Hottmann v. Hottmann

• Decision Date: 24 October 1997
• Docket Number: Docket No. 190028
• Citation: 572 N.W.2d 259,226 Mich.App. 171
• Parties: , 1998 O.S.H.D. (CCH) P 31,565 Randall HOTTMANN and Cynthia Hottmann, Plaintiffs-Appellants, v. Richard Leroy HOTTMANN and Deborah Joy Hottmann, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 259

572 N.W.2d 259

226 Mich.App. 171, 1998 O.S.H.D. (CCH) P 31,565

Randall HOTTMANN and Cynthia Hottmann, Plaintiffs-Appellants, v. Richard Leroy HOTTMANN and Deborah Joy Hottmann, Defendants-Appellees.

Docket No. 190028.

Court of Appeals of Michigan.

Submitted April 9, 1997, at Detroit.

Decided Oct. 24, 1997, at 9:25 a.m.

Released for Publication Jan. 22, 1998.

David D. Kohl, Novi, for Plaintiffs-Appellants.

Orlans & Sherbow, P.C. by Linda M. Orlans, Troy, for Defendants-Appellees.

Before SAWYER, P.J., and MURPHY and MARK J. CAVANAGH, JJ.

MARK J. CAVANAGH, Judge.

Plaintiffs Randall and Cynthia Hottmann appeal as of right the trial court order granting defendants Richard and Deborah Hottmann's motion for summary disposition pursuant to MCR 2.116(C)(10) in this premises liability action. We affirm in part, reverse in part, and remand for further proceedings.

In the autumn of 1993, defendants were remodeling their Oxford home. On November 21, 1993, Richard Hottmann (hereafter defendant) enlisted the help of his brothers, Randall Hottmann (hereafter plaintiff) and Robert Hottmann, in putting a new roof on the house and garage. In a deposition, plaintiff testified that he was not paid for his services and did not expect anything in return for his assistance. Plaintiff explained that family members regularly helped one another with similar projects, and defendant previously had contributed to work plaintiff had done on his own home.

The new roof on defendant's house had a twelve-by-twelve pitch, that is, it was set at a forty-five-degree angle. Because of the unusually steep roof pitch, plaintiff proposed that they use roof jacks to build a temporary walkway to stand on while working. However, after some discussion, it was decided that they would not use the roof jacks because they did not have enough. ¹ Instead, defendant nailed two-by-four boards to the plywood roofing to provide a foothold for working on the roof. While walking along one of the two-by-four boards, plaintiff fell and broke his arm.

On December 19, 1994, plaintiff and his wife filed their complaint against defendant and his wife. Plaintiff alleged that he was an invitee at the time he was working on the roof, and that defendant breached the duty of care owed to invitees by failing to maintain the premises in a reasonably safe condition. Plaintiff further alleged that defendant negligently allowed him to work on the roof without following the safety precautions required by the Michigan Occupational Safety and Health Act (MIOSHA), M.C.L. § 408.1001 et seq.; M.S.A. § 17.50(1) et seq.

Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). On October 23, 1995, the trial court held that the danger of falling off the roof was open and obvious and therefore defendant could not be found liable for negligence under Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 485 N.W.2d 676 (1992). The trial court also found that plaintiff was not an employee at the time the accident occurred and therefore was not covered by the MIOSHA regulations. Accordingly, the trial court granted defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). The order incorporating this decision was entered the same day.

I

Plaintiff first argues that the trial court erred in granting defendant's motion for summary disposition on the basis that the danger was open and obvious. On appeal, an order granting or denying summary disposition is reviewed de novo. A motion for summary disposition may be granted pursuant to MCR 2.116(C)(10) when, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Giving the benefit of reasonable doubt to the nonmovant, the trial court must determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Plieth v. St. Raymond Church, 210 Mich.App. 568, 571, 534 N.W.2d 164 (1995).

A landowner's duty to a visitor depends on that visitor's status. Stanley v. Town Square Cooperative, 203 Mich.App. 143, 146, 512 N.W.2d 51 (1993). In the present case, because plaintiff was on defendant's premises for the purpose of performing services beneficial to defendant, he had the status of an invitee rather than a mere licensee. See id. at 147, 512 N.W.2d 51; Leveque v. Leveque, 41 Mich.App. 127, 130-131, 199 N.W.2d 675 (1972).

In Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185 (1995), the Supreme Court clarified the duty owed by a landowner to an invitee where a dangerous condition is open and obvious. The Court stated that, while a possessor of land may have no obligation to warn invitees of an open and obvious danger, he may still have a duty to protect invitees against foreseeably dangerous conditions. Id. at 610-611, 537 N.W.2d 185. The Court explained:

[T]he rule generated is that if the particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger. On the other hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is required to undertake reasonable precautions. The issue then becomes the standard of care and is for the jury to decide. [Id. at 611, 537 N.W.2d 185.]

In the present case, as both parties agree, the danger of falling off a steep roof is open and obvious. However, the risk of falling is not eliminated by awareness of the hazard. In this circumstance, the fact that the danger was open and obvious does not relieve defendant of the duty to take reasonable precautions to prevent such falls. ² See id.

A property owner is not required to make his entire premises "foolproof." Id. at 616-617, 537 N.W.2d 185; Spagnuolo v. Rudds # 2, Inc., 221 Mich.App. 358, 362, 561 N.W.2d 500 (1997). Nevertheless, a genuine issue of fact remains regarding whether defendant took reasonable care to prevent harm to plaintiff while they were working on the steep roof. While plaintiff may be comparatively negligent for going on the roof without utilizing whatever additional safety measures he considered appropriate, such negligence does not vitiate defendant's duty to take reasonable care for the safety of his invitees. Accordingly, the trial court erred in granting defendant's motion for summary disposition with regard to this issue.

II

Plaintiffs also contend that the trial court erred in ruling that the provisions of the MIOSHA were not admissible. In finding that the MIOSHA regulations were inapplicable, the trial court succinctly stated, "We have a brother helping [a] brother without pay and that does not come within the purview of the statute."

We review a trial court's decision concerning the admission of evidence for an abuse of discretion. Zeeland Farm Services, Inc. v. JBL Enterprises, Inc., 219 Mich.App. 190, 200, 555 N.W.2d 733 (1996). An abuse of discretion exists when the result is so palpably and grossly violative of fact and logic that it evidences perversity of will or the exercise of passion or bias rather than the exercise of discretion. Dacon v. Transue, 441 Mich. 315, 329, 490 N.W.2d 369 (1992).

The MIOSHA is remedial legislation that should be liberally construed to accomplish its statutory purpose. Barker Bros. Construction v. Bureau of Safety & Regulation, 212 Mich.App. 132, 138, 140, 536 N.W.2d 845 (1995). The broad objective of the MIOSHA is "to provide all employees with a work site free from recognized hazards." Id. at 139, 536 N.W.2d 845. The MIOSHA does not create new common-law or statutory rights, duties, or liabilities of employers and employees. M.C.L. § 408.1002(2); M.S.A. § 17.50(2)(2). However, this Court has held that violation of regulations promulgated pursuant to the MIOSHA may be considered evidence of comparative negligence. See Zalut v. Andersen & Associates, Inc., 186 Mich.App. 229, 235, 463 N.W.2d 236 (1990).

Plaintiff argues that the fact that defendant was not paying wages to plaintiff does not preclude the existence of an employment relationship that would make the MIOSHA regulations applicable. Plaintiff points out that § 2(1) of the MIOSHA states that the "act shall apply to all places of employment in the state, except in domestic employment and in mines...." See M.C.L. § 408.1002(1); M.S.A. § 17.50(2)(1).

What constitutes an employer and an employee under the MIOSHA is an issue of first impression. Under § 5 of the MIOSHA, " 'Employee' means a person permitted to work by an employer," and " 'Employer' means an individual or organization ... which employs 1 or more persons." M.C.L. § 408.1005(1), (2); M.S.A. § 17.50(5)(1), (2). Because the definitions of "employer" and "employee" provide little guidance in the determination whether an employment relationship exists, we look to the meaning of the word "employ" in the definition of "employer." The statute does not provide a definition of the word "employ." When, as in this case, a word is not defined in the statute, a court may consult dictionary definitions. Nat'l Center for Mfg. Sciences, Inc. v. Ann Arbor, 221 Mich.App. 541, 546, 563 N.W.2d 65 (1997). In Black's Law Dictionary (6th ed), "employ" is defined as "to hire." Black's further defines "hire" as "to arrange for the labor or services of another for a stipulated compensation."

We believe that linking the word "employ" with the payment of compensation to the employee is in accord with the common and approved usage of the word. See USAA Ins. Co. v. Houston General Ins. Co., 220 Mich.App. 386, 391, 559 N.W.2d 98 (1996). Moreover, previously this Court, relying on federal precedent interpreting the Occupational Safety and Health Act ³ to determine that an employer who...