Hughes v. PMG Bldg., Inc.

• Decision Date: 12 December 1997
• Docket Number: Docket No. 199525
• Citation: 227 Mich.App. 1,574 N.W.2d 691
• Parties: Jonathan HUGHES, Plaintiff-Appellant, v. PMG BUILDING, INC., Defendant/Third-Party Plaintiff-Appellee, and State Carpentry, Inc., Defendant-Appellee, and Robert Wurm, d/b/a Bob's Siding, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 691

574 N.W.2d 691

227 Mich.App. 1

Jonathan HUGHES, Plaintiff-Appellant, v. PMG BUILDING, INC., Defendant/Third-Party Plaintiff-Appellee and State Carpentry, Inc., Defendant-Appellee and Robert Wurm, d/b/a Bob's Siding, Defendant.

Docket No. 199525.

Court of Appeals of Michigan.

Submitted Nov. 4, 1997, at Detroit.

Decided Dec. 12, 1997, at 9:20 a.m.

Released for Publication March 10, 1998.

Fregolle & Fregolle, P.C. by David E. Fregolle, Southfield, for Jonathan Hughes.

Carter & Gebauer by Martin G. Waldman and (Garan, Lucow, Miller, Seward & Becker by David M. Shafer, Southfield, of counsel), Detroit, for PMG Bulding, Inc.

Kohl, Secrest, Wardle, Lynch, Clark and Hampton by Janet Callahan Barnes, Farmington Hills, for State Carpentry, Inc.

Before RICHARD ALLEN GRIFFIN, P.J., and SAWYER and O'CONNELL, JJ.

O'CONNELL, Judge.

Plaintiff appeals as of right the circuit court order granting summary disposition in favor of defendants PMG Building, Inc., and State Carpentry, Inc. We affirm with respect to defendant State Carpentry and affirm in part and reverse in part with respect to defendant PMG Building.

This litigation stems from injuries suffered by plaintiff while he was performing roofing work as an independent contractor. Plaintiff and several other men were hired by the president of PMG Building to do roofing work on three new houses. The men arrived at the site on September 18, 1995, and immediately began work. The record indicates that the men were told that the site was ready for shingling and that they did not report to anyone or review any plans before beginning work. After finishing the garage on one house, plaintiff began to shingle a small porch overhang. The overhang extended two feet from the house and measured forty-two inches up to the peak on each side. It was attached to the front of the house with nails; the permanent support posts had not yet been installed because the concrete footings had not been poured. Plaintiff did not talk to anyone about how the overhang was supported, and did not pry back the siding to examine the support. Plaintiff believed that the overhang was sturdy enough to support his weight. As he stepped onto the overhang to attach a shingle, the overhang pulled away from the house and collapsed without warning. Plaintiff fell twenty feet and suffered severe and permanent injuries.

On October 20, 1995, plaintiff filed a complaint against PMG Building, State Carpentry, and Robert Wurm doing business as Bob's Siding. ¹ PMG Building owned the premises and was the general contractor on the site. Bryan Peruski, the president of PMG Building, drew up the building plans for the house on which plaintiff was working. State Carpentry, another independent contractor and a subcontractor for PMG Building, constructed the porch overhang. PMG Building and State Carpentry both filed motions for summary disposition. On August 23, 1996, upon review of the briefs submitted by the parties, the court entered an order granting summary disposition in favor of PMG Building and State Carpentry. Plaintiff appeals as of right.

The trial court apparently granted summary disposition pursuant to MCR 2.116(C)(10). ² A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. Marx v. Dep't of Commerce, 220 Mich.App. 66, 70, 558 N.W.2d 460 (1996). The court must consider the pleadings, affidavits, depositions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Id. This Court reviews summary disposition decisions de novo to determine whether the prevailing party was entitled to judgment as a matter of law. Id.

Plaintiff's first argument on appeal is that the trial court erred in granting summary disposition for PMG Building because plaintiff created genuine issues of fact regarding PMG Building's duty as a general contractor to provide a safe workplace. We disagree.

Generally, negligence is conduct involving an unreasonable risk of harm. Schultz v. Consumers Power Co., 443 Mich. 445, 449, 506 N.W.2d 175 (1993). The requisite elements of a negligence cause of action are that the defendant owed a legal duty to the plaintiff, that the defendant breached or violated the legal duty, that the plaintiff suffered damages, and that the breach was a proximate cause of the damages suffered. Id. Whether a defendant owes any duty to a plaintiff to avoid negligent conduct in a particular circumstance is a question of law for the court to determine. Schmidt v. Youngs, 215 Mich.App. 222, 224, 544 N.W.2d 743 (1996). In determining whether a duty exists, courts examine a wide variety of factors, including the relationship of the parties and the foreseeability and nature of the risk. Schultz, supra at 450, 506 N.W.2d 175.

PMG Building was both the landowner and the general contractor of the construction site where plaintiff was injured. Ordinarily, a general contractor is not liable for a subcontractor's negligence. Signs v. Detroit Edison Co., 93 Mich.App. 626, 632, 287 N.W.2d 292 (1979). However, a general contractor may be held liable if it failed to take "reasonable steps within its supervisory and coordinating authority" 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 v. General Motors Corp., 392 Mich. 91, 104, 220 N.W.2d 641 (1974), overruled in part on another ground Hardy v. Monsanto Enviro-Chem Systems, Inc., 414 Mich. 29, 323 N.W.2d 270 (1982). Thus, for there to be liability, there must be: (1) a general contractor with supervisory and coordinating authority over the job site, (2) a common work area shared by the employees of several subcontractors, and (3) a readily observable, avoidable danger in that work area (4) that creates a high risk to a significant number of workers. Groncki v. Detroit Edison Co., 453 Mich. 644, 662, 557 N.W.2d 289 (1996). It is not necessary that other subcontractors be working on the same site at the same time; the common work area rule merely requires that employees of two or more subcontractors eventually work in the area. Phillips v. Mazda Motor Mfg. (USA) Corp., 204 Mich.App. 401, 408, 516 N.W.2d 502 (1994); Erickson v. Pure Oil Corp., 72 Mich.App. 330, 337, 249 N.W.2d 411 (1976).

We find that plaintiff has failed to provide evidence suggesting that a general issue of material fact exists regarding whether plaintiff was injured while working in a "common work area." Plaintiff characterizes the alleged danger at issue in this case as "the danger of collapse of the porch overhang." Since other contractors performed work on the exterior of the house in the vicinity of the overhang, plaintiff argues that these workers were exposed to the same risk and that the overhang constituted a "common work area." In support of this argument, plaintiff points out that workers from State Carpentry assembled and attached the porch. Another subcontractor, Robert Wurm, installed the siding on the overhang. Yet another contractor would later be pouring the cement for the support stanchions. However, there is no evidence in the record that the employees of any other trade would work on top of the porch overhang. In all probability, after the carpenters built the overhang and attached it to the house, the only workers who would need to gain access to that limited area were the roofers. Thus, giving plaintiff the benefit of any reasonable inferences, we cannot say that other workers would be subject to the same hazard.

Even if plaintiff's argument is correct, however, and the employees of several subcontractors might eventually work in the area of the roof overhang, we do not believe that the overhang created a "readily observable, avoidable ... risk to a significant number of workmen." Funk, supra at 104, 220 N.W.2d 641. We find this case to be distinguishable from Funk, supra, and its progeny. Liability was imposed on the general contractor in Funk because Funk fell from a highly visible superstructure that was part of the common work area, was within the control of the defendant, and posed a risk to thousands of other workers. In Funk, the Court employed a risk analysis, finding that liability should not be imputed unless the dangers in the work area involve "a high degree of risk to a significant number of workers." Funk, supra at 104, 220 N.W.2d 641 (emphasis added). See Plummer v. Bechtel Constr. Co., 440 Mich. 646, 651, 489 N.W.2d 66 (1992) (the plaintiff fell from an interconnecting catwalk/platform system at a construction project involving 2,500 workers and a number of subcontractors); Erickson, supra at 337, 249 N.W.2d 411 (the plaintiff fell from a roof used by numerous subcontractors when he slipped on oiled metal roof sheets). Here, it is uncontroverted that plaintiff was one of only four men who would be working on top of the overhang. Accordingly, we conclude not only that plaintiff's injury did not arise in a "common work area," but that defendant did not breach its duty to guard against a danger posing a "high degree of risk to a significant number of workmen." Funk, supra. Defendant was entitled to judgment on this issue as a matter of law.

We believe that a contrary conclusion would swallow the "rule" espoused in Funk, supra. If the top of the overhang or even the overhang in its entirety were considered to be a "common work area" for purposes of subjecting the general contractor to liability for injuries incurred by employees of subcontractors, then virtually no place or object located on the construction premises could be considered not to be a common work area. We do not believe that this is the result the Supreme Court intended. This Court has previously suggested that the Court's use of the phrase "common work area" in Funk, supra, suggests that the Court...