Johnson v. Bundy

• Citation: 342 N.W.2d 567,129 Mich.App. 393
• Decision Date: 16 December 1984
• Docket Number: Docket No. 58384
• Parties: Denver JOHNSON and Edna Johnson, Plaintiffs, v. Ralph BUNDY, Defendant-Third Party Plaintiff-Appellant, and Arlo Hammond, Defendant-Third Party Defendant-Appellee. 129 Mich.App. 393, 342 N.W.2d 567
• Court: Court of Appeal of Michigan — District of US

Page 567

342 N.W.2d 567

Denver JOHNSON and Edna Johnson, Plaintiffs, v. Ralph BUNDY, Defendant-Third Party Plaintiff-Appellant and Arlo Hammond, Defendant-Third Party Defendant-Appellee.

Docket No. 58384.

129 Mich.App. 393, 342 N.W.2d 567

Court of Appeals of Michigan.

Submitted July 20, 1983.

Decided Oct. 10, 1983.

Released for Publication Dec. 15, 1983.

Rehearing Denied Dec. 16, 1984.

[129 MICHAPP 394] Lawrence W. Rattner, Detroit, for defendant-third party plaintiff-appellant.

Stanton, Bullen, Nelson, Moilanen & Klaasen, P.C. by Charles A. Nelson, Jackson, for defendant-third party defendant-appellee.

Before BEASLEY, P.J., and ALLEN and DENEWETH, ^* JJ.

[129 MICHAPP 395] BEASLEY, Judge.

On February 23, 1974, plaintiff, Denver Johnson, who was installing drywall as a subcontractor of Ralph Bundy, the general contractor, at a home under construction on Arlo Hammond's premises, allegedly sustained injuries when he fell into a deep opening or trapdoor. On May 28, 1975, plaintiff ¹ filed a negligence action against Bundy and Hammond, alleging that both parties were negligent in (1) maintaining a dangerous condition, (2) failing to provide sufficient lighting, and (3) failing to warn of the dangerous condition. Additionally, plaintiff claimed that Hammond was negligent in failing to hire a careful independent contractor. ²

On November 7, 1980, the homeowner, defendant Hammond, filed a motion for summary judgment under GCR 1963, 117.2(3), asserting that he could not be liable for plaintiff's injuries, since the contractor, defendant Bundy, had total control over the premises and the construction contract. After receiving briefs and hearing oral arguments, the trial court, in a written opinion, granted a partial summary judgment in favor of Hammond, holding that the record demonstrated that Hammond, as the homeowner, did not retain any control over the construction of the home:

"Thus, it is clear that the contractor was solely responsible for providing the drywall insulation in the home under construction. How the contractor chose to complete his end of the agreement in drywalling the home was the contractor's decision and the record (depositions, pleadings, etc.) is barren of any proof of [129 MICHAPP 396] control by the homeowner over the contractor in this respect.

"The Plaintiffs never saw the homeowner on the premises and dealt only with the contractor Bundy. Minor changes accomplished in the course of this construction came when Hammond spoke to his contractor and the record is barren of any contacts involving direction or control by the homeowner to any of the contractor's employees or subcontractors.

"The record is barren of that degree of control by the homeowner over the contractor relative to changes set forth in Funk v. General Motors, supra [392 Mich. 91; 220 N.W.2d 641 (1974) ].

"Funk v. General Motors, supra, implicitly requires knowledge by the owner of the unsafe condition in order that liability for injury be imposed upon him.

"At first blush, it would appear that the homeowner possessed a degree of control in the home's construction due to the homeowner's retention of certain portions of the finished work for himself. However, such finished work had no bearing upon the Plaintiff being on the premises nor causative relationship to the Plaintiff's fall and injuries. The contractor here was solely responsible for the construction of the home and drywalling. The few minor changes made, or additional work performed by the contractor for the homeowner during the course of construction were minor in nature and did not rise to the legal level of control by the homeowner over the contractor. On the contrary, they disclose that the homeowner paid extra for the contractor to perform these items and such performance was solely the function and responsibility of the contractor. Such insignificant minor additions to the home had no causal relationship or effect on the covering or lack of covering over the hole in the floor, which was clearly the responsibility of the contractor in erecting the frame construction and flooring."

The effect of the trial court's opinion was to absolve Hammond on all of plaintiff's claims except for the one relating to the allegedly negligent [129 MICHAPP 397] hiring of an independent contractor. Plaintiff filed an application for delayed appeal with this Court, which was "denied for lack of merit in the grounds presented" on December 10, 1982. ³

After the trial court's grant of partial summary judgment in favor of the homeowner, Hammond, defendant Bundy filed a third-party complaint for indemnification or contribution against Hammond, essentially alleging that the homeowner maintained control over the area containing the hole in which plaintiff fell. We quote from the following pertinent paragraphs of Bundy's third-party complaint:

"5. That Hammond and Bundy had entered into an agreement providing that Bundy provide certain building services in the construction of the Hammond home. Those services do not include, specifically, inter alia, the building services of plumbing, wiring, heating and finish work. Accordingly, Hammond worked side by side with Bundy in the construction of said house. He supplied all of the materials required for the completion of the plumbing, heating and electrical systems within the home. Hammond completed the heating system without any assistance from Bundy and did the major share of the electrical and plumbing work required in the construction of said home.

"6. That during the course of the construction of the home, and at all times mentioned in said complaint, specifically during the Winter of 1974, Hammond worked in a basement area which was accessible through two entrances, to-wit: a door-wall and the aforementioned hole. In an effort to retain heat within the basement area, Hammond directed that a covering be fashioned for the hole and, in order to obtain a more perfect seal of the area, directed that cardboard or other material be placed over the entrance, as well. The [129 MICHAPP 398] hole was maintained in this fashion by Hammond and others at his direction and for his purposes. Others, including Bundy, seek [sic ] entrance to the basement area, occasionally used this form of entry. Bundy, however, was not present on the subject premises on the date of the alleged injury to plaintiff.

"7. That if plaintiff proves that said premises was maintained in a careless and negligent manner then, in that event, it is alleged by Bundy that said condition is due entirely to the negligent conduct of Hammond which would include but not be limited to the failure by Hammond to give warning to others of the existence of an entryway in an unsafe condition, failure to provide sufficient lighting at the time of the alleged incident, failure to take precautions when it was known, or should have been known, that precautions should have been taken to sufficiently cover the said hole so that plaintiff could not have fallen into said hole and sustained the injury alleged in his complaint. Further, Hammond would be guilty of failing to give warning of the presence of the hole in its unsafe condition at the time of the incident alleged."

On June 14, 1982, Hammond filed a motion for summary judgment against the third-party plaintiff, Bundy, asserting that Bundy did not state a cause of action in contribution or indemnification. In granting Hammond's motion, the trial court held that (1) as a matter of law, Bundy was not entitled to indemnification, since the primary plaintiff alleged in his complaint that Bundy was actively, rather than passively, negligent and (2) the partial summary judgment entered in Hammond's favor against plaintiff, which in effect adjudicated the issue of Hammond's active negligence, precluded Bundy from seeking contribution from Hammond. Defendant, third-party plaintiff Bundy appeals as of right from the grant of summary judgment.

In regard to Bundy's indemnification claim [129 MICHAPP 399] against Hammond, the general rule is that indemnity is available only if the party seeking it is not actively negligent. ⁴ In ascertaining this, the court examines the primary plaintiff's complaint; if that complaint alleges active negligence, the defendant, third-party plaintiff is not entitled to either common law indemnification or implied contractual indemnification. ⁵ An examination of the complaint of plaintiff, Denver Johnson, reveals that his claims against Bundy clearly are based on active negligence as opposed to derivative liability. Consequently, the trial court correctly held that Bundy failed to state a cause of action for indemnification against Hammond.

A more difficult issue arises regarding the trial court's grant of summary judgment on the contribution claim. Essentially, the third-party plaintiff, Bundy, pleaded that he was entitled to contribution from Hammond, in the event that he were adjudged negligent, since Hammond's allegedly actual negligence in maintaining the construction site rendered him a joint tortfeasor. We note that in its grant of partial summary judgment to Hammond on the primary plaintiff's complaint the trial court, among other things, granted summary judgment on the following:

"11. That the defendant ARLO HAMMOND was then [129 MICHAPP 400] and there guilty of one or more of the following negligent acts and/or omission:

"(a) failing to give plaintiff any warning of the existence of a deep hole, opening or open stairwell in said house;

"(b) failing to keep said hole, opening or open stairwell covered or guarded so as to prevent plaintiff, or others lawfully on said premises, from falling into same;

"(c) failing to provide sufficient lighting to enable plaintiff, or other persons lawfully upon said premises, to see said hole, opening or open stairwell;

"(d) permitting a deep hole or opening to be and remain uncovered and unguarded in said house;"

The general rule of contribution is that a...