Funk v. General Motors Corp., No. 10

• Court: Supreme Court of Michigan
• Writing for the Court: Before the Entire Bench except for FITZGERALD; LEVIN; T. M. KAVANAGH; COLEMAN
• Citation: 220 N.W.2d 641,392 Mich. 91
• Docket Number: No. 10
• Decision Date: 02 August 1974
• Parties: Ellis FUNK, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION and Darin and Armstrong, Defendants-Appellees.

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220 N.W.2d 641 392 Mich. 91 Ellis FUNK, Plaintiff-Appellant,
v.
GENERAL MOTORS CORPORATION and Darin and Armstrong,
Defendants-Appellees. No. 10. Supreme Court of Michigan. Aug. 2, 1974.

[392 Mich. 99]

Page 643

Harry M. Philo, Detroit, for appellant.

Plunkett, Cooney, Rutt & Peacock by Jeannette A. Paskin, Detroit, for defendant-appellee General Motors Corp.; Ross L. Malone, Gen. Counsel, Thomas W. Watkins, Detroit, of counsel.

Gault, Davison & Bowers by Matthew Davison, Jr., Flint, for defendant-appellee Darin and Armstrong.

Before the Entire Bench except for FITZGERALD, J.

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LEVIN, Justice.

Ellis Funk, a journeyman plumber, was seriously injured on a plant construction job. He recovered workmen's compensation benefits from his employer, Ben Agree Company, a plumbing subcontractor.

In this action, a jury returned a verdict for Funk against the general contractor, Darin and Armstrong, and the owner of the plant, General Motors Corporation, whom Funk contends are liable as third-party tortfeasors for his injuries.

The Court of Appeals granted the defendants a judgment notwithstanding the verdict holding that Funk had himself created the dangerous condition which was the immediate cause of his injury. Funk v. General Motors Corp., 37 Mich.App. 482, 194 N.W.2d 916 (1972).

Funk had hung 6-inch piping from steel beams of the superstructure of a clear-span addition to a [392 Mich. 100] General Motors plant. He was then ordered to move approximately 600 feet of the piping.

To move the piping, Funk climbed onto the beams just as he had when they were initially hung. From this position he hammered the hooks holding the piping. Because of roof slabs which by then had been added, he was unable to reach some of the hooks and went onto the roof. He removed some slabs and was injured when he lost his balance and fell more than 30 feet to the ground.

The immediate cause of the accident was the manner in which Funk chose to complete the assigned task. By removing the roof slabs, he opened a hole in the roof and then slipped and fell through the opening. This case, says General Motors, 'is a classic example of the man who, in a sense, dug a hole and regrettably fell into it.'

Funk charges negligence in the defendants' failure to implement reasonable safety precautions for men working over 30 feet above the ground. He contends that General Motors and Darin and Armstrong exposed him to avoidable injury by allowing subcontractors to order the men to work at dangerous heights without any protection from falls in a job environment in which laborers were expected to complete their assigned tasks without regard to the absence of safety equipment guarding against injury in the event of a mishap.

The defendants counter that owners and general contractors are not subject to liability for the negligence of an independent contractor (Funk's employer, Ben Agree), and since Funk fell from the roof--rather than from the beams--the absence of safety equipment at the beams was not the cause in fact of his injury.

We conclude that while ordinarily the owner of a building under construction is not responsible to [392 Mich. 101] construction workers for job safety, in this case General Motors could properly be found to have sufficiently exercised a retained control subjecting it to liability for the failure to implement reasonable safety precautions.

The scope of a general contractor's responsibility will often depend on the nature of the risk and of the precaution or safeguard claimed to have been omitted. In this case it was proper to find Darin and Armstrong responsible for the safety omissions which gave rise to Funk's injury.

We reverse the Court of Appeals and affirm the verdict against Darin and Armstrong, but, because of instructional error, remand for a new trial as to General Motors.

I

Ordinarily a land owner is not responsible for injuries caused by a carefully selected contractor to whom he has delegated the task of erecting a structure. Most every rule has its exceptions. This

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rule is distinguished by the variety of its exceptions. ¹

An owner is responsible if he does not truly delegate--if he retains 'control' of the work--or if, by rule of law or statute, the duty to guard against the risk is made 'nondelegable.'

Inevitably it becomes a matter of judgment, case by case, where to draw the line between so-called 'delegable' and 'nondelegable' tasks and duties. In a given case, the policy question facing a court (the law of torts is largely judge-made) is whether on the facts presented the public interest warrants [392 Mich. 102] imposition upon a person who has delegated a task the duty to guard against risks implicit in the performance of the task. ²

The immediate employer of a construction worker (Ben Agree, in this instance) is immediately responsible for job safety. ³

The question now presented is whether, in the circumstances of this case, the immediate employer having conspicuously failed to provide any safety equipment, this general contractor and this owner, fully knowledgeable of the employer's dereliction, had the responsibility either to require the employer to implement a meaningful safety program or to themselves supply the obviously necessary safety equipment.

II

Mishaps and falls are likely occurrences in the course of a construction project. To completely avoid their occurrence is an almost impossible task. However, relatively safe working conditions [392 Mich. 103] may still be provided by implementing reasonable safety measures to prevent mishaps from causing aggravated injuries such as those suffered by Funk. Funk's injuries probably would have been kept to a minimum or avoided altogether if there had been provided either suspending nets, scaffolding, bucket cranes, safety belts or harnesses.

The plumbing subcontractor's failure to provide safety equipment for the men working along the steel did not represent just an occasional lapse. The steel frame was a common work area of many trades. Iron workers who 'walked (the) beams,' and pipe fitters and electricians, although 'they were able to gain handholds,' were exposed to similar risks. Throughout the especially precarious winter months, when snow and ice made conditions even more hazardous, and subsequently closer in time to Funk's injury, it was obvious to even the most casual observer that the men in the steel were without safety harnesses or belts and there was no safety net under the men. ⁴

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Arthur Collins, pursuant to his duties as architect-engineer superintendent for General Motors' Argonault Realty Division, was constantly on the construction site and observed numerous tradesmen working on the beams with 'no nets or safety lines.' ⁵ Similarly, John McCarthy, Darin and Armstrong's project superintendent, during his repeated 'tours throughout the day' of the job site, [392 Mich. 104] frequently observed men working in the beams, but never saw any 'safety belts or safety nets.'

The policy behind the law of torts is more than compensation of victims. It seeks also to encourage implementation of reasonable safeguards against risks of injury.

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.

'(A)s a practical matter in many cases only the general contractor is in a position to coordinate work or provide expensive safety features that protect employees of many or all of the subcontractors. * * * (I)t must be recognized that even if subcontractors and supervisory employees are aware of safety violations they often are unable to rectify the situation themselves and are in too poor an economic position to compel their superiors to do so.' Alber v. Owens, 66 Cal.2d 790, 59 Cal.Rptr. 117, 121--122, 427 P.2d 781, 785--786 (1967).

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.

This analysis would not ordinarily render a 'mere' owner liable. ⁶ In contrast with a general [392 Mich. 105] contractor, the owner typically is not a professional builder. Most owners visit the construction site only casually and are not knowledgeable concerning safety measures. See, E.g., Gonzales v. Robert J. Hiller Construction Co., 179 Cal.App.2d 522, 3 Cal.Rptr. 832, 835 (1960), where the owner was held not liable for the negligence of his contractor. He had been around the construction site daily to watch its progress and was as familiar with construction work as 'any layman is who has seen a number of them built, and who has invested in them.' Supervising job safety, providing safeguards, is not part of the business of the typical owner.

III

Although the contract designated General Motors as owner and Darin and Armstrong as general contractor, the actual working relationship evidenced exercise by General Motors of a retained control of the project. See Bissell v. Ford, 176 Mich. 64, 141 N.W. 860 (1913). The jury could properly hold General Motors liable for the failure to observe safety precautions and provide safeguards.

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General Motors exercised an unusually high degree of control over the construction project from its very inception. Its internal divisions drew up the building plans, wrote the contractual specifications, and acted as architectural supervisor. It directly hired several of the contractors, including Ben Agree, wrote the contracts agreed to by those contractors, and only later assigned the contracts to...