Ghaffari v. Turner Const. Co.

• Decision Date: 12 July 2005
• Docket Number: Docket No. 124787. Calendar No. 10.,Docket No. 124786
• Citation: 699 N.W.2d 687,473 Mich. 16
• Parties: Louis GHAFFARI, Plaintiff-Appellant, v. TURNER CONSTRUCTION COMPANY, Defendant, Cross-Plaintiff, Third Party Plaintiff-Appellee, and Hoyt, Brum & Link, and Guideline Mechanical, Inc., Defendants, Cross-Defendants-Appellees, and R.W. Mead & Sons, Inc., and Conti Electric, Inc., Third-Party Defendants, and Acoustical Ceiling and Partition Company, Defendant, and The Edison Institute a/k/a Henry Ford Museum & Greenfield Village, Defendant, Third-Party Plaintiff. Louis Ghaffari, Plaintiff-Appellant. v. Turner Construction Company, Defendant, Cross-Plaintiff, Third-Party Plaintiff-Appellee, and Hoyt, Brum & Link, Defendant, Cross-Defendant-Appellee, and Guideline Mechanical, Inc., Defendant, Cross-Defendant, and Acoustical Ceiling & Partition Company, Defendant, and The Edison Institute a/k/a Henry Ford Museum & Greenfield Village, Defendant, Third-Party Plaintiff, and Conti Electric, Inc., Third-Party Defendant.
• Court: Michigan Supreme Court

699 N.W.2d 687

473 Mich. 16

Louis GHAFFARI, Plaintiff-Appellant, v. TURNER CONSTRUCTION COMPANY, Defendant, Cross-Plaintiff, Third Party Plaintiff-Appellee, and Hoyt, Brum & Link, and Guideline Mechanical, Inc., Defendants, Cross-Defendants-Appellees, and R.W. Mead & Sons, Inc., and Conti Electric, Inc., Third-Party Defendants, and Acoustical Ceiling and Partition Company, Defendant, and

The Edison Institute a/k/a Henry Ford Museum & Greenfield Village, Defendant, Third-Party Plaintiff.

Louis Ghaffari, Plaintiff-Appellant. v. Turner Construction Company, Defendant, Cross-Plaintiff, Third-Party Plaintiff-Appellee, and Hoyt, Brum & Link, Defendant, Cross-Defendant-Appellee, and Guideline Mechanical, Inc., Defendant, Cross-Defendant, and Acoustical Ceiling & Partition Company, Defendant, and

The Edison Institute a/k/a Henry Ford Museum & Greenfield Village, Defendant, Third-Party Plaintiff, and

Conti Electric, Inc., Third-Party Defendant.

Docket Nos. 124786, 124787. Calendar No. 10.

Supreme Court of Michigan.

Argued April 14, 2005.

Decided July 12, 2005.

Marshall Lasser, Southfield, MI, for the plaintiff.

Moffett & Dillon, P.C. (by Donald R. Dillon), Birmingham, MI, for Turner Construction Company.

Harvey Kruse, P.C. (by James E. Sukkar, Barry B. Sutton, and Julie Nichols), Troy, MI, for Hoyt, Brum & Link.

Plunkett & Cooney, P.C. (by Mary Massaron Ross and Kristen M. Tolan), Detroit, MI, for Michigan Defense Trial Counsel, amicus curiae.

Thomas M. Keranen & Associates, P.C. (by Thomas M. Keranen, Gary D. Quesada, and Peter J. Cavanaugh), Bloomfield Hills, MI, for Associated General Contractors of America Greater Detroit Chapter, Inc., and Michigan Chapter Associated General Contractors of America, Inc., amici curiae.

OPINION

MARKMAN, J.

The question presented is whether the "open and obvious" doctrine has any application in a claim brought under the "common work area" doctrine. We conclude that it does not.

I. FACTS AND PROCEDURAL HISTORY

This case arises out of a slip and fall incident that occurred during construction of an IMAX theater at Henry Ford Museum in Dearborn. The premises were owned by the Edison Institute, better known as the Henry Ford Museum and Greenfield Village (Edison). Edison signed a construction contract with defendant Turner Construction Company (Turner), whereby Turner agreed to act as the construction manager for the project. Pursuant to this contract, Turner then negotiated trade contractor agreements with subcontractors on behalf of Edison, and administered them as the construction manager. Plaintiff, an employee of electrical subcontractor Conti Electric, Inc., was injured on the construction site when he tripped on pipes left on the floor of a storage area that he alleged had served as a passageway. Plaintiff further alleged that the pipes were owned by one of two other subcontractors: either defendant Guideline Mechanical, Inc. (Guideline), the pipefitting subcontractor, or defendant Hoyt, Brum & Link (Hoyt), the plumbing subcontractor.

Plaintiff testified that he had rounded a corner and walked through an archway that, until recently, had been covered with plywood. Plaintiff claimed that he slipped on the pipes as he entered the storage area from behind gangboxes that stood in the walkway. He testified that other pipes closer to eye level distracted his vision as he rounded the gangboxes.

The trial court granted defendants' motion for summary disposition on the ground that the hazard was open and obvious, citing this Court's then-recent decision in Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 629 N.W.2d 384 (2001). The trial court also granted summary disposition to Guideline on the additional ground that no evidence was presented to indicate that the pipes in question belonged to Guideline. The Court of Appeals affirmed in an unpublished per curiam opinion, which was later published at defendants' request. Ghaffari v. Turner Constr. Co., 259 Mich.App. 608, 676 N.W.2d 259 (2003).

We granted leave to appeal and directed the parties to address whether the open and obvious doctrine has any application in a claim under the common work area doctrine described in Ormsby v. Capital Welding, Inc., 471 Mich. 45, 54, 684 N.W.2d 320 (2004), and, if so, how the open and obvious doctrine could be reconciled with Hardy v. Monsanto Enviro-Chem Systems, Inc., 414 Mich. 29, 323 N.W.2d 270 (1982), in which this Court concluded that the goal of safety in the workplace would be enhanced by the application of principles of comparative negligence. See Ghaffari v. Turner Constr. Co., 471 Mich. 915, 688 N.W.2d 511 (2004).

II. STANDARD OF REVIEW

This case requires that we consider whether the open and obvious doctrine is applicable in the construction setting. The applicability of a legal doctrine is a question of law that we review de novo. People v. Thousand, 465 Mich. 149, 156, 631 N.W.2d 694 (2001). We also review de novo a circuit court's grant of summary disposition. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999).

III. ANALYSIS

The question presented is whether a general contractor,¹ when confronted with potential liability for a job site injury suffered by the employee of a subcontractor, may avoid liability on the basis that the condition giving rise to the injury was open and obvious. In order to answer this question, we must first examine two relevant common-law doctrines: the common work area doctrine and the open and obvious doctrine.

A. The Common Work Area Doctrine

At common law, property owners and general contractors generally could not be held liable for the negligence of independent subcontractors and their employees. However, in Funk v. Gen. Motors Corp., 392 Mich. 91, 104, 220 N.W.2d 641 (1974), this Court departed from this traditional framework and set forth an exception to the general rule of nonliability in cases involving construction projects:

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. [Emphasis added.]

We also articulated several practical considerations that supported this exception:

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. [Id. (internal citation and quotation marks omitted).]

In Ormsby, supra at 54, 684 N.W.2d 320, we listed the elements of what had become known since Funk as the common work area doctrine:

That is, for a general contractor to be held liable under the "common work area doctrine," a plaintiff must show that (1) the defendant, either the property owner or general contractor, failed to take reasonable steps within its supervisory and coordinating authority (2) to guard against readily observable and avoidable dangers (3) that created a high degree of risk to a significant number of workmen (4) in a common work area. [Emphasis added.]

We made clear in Ormsby that only when this test is satisfied may a general contractor be held liable for the alleged negligence of the employees of independent subcontractors with respect to job site safety. Id. at 55-56, 684 N.W.2d 320. The failure to satisfy any one of these elements is fatal to a Funk claim. Id. at 59, 684 N.W.2d 320.

B. The Open and Obvious Doctrine

In general, a premises possessor must exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the land. Bertrand v. Alan Ford, Inc., 449 Mich. 606, 609, 537 N.W.2d 185 (1995). However, this duty does not generally require the removal of open and obvious dangers. In Lugo, supra at 516-517, 629 N.W.2d 384, we rearticulated the open and obvious doctrine:

[W]here the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee.

* * *

In sum, the general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers, but, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk. [Internal citations omitted; emphasis added.]

We also stated that the open and obvious doctrine should not be viewed as "some type of `exception' to the duty generally owed invitees," but rather viewed "as an integral part of the definition of that duty." Id. at 516, 629 N.W.2d 384.

C. Compatibility of the Two Doctrines

Defendants urge us to find that the two doctrines—the common work area doctrine and the open and obvious doctrine—are compatible and can be applied harmoniously. However, as noted above, for a general contractor to be held liable under the common work area doctrine, a plaintiff must show that the general contractor has failed "to guard against readily observable and avoidable dangers...." Ormsby, supra at 54, 684 N.W.2d 320. Yet, one could replace the phrase "readily...