Candelaria v. BC Gen. Contractors, Inc.

• Citation: 600 N.W.2d 348,236 Mich. App. 67
• Decision Date: 01 October 1999
• Docket Number: Docket No. 202421.
• Parties: Thomas CANDELARIA, III, as Personal Representative of the Estate of Thomas Candelaria, Jr., Deceased, Plaintiff-Appellee, v. B.C. GENERAL CONTRACTORS, INC., Defendant/Counterdefendant-Appellant, and Horizon Cablevision, Inc., Defendant/Counterplaintiff-Appellant,
• Court: Court of Appeal of Michigan — District of US

600 N.W.2d 348

236 Mich. App. 67

Thomas CANDELARIA, III, as Personal Representative of the Estate of Thomas Candelaria, Jr., Deceased, Plaintiff-Appellee, v. B.C. GENERAL CONTRACTORS, INC., Defendant/Counterdefendant-Appellant, and Horizon Cablevision, Inc., Defendant/Counterplaintiff-Appellant,

Docket No. 202421.

Court of Appeals of Michigan.

Submitted December 1, 1998, at Detroit.

Decided June 4, 1999, at 9:20 a.m.

Released for Publication October 1, 1999.

Butzel Long (by James E. Wynne and James J. Giszczak), Detroit, for the plaintiff.

Secrest, Wardle, Lynch, Hampton, Truex and Morley (by Janet C. Barnes and Roger F. Wardle), Farmington Hills, for the defendants.

Before: McDONALD, P.J., and JANSEN and TALBOT, JJ.

TALBOT, J.

Defendants B.C. General Contractors, Inc. (BC), and Horizon Cablevision, Inc., appeal as of right from a judgment for plaintiff Thomas Candelaria, III, as personal representative of the estate of Thomas Candelaria, Jr., deceased, entered after a jury trial. We reverse and remand.

I

Defendant Horizon, a company in the business of providing cable television service, hired defendant BC, as an independent contractor, to install cable television service in certain areas of Ingham County. BC, in turn, hired Bob Rego, also as an independent contractor, to perform a portion of the work involving aerial construction. Rego employed plaintiff's decedent, Thomas Candelaria, Jr. (hereafter Candelaria). Part of Rego's job involved laying cable wire across the surface of state trunk line M-106 in Ingham County. On the day of the accident, Rego's foreman and Candelaria were the only workers at the site. When the foreman needed more cable to work with, he asked Candelaria to release some slack from the reel. Instead of pulling slack from the reel by hand, which was the standard procedure, Candelaria turned the reel on its side and began pushing it like a wheelbarrow. Because the foreman was concerned that Candelaria's action might tighten the cable rather than create slack, he ran to the reel and flipped it back to its usual position. Just as the foreman turned the reel, a passing car snagged a portion of the cable that had become elevated from the surface of the highway. This caused the reel to jerk forward into Candelaria, killing him instantly.

Plaintiff filed a wrongful death action against defendants, alleging that their negligence caused Candelaria's death. At the close of the proofs, plaintiff's theory with respect to BC was that it could be held liable in negligence on the basis of its retention of control over the work performed by Rego. Plaintiff's theory with respect to Horizon was that it could be held liable in negligence pursuant to a nondelegable duty arising by virtue of the fact that it had obtained a permit issued by the Michigan Department of Transportation (MDOT). Defendants moved for directed verdicts and their motions were denied. The trial court granted plaintiff's motion for a directed verdict against Horizon with regard to the issue of its negligence. The jury found (1) that Horizon's negligence was a proximate cause of the accident, (2) that BC was negligent and that its negligence was a proximate cause of the accident, and (3) that Candelaria himself was negligent, that his negligence was a proximate cause of the accident, and that he was fifty percent at fault. The final judgment entered against defendants was in the amount of $248,248.48.

II

On appeal, BC argues that the trial court erred in denying its motion for a directed verdict. We agree. BC moved for a directed verdict on the ground that it did not retain and exercise sufficient control over Rego's work to be held liable for Candelaria's injury. The trial court reasoned that, although there was not a "great deal" of evidence of BC's control, there was enough to present the issue to the jury.

This Court reviews de novo a trial court's decision with regard to a directed verdict. Meagher v. Wayne State Univ., 222 Mich.App. 700, 708, 565 N.W.2d 401 (1997). When evaluating a motion for a directed verdict, a court must consider the evidence and all legitimate inferences arising from the evidence in a light most favorable to the nonmoving party. A directed verdict is appropriate only when no material factual question exists upon which reasonable minds could differ. Caldwell v. Fox, 394 Mich. 401, 407, 231 N.W.2d 46 (1975).

A

As a general rule, when an owner or general contractor hires an independent contractor to perform a job, the owner or general contractor may not be held liable in negligence to third parties or employees of the independent contractor. See Bosak v. Hutchinson, 422 Mich. 712, 724, 375 N.W.2d 333 (1985); Funk v. General Motors Corp., 392 Mich. 91, 101-102, 220 N.W.2d 641 (1974), overruled in part on another ground by Hardy v. Monsanto Enviro-Chem Systems, Inc., 414 Mich. 29, 323 N.W.2d 270 (1982); Samodai v. Chrysler Corp., 178 Mich.App. 252, 255, 443 N.W.2d 391 (1989); 2 Restatement Torts, 2d, § 409 & comments, pp. 370-371. Instead, the independent contractor is immediately responsible for job safety. Funk, supra at 102, 220 N.W.2d 641; Samodai, supra at 255, 443 N.W.2d 391. There are, however, certain circumstances under which an owner or general contractor may be held liable for either the independent contractor's negligence or for its own negligence. One commonly recognized exception to the general rule is the "doctrine of retained control." See, e.g., Funk, supra at 101-109, 220 N.W.2d 641; Plummer v. Bechtel Constr. Co., 440 Mich. 646, 648-673, 489 N.W.2d 66 (1992) (opinions of Levin, J., and Boyle, J.); Samhoun v. Greenfield Constr. Co., Inc., 163 Mich.App. 34, 45, 413 N.W.2d 723 (1987). Although the doctrine is often recognized, our review of the cases reveal some confusion accompanying its application.

The concept of "retained control" is pertinent to two distinct theories of liability: (1) the vicarious liability of an employer pursuant to the doctrine of respondeat superior, and (2) the direct liability of an owner or general contractor pursuant to the doctrine of retained control. In the former case, evidence of an employer's retained control is relevant to the issue whether there was in fact a contractee-contractor relationship. An independent contractor is defined as "`one who, carrying on an independent business, contracts to do work without being subject to the right of control by the employer as to the method of work but only as to the result to be accomplished.'" Kamalnath v. Mercy Memorial Hosp. Corp., 194 Mich.App. 543, 553, 487 N.W.2d 499 (1992) (citation omitted); cf. 1 Restatement Agency, 2d, § 2, p. 12. If the employer of a person or business ostensibly labeled an "independent contractor" retains control over the method of the work, there is in fact no contractee-contractor relationship, and the employer may be vicariously liable under the principles of master and servant. See, e.g., Brinker v. Koenig Coal & Supply Co., 312 Mich. 534, 539-540, 20 N.W.2d 301 (1945); Alar v. Mercy Memorial Hosp., 208 Mich.App. 518, 527, 529 N.W.2d 318 (1995); Jenkins v. Raleigh Trucking Services, Inc., 187 Mich.App. 424, 428-429, 468 N.W.2d 64 (1991); Janice v. Hondzinski, 176 Mich.App. 49, 53, 439 N.W.2d 276 (1989); see also 2 Restatement Torts, 2d,§ 414, comment a, p. 387.

In the latter case, the owner or general contractor's retention of supervisory control provides the basis for the imposition of an independent duty on the part of the owner or general contractor to exercise its retained control with reasonable care. The focus is not on the legal status of the relationship between the owner or general contractor and the independent contractor, but rather on the manner in which the owner or general contractor acts or fails to act in relation to the safety of the injured party. The "doctrine of retained control" refers to this second sort of retained-control liability. The seminal case in Michigan regarding the doctrine of retained control is Funk, supra, in which our Supreme Court reasoned that a landowner or general contractor could be "held responsible for its own negligence in failing to implement reasonable safety precautions," where its "retained and exercised" control over a project was sufficient to create a corresponding duty to implement such precautions.¹Funk, supra at 108, 220 N.W.2d 641 (emphasis added); see also Plummer, supra at 669, 489 N.W.2d 66 (Boyle, J.).

The doctrine of retained control applies only in those situations involving "common work areas." Plummer, supra at 666-668, (Levin, J.), 669, 489 N.W.2d 66 (Boyle, J.); see also Groncki v. Detroit Edison Co., 453 Mich. 644, 662, 557 N.W.2d 289 (1996) (Brickley, C.J.); Hughes v. PMG Building, Inc., 227 Mich.App. 1, 5-6, 574 N.W.2d 691 (1997); Samhoun, supra at 45-46, 413 N.W.2d 723; Erickson v. Pure Oil Corp., 72 Mich.App. 330, 336, 249 N.W.2d 411 (1976). This limitation is rooted in our Supreme Court's initial explanation of the doctrine's rationale:

Placing ultimate responsibility on the general contractor for job safety in common work areas will, from a practical, economic standpoint, render it more likely that the various subcontractors being supervised by the general contractor will implement or that the general contractor will himself implement the necessary precautions and provide the necessary safety equipment in those areas.

* * *

We regard it to be part of the business of a general contractor to assure that reasonable steps within its supervisory and coordinating authority are taken to guard against readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen. [Funk, supra at 104

, 220 N.W.2d 641 (emphasis added).]

In order to have a "common work area," there need not be multiple subcontractors working on the same site at the same time. All that is required is that the employees of two or more subcontractors eventually work in...