Butler v. Ramco-Gershenson, Inc., RAMCO-GERSHENSO

• Citation: 214 Mich.App. 521,542 N.W.2d 912
• Decision Date: 15 December 1995
• Docket Number: INC,RAMCO-GERSHENSO,Docket Nos. 149453,149454
• Parties: Joseph H. BUTLER, Constance M. Butler, and Constance M. Butler, as next friend of Jonathan C. Butler, Plaintiffs-Appellants, v., Defendant-Appellee, and PONTIAC MALL LIMITED PARTNERSHIP, Defendant/Third-Party Plaintiff-Appellee, v. WESTERN WATERPROOFING COMPANY, INC., Third-Party Defendant. Joseph H. BUTLER, Constance M. Butler, and Constance M. Butler, as next friend of Jonathan C. Butler, Plaintiffs-Appellants, v., Pontiac Mall Limited Partnership, and Wineman Investment Company, Defendants-Appellees, and Ehlert-Bryan, Inc., Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 912

542 N.W.2d 912

214 Mich.App. 521

Joseph H. BUTLER, Constance M. Butler, and Constance M.

Butler, as next friend of Jonathan C. Butler, Plaintiffs-Appellants, v. RAMCO-GERSHENSON, INC., Defendant-Appellee, and PONTIAC MALL LIMITED PARTNERSHIP, Defendant/Third-Party Plaintiff-Appellee, v. WESTERN WATERPROOFING COMPANY, INC., Third-Party Defendant.

Joseph H. BUTLER, Constance M. Butler, and Constance M.

Butler, as next friend of Jonathan C. Butler, Plaintiffs-Appellants, v. RAMCO-GERSHENSON, INC., Pontiac Mall Limited Partnership, and Wineman Investment Company, Defendants-Appellees, and Ehlert-Bryan, Inc., Defendant.

Docket Nos. 149453, 149454.

Court of Appeals of Michigan.

Submitted June 14, 1995, at Lansing.

Decided Dec. 15, 1995, at 9:00 a.m.

Released for Publication Feb. 7, 1996.

Still, Nemier, Tolari & Landry, P.C. by Craig L. Nemier and Michelle E. Mathieu, Farmington Hills, for plaintiffs.

Law Offices of Rice, Galin & Traurig by Edward Traurig, Southfield, for defendants.

Before SMOLENSKI, P.J., and HOOD and CALLAHAN, ^* JJ.

SMOLENSKI, Presiding Judge.

In these consolidated appeals, plaintiff Joseph H. Butler appeals as of right an order of summary disposition in favor of defendants Ramco-Gershenson, Inc., Pontiac Mall Limited Partnership, and Wineman Investment Company. ¹ We affirm in part and reverse in part.

Plaintiff was an employee of Western Waterproofing Company, Inc. (WWC), an independent contractor that entered into a contract with defendant Pontiac Mall for brick replacement work on the north elevation of Hudson's three-story department store at Summit Place Mall. The mall is owned by defendants Pontiac Mall and Wineman Investment and managed by defendant Ramco-Gershenson.

To perform the brick restoration work, a frame scaffolding was erected on Hudson's roof to rise above the top of the building's parapet wall. ² The parapet wall was capped with precast concrete coping block. Booms or outriggers were mounted on the frame scaffolding to suspend spider scaffolding on which WWC employees performed the brick restoration work. On May 9, 1988, plaintiff was standing on the spider scaffolding when two pieces of coping block fell and hit him. Plaintiff sued defendants, among others, for his injuries. The trial court subsequently granted defendants' motion for summary disposition. Plaintiff appeals as of right.

Plaintiff first argues that the trial court erred in granting summary disposition of his claim premised on a theory of inherently dangerous activity. We note that although defendants' motion for summary disposition was premised on MCR 2.116(C)(8) and (10), the trial court did not specify the ground for its grant of summary disposition of this claim. However, because both parties relied on matters outside the pleadings in their arguments in opposition to and in support of this claim, we review this issue pursuant to MCR 2.116(C)(10).

On appeal, a trial court's determination concerning a motion for summary disposition is reviewed de novo. A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual sufficiency of a claim. This Court must independently determine, giving the benefit of doubt to the nonmovant, whether the movant would have been entitled to judgment as a matter of law. Lytle v. Malady, 209 Mich.App. 179, 183-184, 530 N.W.2d 135 (1995).

"The inherently dangerous activity doctrine is an exception to the general rule that an employer of an independent contractor is not liable for the contractor's negligence or the negligence of his employees." Bosak v. Hutchinson, 422 Mich. 712, 724, 375 N.W.2d 333 (1985). This exception extends to employees of the contractor performing the dangerous work. Id. Thus, as stated in Bosak:

[A]n employer is liable for harm resulting from work "necessarily involving danger to others, unless great care is used" to prevent injury, Inglis [v. Millersburg Driving Ass'n, 169 Mich. 311, 331, 136 N.W. 443 (1912),] or where the work involves a "peculiar risk" or "special danger" which calls for "special" or "reasonable" precautions. 2 Restatement Torts, 2d, §§ 416, 427. It must be emphasized, however, that the risk or danger must be "recognizable in advance," i.e., at the time the contract is made, for the doctrine to be invoked. Thus, liability should not be imposed where a new risk is created in the performance of the work which was not reasonably contemplated at the time of the contract. [Id. at 727-728, 375 N.W.2d 333.]

After reviewing the record in this case, we conclude that unlike in Oberle v. Hawthorne Metal Products Co., 192 Mich.App. 265, 269, 480 N.W.2d 330 (1991), which plaintiff cited, plaintiff has failed to produce any evidence that the risk or danger, i.e., that the coping would fall, was contemplated when the parties entered into the original contract or the first addendum thereto. Rather, giving the benefit of doubt to plaintiff, the evidence indicates that defendants knew only that the coping had been exposed to water and that the brickwork had been damaged.

Thomas Olson, a WWC foreman, testified at his deposition that before attaching the outriggers he had inspected all of the coping visually and by attempting to pick up the coping, and that the coping was not loose. The original contract (dated March 25, 1988) concerned replacement only of "spalled,[ ³] shalling, loose and otherwise defective brick masonry" on lower areas of the wall. The March 31, 1988, "Scope of Work" memorandum from Louis Ciotti of WWC instructed WWC employees to take care in preventing brick masonry from dropping to the ground and injuring people or landscaping. This memo did not refer to coping falling from above onto employees working on the scaffolding.

Ciotti testified that after work had commenced on the lower wall pursuant to the original contract, problems in the upper wall were discovered, i.e., "rusted tie bars, the shelf angles down below and the bulges in the masonry wall where the brick had separated," and that these problems indicated that the upper portion of the wall was in "kind of a deteriorated state." Again, this evidence concerns only deterioration of the brickwork.

On April 22, 1988, the consulting engineers of Ehlert-Bryan, Inc., visited the building at defendant Ramco-Gershenson's request to review the brick restoration work. Although Ehlert-Bryan's April 26, 1988, letter to defendant Ramco-Gershenson concerning this visit recognizes that the coping was subject to water infiltration, it does not indicate that Ehlert-Bryan realized that the coping would be likely to fall. Rather, the letter discusses extending the life of the coping by applying silicone sealer.

The first addendum (dated May 5, 1988) to the original contract concerned only removal and replacement of "all brick veneer masonry between the coping and the existing steel shelf angle approximately 4 feet below the top of the wall." ⁴

A May 19, 1988, letter from Mark Michener, a roofing consultant from Soil and Materials Engineers, Inc. (SME), to Ruth McCarthy, general manager of Summit Place Mall, provided in part as follows:

On May 6, 1988, we visited the Summit Place Mall in Waterford Township, Michigan. The purpose of our visit was to determine rehabilitation strategies for the precast coping parapet detail at various locations of the Mall (see separate report). Mr. Louis Ciotti of Western Waterproofing was also present to provide input from his recent experience with the Hudson's masonry restoration.

First, although Michener's inspection occurred before plaintiff was injured, the letter transmitting the information discerned by Michener was not dated until after plaintiff was injured. Moreover, the remainder of this letter does not concern the coping, but rather concerns Michener's observations of splitting in the roof membrane and recommendations for protecting the roof. McCarthy explained at her deposition that in April and May of 1988

[t]he entire mall was being discussed with SME for a series of coping replacement possibilities because we were also reroofing areas of the entire--not the expanded mall, but the existing mall, were already reroofing section at a time the [sic] existing roofs of the existing mall, and coping was included in that and SME was involved in that. This had nothing to do at this point with the Hudson building.

Thus, Michener's May 19, 1988, letter and McCarthy's deposition testimony do not indicate that "rehabilitation strategies" were being considered for the coping because it was in danger of falling.

An accident investigation report by the Michigan Department of Labor, Bureau of Safety and Regulation, following plaintiff's injury indicates that the outrigger was resting on top of the coping and that when plaintiff "operated the spyder the outrigger shifted causing the coping whose foundation had deteriorated to fall down" and strike plaintiff. However, this report is not indicative of defendants' knowledge of the risk or danger that the coping would fall at the time the parties entered into the original contract or the first addendum.

Accordingly, we affirm the trial court's grant of summary disposition pursuant to MCR 2.116(C)(10) in favor of defendants with regard to plaintiff's claim of inherently dangerous activity.

Next, plaintiff argues that the trial court erred in granting summary disposition of his premises liability claim. In order to put our disposition of this issue in context, a brief review of the proceedings below is necessary.

In their brief in support of their motion for summary disposition below, defendants quoted the following relevant portion of plaintiff's April 2, 1990, first amended complaint:

5. That during said employment Plaintiff was caused to suffer injury and damage, as a result of the wrongful acts of Defendants.

6. That the wrongful acts of the Defendants include but are not necessarily limited to:

a. retaining control of said project and failing to enforce...