Kubisz v. Cadillac Gage Textron, Inc.

• Decision Date: 22 October 1999
• Docket Number: Docket No. 200326.
• Parties: John KUBISZ and Dorothy Kubisz, Plaintiffs-Appellees, v. CADILLAC GAGE TEXTRON, INC., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

601 N.W.2d 160

236 Mich. App. 629

John KUBISZ and Dorothy Kubisz, Plaintiffs-Appellees, v. CADILLAC GAGE TEXTRON, INC., Defendant-Appellant.

Docket No. 200326.

Court of Appeals of Michigan.

Submitted September 1, 1998, at Detroit.

Decided August 3, 1999, at 9:00 a.m.

Released for Publication October 22, 1999.

Chambers Steiner, P.C. (by Courtney E. Morgan, Jr.), Detroit, and Granzotto & Nicita, P.C. (by Angela J. Nicita), Detroit, for the plaintiffs.

Meganck, Cothorn & Stanczyk, P.C. (by John A. Cothorn, Suzanne C. Stanczyk, and Elizabeth L. Sokol), Detroit, for the defendant.

Before: HOLBROOK, JR., P.J., and MARKEY and WHITBECK, JJ.

PER CURIAM.

Defendant appeals as of right from a judgment for plaintiffs, following a jury trial, in this personal injury case. We affirm.¹

I. Background Facts

Plaintiff John Kubisz (hereinafter "plaintiff") was injured while employed by Omni-Tek, an independent contractor with which defendant had contracted to perform modifications and firearms upgrades on a prototype military vehicle. The vehicle was being changed from a light-armored amphibious personnel carrier to a light-armored amphibious tank. The modifications included the removal of twelve seats used to transport personnel, the addition of a firearms turret, and the replacement of the existing diesel fuel tank with a lighter diesel fuel tank made of aluminum. On May 7, 1991, the modified vehicle was tested to see how well it would float.² During the course of the day, the vehicle was driven into the water by plaintiff on three separate occasions. After the first two tests, changes were made to help stabilize the vehicle in the water. After the third test, as plaintiff was driving the vehicle back to the shop, the new fuel tank ruptured along a bottom seam. On May 8, 1991, as plaintiff was attempting to weld the fifteen-inch rupture, the tank exploded, causing severe burns to plaintiff's upper body, including his face, chest, hands and arms, and abdomen.

II. Defendant's Motions for Summary Disposition and a Directed Verdict

Defendant argues that the trial court erred in denying its motions for partial summary disposition and a directed verdict with regard to plaintiff's claim premised on an inherently dangerous activity theory.³ Defendant also argues that the trial court erred in denying its motion for a directed verdict with regard to plaintiff's claim premised on a theory of retained control. In each instance we disagree.

A. Summary Disposition

We review a "trial court's denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law." Terry v. Detroit, 226 Mich.App. 418, 423, 573 N.W.2d 348 (1997).

A motion pursuant to MCR 2.116(C)(10),⁴ tests the factual basis underlying a plaintiff's claim. MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact.... A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Stehlik v. Johnson (On Rehearing), 206 Mich.App. 83, 85, 520 N.W.2d 633 (1994).]

"The inherently dangerous activity doctrine is an exception to the general rule that an employer of an independent contractor is not liable for the contractor's negligence or the negligence of his employees." Bosak v. Hutchinson, 422 Mich. 712, 724, 375 N.W.2d 333 (1985) (citing 2 Restatement Torts, 2d, § 409, p. 370; 41 Am. Jur. 2d, Independent Contractors, § 41, p. 805). Accord Rasmussen v. Louisville Ladder Co., Inc., 211 Mich.App. 541, 548-549, 536 N.W.2d 221 (1995).

Under the doctrine, liability may be imposed when "the work contracted for is likely to create a peculiar risk of physical harm or if the work involves a special danger inherent in or normal to the work that the employer reasonably should have known about at the inception of the contract." The risk or danger must be recognizable in advance, i.e., at the time the contract is made. The Court in Bosak emphasized that liability should not be imposed where a new risk is created in the performance of the work and the risk was not reasonably contemplated at the time of the contract. [Szymanski v. K mart Corp., 196 Mich.App. 427, 431, 493 N.W.2d 460 (1992), vacated and remanded on other grounds 442 Mich. 912, 503 N.W.2d 449 (1993) (citations omitted).]

After reviewing the relevant documentary evidence in a light most favorable to plaintiff, we agree with the trial court that with respect to defendant's motion for summary disposition, there existed a question of fact regarding whether the welding of the fuel tank was an inherently dangerous activity. Plaintiff presented deposition testimony by a welding expert that the welding of the fuel tank was inherently dangerous, and that defendant should have anticipated the activity and the special dangers of the activity at the time the project began. Additionally, there was evidence that defendant was aware that the activity of welding a fuel tank, which previously held diesel fuel, carried a special danger inherent to the very nature of the task. There was also evidence that known and applicable relevant safety precautions— including the use of qualified personnel— were not followed. Finally, the documents indicate that defendant knew that the process of refitting the vehicle could include unanticipated on-site adjustments.

B. Directed Verdict

"This Court reviews de novo the trial court's decision on a motion for a directed verdict." Braun v. York Properties, Inc., 230 Mich.App. 138, 141, 583 N.W.2d 503 (1998). "When evaluating a motion for a directed verdict, a court must consider the evidence in the light most favorable to the nonmoving party, making all reasonable inferences in favor of the nonmoving party. Directed verdicts are appropriate only when no factual question exists upon which reasonable minds may differ." Meagher v. Wayne State Univ., 222 Mich.App. 700, 708, 565 N.W.2d 401 (1997) (citations omitted).

1. Inherently Dangerous Activity

After reviewing the record, we conclude that plaintiff presented sufficient evidence at trial to preclude a directed verdict for defendant. Undisputed evidence was presented that the activity of welding containers that previously held diesel fuel carried a serious risk of injury and involved a peculiar risk to workers unless a high degree of care was taken. In addition, there was evidence that because the blueprints were designed and drawn by defendant and the project involved removal and replacement of the diesel fuel tank, defendant should have anticipated that such welding might occur. Further, both Peter Krawiecki, defendant's prototype shop manager, and plaintiff testified there were several instances in the past when Omni-Tek employees had to weld fuel tanks that previously held diesel fuel while working on prototype vehicles. Plaintiff's expert witness also explained that the very existence of a variety of industry and government standards addressing the special hazard of welding a closed vessel that previously contained flammables or combustibles illustrated the inherently dangerous nature of that activity. There was also evidence that plaintiff had no formal training with welding and that defendant was aware that plaintiff had no formal training or instruction with regard to welding.

2. Retained Control

A second main exception to the general rule of nonliability for the negligence of an independent contractor is "where the general contractor ... effectively retains control over the work involved." Phillips v. Mazda Motor Mfg. (USA) Corp., 204 Mich.App. 401, 408, 516 N.W.2d 502 (1994) (citation omitted).

Here, viewed in a light most favorable to plaintiff, the evidence was sufficient to create a question of fact with regard to whether defendant retained sufficient control over the work. At the time the motion for a directed verdict was made, there was testimony that during the time the vehicle at issue was being modified, Krawiecki had control of the daily operations at Omni-Tek, including those involving the vehicle. For example, there was evidence that Krawiecki controlled Omni-Tek's budget, made daily work assignments, and reported directly to defendant's chief engineer. Indeed, Krawiecki admitted that it was his job to manage the development and manufacture of prototype vehicles. Therefore, the trial court did not err in denying defendant's motion for a directed verdict.

III. Admission Into Evidence of Various Safety Regulations and Standards

Defendant also claims that the trial court committed error requiring reversal by admitting into evidence various safety regulations and standards. Defendant contends that because those regulations and standards were not used for impeachment purposes,⁵ and because their probative value is substantially outweighed by their prejudicial effect,⁶ this Court should remand the case for a new trial. We do not agree. Defendant has failed to properly preserve this issue for appellate review because its objection was based on grounds not asserted below. MRE 103(a)(1). At trial, defendant objected to their admission on the ground of relevancy. "Objections based on one ground are insufficient to preserve an appellate review based on other grounds." In re Leone Estate, 168 Mich.App. 321, 326, 423 N.W.2d 652 (1988). Therefore, because we find no plain error and are unconvinced that defendant's substantial rights were adversely affected, we see no reason to review this unpreserved issue. Meagher, supra at 724, 565 N.W.2d 401. See MRE 103(d).⁷

IV. Alleged Improper Arguments Made by Plaintiff's Counsel

Finally, defendant argues that it was denied a fair trial when plaintiff's counsel made several comments during closing argument that were designed to improperly appeal to the sympathy of the jurors, and to prejudice them against defen...