Bosak v. Hutchinson

Decision Date22 October 1985
Docket NumberDocket Nos. 72467,72468 and 71366
Citation375 N.W.2d 333,422 Mich. 712
PartiesNicholas BOSAK and Nancy Bosak, Plaintiffs-Appellees and Cross-Appellants, v. Robert HUTCHINSON and the Hurley Corporation, a Michigan corporation, Defendants-Third-Party Plaintiffs-Appellees, and FORSYTHE DEVELOPMENT COMPANY, a Michigan corporation, Defendant, Third-Party Plaintiff-Appellant, v. CONCRETE COMPONENTS, INC., a Michigan corporation, Third-Party Defendant. Nicholas BOSAK and Nancy Bosak, Plaintiffs-Appellees and Cross-Appellants, v. Robert HUTCHINSON and the Hurley Corporation, a Michigan corporation, Defendants, Third-Party Plaintiffs-Appellees, and FORSYTHE DEVELOPMENT COMPANY, a Michigan corporation, jointly and severally, Defendant, Third-Party Plaintiff-Appellant, v. CONCRETE COMPONENTS, INC., a Michigan corporation, Third-Party Defendant- Appellee. Nicholas BOSAK and Nancy Bosak, Plaintiffs, v. Robert HUTCHINSON, Defendant, and the Hurley Corporation, a Michigan corporation, Defendant, Third-Party Plaintiff-Appellant, and the Forsythe Development Co., a Michigan corporation, Defendant, Third-Party Plaintiff, and Concrete Components, Inc., Third-Party Defendant-Appellee.
CourtMichigan Supreme Court

Zeff and Zeff and Materna by Michael T. Materna, Detroit, for plaintiffs-appellees and cross-appellants; Gromek, Bendure & Thomas by John A. Lydick, Detroit, of counsel.

Joselyn, Rowe, Jamieson, Grinnan, Hayes & Feldman, P.C. by William A. Joselyn, Detroit, for defendant, third-party plaintiff-appellant, Forsythe Development Co.

Dice, Sweeney, Sullivan Feikens, Hurbis & Foster, P.C. by Jack E. Vander Male and Jon Feikens, Kristine J. Galien, on brief, Detroit, for defendant, third-party plaintiff-appellant, The Hurley Corp.

Sommers, Schwartz, Silver & Schwartz, P.C. by Paul W. Hines, Southfield, for defendant-appellee, Concrete Components, Inc.

RILEY, Justice.

INTRODUCTION

This case involves three separate appeals resulting from a lawsuit brought by plaintiffs Nicholas and Nancy Bosak for personal injuries suffered by the former at a construction site accident. (Hereinafter, use of plaintiff in the singular will refer to Nicholas Bosak.)

The general contractor on the construction project was Forsythe Development Company (Forsythe). Concrete Components, Incorporated (CCI), plaintiff's employer, was a subcontractor on the project, having been hired to supply and install precast concrete slabs. CCI had rented from The Hurley Corporation (Hurley) a crane and operator to assist in the installation of the slabs. When the crane arrived at the site, it was not completely assembled. Plaintiff was injured on December 19, 1974, while the crane was being assembled, as the crane operator "boomed down," causing plaintiff's left hand to be pulled into a sheave through which a cable, on which his hand was resting, ran. Four fingers of plaintiff's left hand were severed.

Several issues are raised in this appeal, only six of which we need address:

Forsythe v. Bosak

(1) Did the Court of Appeals err in reversing the trial court's grant of the general contractor's motion for directed verdict on the inherently dangerous activity theory?

Forsythe v. Concrete Components, Inc.

(2) Assuming that the inherently dangerous theory of the general contractor's liability should have been submitted to the jury, should the general contractor's claim for common-law indemnity against plaintiff's employer have been allowed?

Bosak v. Hurley & Forsythe

(3) Is the jury's damage award so clearly and grossly inadequate as to shock the judicial conscience and warrant additur?

(4) Did the evidence support instructing the jury on plaintiff's comparative negligence?

(5) Was the jury's finding that plaintiff was thirty percent negligent against the great weight of the evidence?

(6) Did the trial court erroneously refuse to instruct the jury to consider inflation in calculating its award of future damages?

Hurley v. Concrete Components, Inc.

(7) Did the Court of Appeals err so as to require reversal in finding that the crane involved in plaintiff's accident was "nonoperational" and that, as a consequence, the indemnity agreement between the lessor and the lessee of the crane was unenforceable?

We reverse the decision of the Court of Appeals in two respects. First, we hold that the crane assembly operation was not an inherently dangerous activity (issue 1). That determination renders consideration of Forsythe's claim of indemnity against CCI (issue 2) unnecessary. Second, we remand this matter to the trial court to determine whether the crane was operational (issue 7). With respect to plaintiff's claims of error (issues 3 through 6), we affirm the decision of the Court of Appeals.

PROCEDURAL HISTORY

Plaintiff and his wife filed suit against Forsythe, Hurley and Robert Hutchinson, the crane operator. 1 Forsythe's liability was premised upon the dual theories that, as general contractor, it was actively negligent in directing that the crane be assembled under unsafe conditions and that it was responsible for the results of an inherently dangerous activity, i.e., the crane assembly. Hurley's liability was premised upon the respondeat superior theory that the negligence of its employee caused the accident. Forsythe and Hurley, in turn, filed third-party claims for indemnity against CCI.

Hurley's indemnity claim was based on its lease agreement with CCI, which provided, in part, that it would be indemnified for injuries resulting from the "operation of the crane."

Prior to trial, the trial court granted summary judgment dismissing Hurley's claim against CCI for indemnification for any claims for personal injury arising out of work performed by Hurley for CCI. CCI's motion for summary judgment on Forsythe's claim for common-law indemnification was granted at trial.

At the close of the evidence, Forsythe moved for a directed verdict as to its liability. The trial court granted the motion insofar as it applied to the inherently dangerous activity theory, but denied it with respect to the theory of direct negligence on Forsythe's part.

The jury returned a verdict finding that Hurley was negligent, that its negligence was a proximate cause of the accident, that Forsythe was not negligent, that plaintiff suffered $100,000 in damages, that he was thirty percent comparatively negligent, and that plaintiff Nancy Bosak was entitled to damages in the amount of $10,000. Judgments were entered for Nicholas Bosak in the amount of $70,000 and for Nancy Bosak in the amount of $7,000.

Plaintiffs filed a post-trial motion for judgment, notwithstanding the verdict, or in the alternative for a new trial or an order of additur. Plaintiffs argued, in part, that their theory of inherently dangerous activity on the part of Forsythe should have been submitted to the jury, that the damage award was inadequate, that the jury should not have been instructed on comparative negligence, and that its finding of plaintiff's negligence was against the great weight of the evidence. The motion was denied in all respects.

Plaintiffs appealed to the Court of Appeals, raising these same questions and also claiming error in the trial court's refusal to instruct on inflation. Forsythe and Hurley filed claims of appeal from the order granting CCI's motions for summary judgment.

The appeals were consolidated by the Court of Appeals. Initially, the Court affirmed the trial court's judgments in all respects, 2 not reaching, however, Forsythe's claim of error.

Plaintiffs filed an application for rehearing, seeking reconsideration of the inherently dangerous activity question. On August 19, 1983, the Court of Appeals vacated its earlier decision and remanded the case for a new trial on plaintiffs' inherently dangerous activity theory. 3 Further, the Court of Appeals affirmed the grant of CCI's motion for summary judgment on Forsythe's claim for common-law indemnification.

Subsequently, Forsythe, Hurley and plaintiffs applied to this Court for leave to appeal.

The facts will be detailed with the appropriate issues.

ISSUE I

Did the Court of Appeals err in reversing the trial court's grant of the general contractor's motion for directed verdict on the inherently dangerous activity theory.

A. FACTS:

Testimony established that the crane arrived at the worksite on the morning of December 19, 1974. Before it could be used, multiple sections of tubular steel had to be added to its base, and various cables had to be strung through the appropriate sheaves and attached to the ball.

The arrangements for assembly were the subject of dispute at trial and go to the heart of the law suit. Zolar Marus, CCI's field superintendent, recalled that Forsythe's on-site superintendent, Leonard Thompson, ordered the assembly to be done after regular working hours so that the assembly would not interfere with other work being done and the crane would be ready for the next day's work. Thompson, who at trial had no recollection of the conversation, testified that he would not have ordered the crane to be assembled after working hours and would not have objected to daytime assembly.

The crew which assisted crane operator Hutchinson consisted of three CCI employees: a "pusher" or foreman, Patrick Miller, and two ironworker apprentices, plaintiff and Keith Porter. Erection of the boom commenced sometime after 4:00 p.m. Testimony showed that the weather was cold and wet and the site was muddy and slushy. There was evidence that there may have been some street lighting from the expressway near the site, that there could have been some lighting coming from the adjacent buildings, and that a security guard had parked his vehicle in such a manner that the lights shone along the boom. The record further reveals that neither the crane operator nor the crew, except for Porter, were concerned about the lighting conditions.

The erection of the boom progressed during...

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