatement of provides: employs independent

One who an contractor to do work employer which the recognize likely should as to create during progress peculiar physical a risk of harm to special precautions taken, others unless subject are liability physical by for harm caused to them the failure of the contractor to exercise reasonable care to take such precautions, though employer even provided the has for precautions such in the contract [Emphasis or otherwise. added.]

Similarly, 2 Torts, 2d, § Restatement of 427 states: Anderson DeShambo v employs independent do

One who an contractor to work employer involving special danger others the a which or to know to be inherent in or normal to knows has reason work, contemplates has reason to the or which he or making contract, subject contemplate to liabil- when by contrac- ity physical harm caused to such others for against precautions tor’s failure to take reasonable such danger. [Emphasis added.] to “others.” provisions applies

The text of the above other necessarily persons The term “others” refers activity. directly than those involved in the Moreover, in the all illustrations Restatement §§ 416 and 427 involve to inno- pertaining parties directly cent to those involved activity. For the first illustration under example, provides: § 416 B, contractor, employs A an

1. to erect a building upon abutting upon public highway. land B, contract entrusts the whole work erection to requiring contains a clause the contractor to erect a suffi- necessary cient fence around the excavations for the erec- building. tion of the It also a contains clause which liability any contractor assumes all harm his caused digsB work. excavation but fails to erect fence. In C, consequence, walking along highway night, while at subject falls into the cellar and is hurt. A is to C. illustration, In the above C is an innocent third party directly dangerous activity. and is not involved in the Similarly, § in the following C illustration under 427 is an innocent third party: B, contractor, employs

3. A to excavate unguarded, a sewer in the street. B leaves the trench *11 warning lights, without and C drives his automobile into it work, danger in the dark. The inherent in the and A is subject liability to C.

Although a of this Court in cited plurality McDonough discussing §§ 416 and of the when Restatement inherently dangerous activity exception, plurality recognize failed to that the term “others” refers to third in parties, persons and not to those involved the dan- gerous activity.

The Court of in extended Appeals Vannoy improperly inherently dangerous activity doctrine to include contractors. We thus over- Appeals holding rule the Court of in Vannoy. We also reject this Court’s obiter dictum in Bosak to the extent approved that it Vannoy’s extension of doctrine. longstanding precedent, As our McDonough, before and clear, the Restatement make the inherently dangerous activity exception is limited to third parties.6

Further, as recognized Justice BRENNAN in McDon- ough, allowing liability to imposed be on landowners for injuries resulting to an independent contractor’s em- ployees necessarily liability will result imposed not only large on corporations fully capable assessing providing safety on precautions, but also “less sophisti- cated” may landowners who be unaware of such dan- gers or to provide precautionary unable measures Indeed, avoid the inherent in many risk. situations it may be the risk itself that prompts landowner to hire an independent in the first instance. A may contractor who specialize routinely engage in activity likely would be better able to perform the activity Likewise, in a safe manner. the contractor concurring colleague opines Our that an to this rule exists performed where landowner retains control over the work and is in a position adequate safety to ensure that the contractor takes precautions. presented Post at 42. Because these circumstances are not case, express opinion regarding we no whether a landowner who has may subject retained control over the work negligence. to a contractor’s caused the contractor’s *12 Anderson DeShambo v Opinion by J. Kelly, implement safety reasonable probably better able employees for the of its who precautions protection work, duty and this perform dangerous accordingly adhere to the lies with the contractor. We thus estab- lished common-law that this Court had con- principle sistently McDonough. followed before inherently dangerous activity exception

Because the apply injured party employee does not when the is an of than a third independent party, rather in the Accord- exception apply does not instant case. granted summary the trial court ingly, properly dispo- sition for defendants.

IV CONCLUSION inherently dangerous activity We conclude that exception parties apply is limited to third and does not independent injured contractors while performing dangerous work. Because was an employee of an contractor rather than a party, inapplicable the doctrine is in this case. Accordingly, judgment we reverse the of the Court of Appeals.

Cavanagh, Weaver, Taylor, Young, Markman, JJ., C.J. CORRIGAN, concurred with

KELLY, J. in I {concurring only). agree result with the However, by majority result reached in case. I this separately point majority write out that the takes no cognizance analysis of the effect of read when in together with its decision Ormsby Capital Welding, (2004). Inc, I 684 NW2d 320 believe that jurisprudence requires retaining our that a landowner inherently control performance dangerous over work should be liable for an to an Opinion Kelly, J. case, when employee. contractor’s decision otherwise.1 Ormsby, suggests read with the decision A not liable to the generally landowner is a contractor caused contractor’s An made negligence. Ante at 31. has been job site and where the landowner retained control of inherently hazardous activities were undertaken. today

The Court that a holds landowner is liable negligence injures for a contractor’s the contrac- in an employee engaged tor’s activity. Ante at The Court adopts 38. Justice BRENNAN’s *13 dissenting analysis in v Gen Motors2 and McDonough “ the legal right holds that the landowner has ‘neither the capability supervise [the nor con- ” at quoting McDonough tractor’s] work.’ Ante at alleged 456. The landowner here is not retained have job control of the site. indicated, previously

As a landowner to a liable if employee contractor’s he retained control over haz- positioned ardous work was to ensure that contractor took adequate precautions. Funk v General 91, 105; Corp, Motors 392 Mich 220 641 NW2d in part grounds by overruled on other v Mon- Hardy Inc, 29; santo Enviro-Chem Systems, (1982). NW2d 270 theory retained control doctrine is a distinct

liability. applies entity It where the engaging ser of the independent legal vices contractor has the right and the capability supervise the work. Plummer v Co, 646, 659; Bechtel Constr 440 Mich 489 NW2d 66 Ormsby ground I dissented from the decision in on the inherently dangerous activity doctrine and the retained control doctrine liability. are distinct theories of tort (1972). McDonough Corp, v Gen Motors 201 NW2d 609 DeShambov Anderson Opinion Kelly, J. (1992) J.). (opinion by applicable The doctrine is Levin, regardless employer of whether the is a landowner or a general contractor. argued

This case was and submitted with together Inc. The in Ormsby Capital Welding, Ormsby Court doctrine, holds that the retained control applied to general subcontractors, contractors who utilize merely element of the common work area doctrine. It an independent theory liability. is not at Ormsby 55-56.

If Ormsby landowners, is held to apply the deci- sions here and in read Ormsby, together, could have unfortunate unintended results future cases. The inference to be drawn from them is this: a landowner who retains inherently dangerous control of on work job site will not be liable for to a contractor’s unless occurred a common work majority area. The the validity denies of this inference. However, Id. n at 60 13. the opinion’s language strongly belies that denial. statutes,

Under the tort-reform liability is almost always only joint. several and not Legal MCL 600.2956. fault, is distinct from although it is based on fault. Fault is determined the trier of fact3 who it, assigns regardless of whether a can held party *14 600.6304(1). legally However, liable. MCL injured an party can only recover from a party can be held legally liable.

Under the preceding statutes, tort-reform the trier of fact assign can fault to a landowner who has directed the actions of an in engaged inherently dangerous activity. The opinions Court’s DeShambo and Ormsby interpreted could be to hold 600.2957(1). MCL

Opinion by J. Kelly, all escape landowner could liabil- negligent that such a of his contractor. caused to the ity for liable under the inher- cannot be held landowner DeShambo. Neither activity doctrine. ently dangerous the retained control doc- can he held liable under Ormsby. trine. inconsistent with

I that this result would be believe Moreover, it the common law. underlying principles with the intent of the tort-reform would be inconsistent legally to be negligent A actor is intended statutes. majority potentially actions. The under- liable his holdings in these two principle mines this with correcting language problem, cases. Absent unacceptable in the to me analysis majority opinion only majority. and I concur the result reached