Batchelder v. Echelon Homes

Decision Date18 November 2021
Docket Number353265
PartiesAARON BATCHELDER, Plaintiff-Appellant, v. ECHELON HOMES, ELKOW HOMES, ELKOW HOMES CCV, JOHN DOE CARPENTER COMPANY, JOHN ROE, FABIEAN CURRENT CONSTRUCTION, JOHN POE, PLYMOUTH PLUMBING, WOLVERINE ENERGY SERVICE, JOHN BOE, JWF FAMILY, INC., JOHN COE, MICHIGAN SHELF DISTRIBUTORS, and JOHN GOE, Defendants, and CINDAV CONSTRUCTION, INC., Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

UNPUBLISHED

Oakland Circuit Court, LC No. 2017-160326-NO

Before: Stephens, P.J., and Sawyer and Servitto, JJ.

PER CURIAM

Plaintiff Aaron Batchelder, appeals by right a judgment of no cause of action, entered following a jury trial, in favor of defendant Cindav Construction, Inc. ("CCI").[1] We affirm.

I. FACTUAL BACKGROUND

This case arises out of injuries plaintiff allegedly sustained in July 2015 when he slipped and fell while descending a stairway after performing plumbing work at a new-construction home. On the date of the accident, plaintiff was employed by a plumbing subcontractor, which had been hired to perform work at the new-construction house owned by general contractor Elkow Homes. Other subcontractors worked at the property, including CCI, who was responsible for the finished carpentry work. Plaintiff tripped and fell on carpentry debris while descending the basement staircase, which, at the time, had no handrail. Plaintiff injured his shoulder and required several surgical procedures to repair it.

Plaintiff subsequently initiated this action, alleging several claims against CCI, which he captioned as claims for premises liability, respondeat superior, negligent supervision and training, and vicarious liability. After CCI filed a motion for summary disposition, which the trial court denied, it sought leave to appeal in this Court on an interlocutory basis. This Court denied CCIs application "for failure to persuade the Court of the need for immediate appellate review." Batchelder v. Echelon Homes, unpublished order of the Court of Appeals, entered October 24, 2019 (Docket No. 350664) (Batchelder I).

Before this case proceeded to trial, the parties filed a joint pretrial order, which summarized both the disputed and undisputed points of fact and law. The parties informed the trial court that they would file supplemental briefs before trial concerning the disputed legal issues, including, as relevant here, (1) whether plaintiffs claims regarding CCIs failure to install a handrail on the property's basement staircase sounded exclusively in premises liability, not also in ordinary negligence; (2) whether CCI could, as a subcontractor, be held liable under the "common work area" doctrine; (3) whether CCI owed plaintiff a statutory legal duty, for purposes of negligence, under MIOSHA;[2] and (4) if so, whether evidence of MIOSHA violations would be admissible at trial and whether the jury would be instructed with M Civ JI 12.05 ("Violation by Defendant of Rules or Regulations Promulgated Pursuant to Statutory Authority"). After the briefs were filed, the trial court ruled that: plaintiffs claims against CCI sounded exclusively in premises liability; CCI could not be held liable under the "common work area" doctrine, and; while neither OSHA[3]nor MIOSHA regulations impose legal duties on defendants for purposes of negligence, evidence of alleged OSHA or MIOSHA violations would be admissible at trial and that plaintiff was entitled to M Civ JI 12.05. However, the trial court also invited CCIs trial counsel to submit further briefing on the OSHA/MIOSHA issue if he could identify any binding caselaw contrary to the trial court's ruling. CCI subsequently did so, filing a motion for reconsideration under MCR 2.119(F)(3), which the trial court granted.

Thereafter, this case proceeded to a jury trial. Due to the court's pre-trial rulings, the jury received only a special-verdict form, which focused on CCIs potential liability under a premises-liability theory and CCIs various defenses, including contributory negligence and nonparty fault. The jury found that CCI was not "the possessor" of the subject property on the date of plaintiff s accident. Consistent with that verdict, the trial court subsequently entered the no-cause judgment that plaintiff appeals here.

II. ANALYSIS
A. NATURE OF PLAINTIFF'S CLAIMS

Plaintiff first argues on appeal that the trial court erred by holding that his claims regarding CCI 's failure to install a handrail on the property's basement staircase sounded exclusively in premises liability, not also in ordinary negligence. We disagree.

"Whether one party owes a duty to another is a question of law reviewed de novo," Brown v. Brown, 478 Mich. 545, 552; 739 N.W.2d 313 (2007), as is the question of whether a claim sounds in ordinary negligence, Estate of Swanzy v. Kryshak, ___Mich App___, ___;___N.W.2d___ (2021) (Docket No. 351649); slip op at 3, lv pending. The "traditional elements of a negligence action" are "(1) duty, (2) breach, (3) causation, and (4) damages[.]" Hannay v. Dep't of Transp, 497 Mich. 45, 63; 860 N.W.2d 67 (2014) (quotation marks and citation omitted). To prevail on a claim in the context of premises liability, a plaintiff must satisfy those same essential elements. See, e.g., Mouzon v. Achievable Visions, 308 Mich.App. 415, 418; 864 N.W.2d 606 (2014). In the absence of any material factual disputes, it is a question of law for the court to decide whether a legal duty exists. Braun v. York Props, Inc, 230 Mich.App. 138, 141; 583 N.W.2d 503 (1998) ("Generally, the existence of a duty is a question of law for the court to decide, but where certain factual circumstances give rise to a duty, and there are disputed facts, a jury must determine whether those factual circumstances exist.").

In support of his instant argument, plaintiff relies heavily on Johnson v. A & M Custom Built Homes of West Bloomfield, LPC, 261 Mich.App. 719, 722-723; 683 N.W.2d 229 (2004). In Johnson, 261 Mich.App. at 720, the plaintiff employee of a subcontractor "was permanently incapacitated after falling from a roof on a construction job" when "a toe board installed by another subcontractor, Olewnick, dislodged and failed to stop" the plaintiff. Recognizing that the plaintiffs claim against Olewnick regarded alleged negligence in installing the toe board—not negligence in failing to install one—this Court held that the plaintiffs claim sounded in "active" negligence. Id. at 722-723. Thus, this Court held that the claim was actionable under an ordinary negligence theory, reasoning as follows:

Even if [Olewnick] 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 [the plaintiff] from falling, [Olewnick's] common-law duty remained intact: "[a]s between two independent contractors who work on the same premises, either at the same time or one following the other, each owes to the employees of the other the same duty of exercising ordinary care as they owe to the public generally." 65A CJS § 534 p. 291. Thus, where a subcontractor actually performs an act, it has the duty to perform the act in a nonnegligent manner. [Johnson, 261 Mich.App. at 723 (footnote omitted; first three alterations added).]

In contrast, plaintiffs instant argument regards CCI's alleged failure to install a handrail. In other words, it involves "passive" negligence which legally distinguishable from the "active" negligence addressed in Johnson.

This state's jurisprudence recognizes a distinction between "passive" and "active" forms of negligence. See Chelik v. Capitol Transp, LLC, 313 Mich.App. 83, 91; 880 N.W.2d 350 (2015). The passive form, "nonfeasance, . . . is passive inaction or the failure to actively protect others from harm," while the active form, "misfeasance, . . . is active misconduct causing personal injury." Id. "The common law has been slow in recognizing liability for nonfeasance because the courts are reluctant to force persons to help one another and because such conduct does not create a new risk of harm to a potential plaintiff." Williams v. Cunningham Drug Stores, Inc, 429 Mich. 495, 498; 418 N.W.2d 381 (1988). "Thus, as a general rule, there is no duty that obligates one person to aid or protect another." Id. at 498-499.

An exception to that general rule is recognized when a "special relationship" between the parties justifies imposing a duty on the defendant to act. Id. at 499. "The rationale behind imposing a duty to protect in these special relationships is based on control. In each situation one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself." Id. "The duty to protect is imposed upon the person in control because he is best able to provide a place of safety." Id. Because claims sounding in premises liability regard nonfeasance—i.e., the failure of a premises possessor to take the necessary steps "to keep the premises within [its] control reasonably safe," Bailey v. Schaaf 494 Mich. 595, 604-605; 835 N.W.2d 413 (2013)—such claims rely on the "special relationship" between premises possessors and those present on their land, see, e.g., id.; Williams, 429 Mich. at 499-500.[4]

Given that plaintiffs claim against CCI concerned nonfeasance with regard to dangerous conditions on the land, we cannot conclude that the trial court erred by holding that the claim sounded exclusively in premises liability. "Courts are not bound by the labels that parties attach to their claims. Indeed, it is well settled that the gravamen of an action is determined by reading the complaint as a whole, and by looking beyond mere procedural labels to determine the exact nature of the claim." Buhalis v. Trinity Continuing Care Servs, 296 Mich.App. 685, 691-692; ...

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