Drenkhahn v. Smith
| Decision Date | 17 September 1980 |
| Docket Number | Docket No. 44785 |
| Citation | 103 Mich.App. 278,303 N.W.2d 176 |
| Parties | Robert DRENKHAHN, administrator of the estate of Robert Drenkhahn, Jr., deceased, Plaintiff-Appellant, v. James E. SMITH, Gordon Neuens, and John Brodhagen, a/k/a Jack Brodhagen, Defendants-Appellees and Third Party Plaintiffs, v. BARRY EXCAVATING, INC., a Michigan Corporation, Third Party Defendant-Appellee. 103 Mich.App. 278, 303 N.W.2d 176 |
| Court | Court of Appeal of Michigan — District of US |
[103 MICHAPP 280] William L. Benefiel, Kalamazoo, for plaintiff-appellant.
Sally Zack Wheeler, Kalamazoo, for James Smith.
Sanford N. Lakin, Southfield, for Barry Excavating.
Before HOLBROOK, P. J., and T. M. BURNS and BORRADAILE, * JJ.
On February 5, 1975, plaintiff's decedent, employed by Barry Excavating, Inc., was killed in an excavation cave in during sewer construction work. In a suit against the City of Portage, the trial judge granted summary judgment because of governmental immunity. That judgment was sustained by this Court. Drenkhahn v. Portage (Docket No. 77-3232, decided June 22, 1978 (unreported)).
The instant suit was commenced against the defendants, all employees of the City of Portage, in their individual capacities, for their own negligence. Defendant Smith was the city engineer, and defendants Neuens and Brodhagen were inspectors in the engineering department.
[103 MICHAPP 281] On February 8, 1978, the employer of plaintiff's decedent was added as a third party defendant. On April 16, 1979, an order of summary judgment was entered, and on June 5, 1979, an order of dismissal of the third-party complaint was entered. On June 18, 1979, the trial court entered an amended order of summary judgment.
It is not apparent from the files and records on what basis the trial court entered summary judgment. The only affidavit was by defendants' attorney on information and belief, therefore the requirements of GCR 1963, 117.2(3) are not satisfied. Apparently, the motion was based on GCR 1963, 117.2(1), thus the plaintiff's complaint must be read in plaintiff's favor and, if the pleadings under any fact situation would justify the claim, the motion for summary judgment should have been denied. See Sullivan v. The Thomas Organization, P.C., 88 Mich.App. 77, 276 N.W.2d 522 (1979).
Defendants argue that because the City of Portage cannot be held liable, the theory of respondeat superior by inverse process would mean that an employee of the city also could not be liable. They also argue that the Federal Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq., and the Michigan Occupational Safety and Health Act, M.C.L. § 408.1001 et seq.; M.S.A. § 17.50(1) et seq., do not create any duties under which plaintiff can maintain an action.
Plaintiff argues that he never claimed any rights under either Federal or state occupational safety and health acts but rather that the claims were based on a common-law duty. He also argues that the acts required of defendants under the contract involved ministerial rather than discretionary acts, hence governmental immunity is not a defense for any negligent acts.
The trial court was correct in ruling that neither the Federal Occupational Safety and Health Act nor the Michigan Occupational Safety and Health Act apply to create any duties that benefit plaintiff in this case.
29 U.S.C. § 652(5) provides: "The term 'employer' means a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State."
It has been held that a general contractor is not responsible for acts of a subcontractor for purposes of OSHA. See Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (CA 5, 1975); Cochran v. International Harvester Co., 408 F.Supp. 598 (W.D. Ky., 1975).
While Michigan law is not as clear, since M.C.L. § 408.1005(2); M.S.A. § 17.50(5)(2) provides that an " '(e)mployer' means an individual or organization, including the state or a political subdivision, which employs 1 or more persons", a Federal case, Clarkson Construction Co. v. Occupational Safety & Health Review Comm., 531 F.2d 451 (CA 10, 1976), suggests that such acts have a broad remedial purpose of protecting a worker from industrial injury and the employer who controls the work environment may not be the same employer for wage or tort purposes.
It would appear that the breach of Federal and state occupational safety and health acts does not necessarily provide a private cause of action, but plaintiff does not allege either act created a private cause of action, hence this Court does not deal with that question.
Plaintiff specifically alleged that defendants [103 MICHAPP 283] breached a common-law duty to make sure the work was not done in a dangerous or hazardous manner, but the trial court failed to deal with that question.
Because we treat the motion in this case as a motion for summary judgment under GCR 1963, 117.2(1), if the pleadings state a legally valid claim and raise issues of the fact, the motion should not have granted. Blades v. Genesee County Drain Dist. No. 2, 375 Mich. 638, 135 N.W.2d 420 (1965). A pleaded claim which incorporates a valid legal theory cannot be summarily dismissed for failure to state a cause of action unless the pleadings on their face affirmatively show the existence of every fact necessary for a complete defense, Brooks v. Fields, 375 Mich. 667, 135 N.W.2d 346 (1965), or unless the pleadings disclose a fatal defect which could not be overcome by an opportunity to amend, Nuyen v. Slater, 372 Mich. 654, 127 N.W.2d 369 (1964). See discussion in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), 1979 Supp., Existence of Issues of Fact, p. 137.
In Lovitt v. Concord School Dist., 58 Mich.App. 593, 228 N.W.2d 479 (1975), this Court noted that the question of whether governmental immunity extended to an employee was one of first impression but found school athletic coaches could be liable on a common-law theory of liability, citing Pichette v. Manistique Public Schools, 50 Mich.App. 770, 776, 213 N.W.2d 784 (1973), where the issue did not have to be resolved, and Rush v. Pierson Contracting Co., 310 F.Supp. 1389 (E.D. Mich., 1970), where a Michigan State Highway Department foreman responsible for maintenance of an overpass was held accountable for his own acts of commission or omission, if said acts were in fact negligent.
[103 MICHAPP 284] Lovitt, supra, 58 Mich.App. 602, 228 N.W.2d 479, cites OAG 1961-1962, No. 4061, p. 419, 420 (May 28, 1962):
Bush v. Oscoda Area Schools, 405 Mich. 716, 275 N.W.2d 268 (1979), is not clear. The opinion by Justice Levin, concurred in by Justices Kavanagh and Fitzgerald, would find questions of fact as to employee liability. Justice Williams would find no immunity for a public employee if he engaged in ultra vires activities, referring to his opinions in McCann v. Michigan, 398 Mich. 65, 73-74, 247 N.W.2d 521 (1976), and Galli v. Kirkeby, 398 Mich. 527, 248 N.W.2d 149 (1976). Whether an act is ultra vires seems also to be a question of fact based upon the circumstances of a particular case.
Substantiating the argument of plaintiff as to the distinction between ministerial and discretionary acts is Antkiewicz v. Motorists Mutual Ins. Co., 91 Mich.App. 389, 397-398, 283 N.W.2d 749 (1979), vacated on other grounds 407 Mich. 936, 285 N.W.2d 659 (1979), where this Court said:
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Carroll v. Economic Development Corp. of Calhoun County, Docket No. 56606
...of a statute is a question of law. Having failed to make the proper allegations, summary judgment was proper. Drenkhahn v. Smith, 103 Mich.App. 278, 283, 303 N.W.2d 176 (1980); Demido v. Attorney General [Kelly], 100 Mich.App. 254, 256-259, 299 N.W.2d 43 Affirmed. ...