McDonough v. General Motors Corp.

• Decision Date: 31 October 1972
• Docket Number: M,No. 12,12
• Citation: 201 N.W.2d 609,388 Mich. 430
• Parties: John Marie McDONOUGH, Administratrix of the Estate of Michael McDonough, Deceased, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee, v. CHRISTMAN COMPANY and Paragon Bridge and Steel, Third-Party Defendants. arch Term.
• Court: Michigan Supreme Court

Page 609

201 N.W.2d 609

388 Mich. 430

John Marie McDONOUGH, Administratrix of the Estate of Michael McDonough, Deceased, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee, v. CHRISTMAN COMPANY and Paragon Bridge and Steel, Third-Party

Defendants.

No. 12, March Term.

Supreme Court of Michigan.

Oct. 31, 1972.

Harry M. Philo, Detroit, Marcus, McCroskey, Libner, Reamon & Williams, Muskegon, for plaintiff-appellant.

Plunkett, Cooney, Rutt & Peacock, by Charles T. McGorisk, Jeannette A. Paskin, Leonard E. Nagi, Detroit, for appellee General Motors Corp.; Ross L. Malone, Otis M. Smith, James P. Melican, Jr., Detroit, of counsel.

Before the Entire Bench.

PER CURIAM.

Plaintiff sued defendant General Motors Corporation and others for wrongful death of her decedent. All defendants, General Motors excepted, were dismissed with prejudice. Trial against General Motors ended with rendition of an instructed negative verdict and entry of a negative judgment. Division 2 affirmed (28 Mich.App. 7, 183 N.W.2d 904). Other than as amplified in the ensuing opinion, counsel for General Motors have supplied a generally satisfactory statement of facts:

'Michael McDonough, a journeyman iron worker employed by Paragon Bridge & Steel Company, was killed on October 3, 1963 in a construction accident at the Chevrolet assembly plant in Flint. His employer had contracted to erect the structural steel framework for an additional floor which was to be built above the then-existing plant. Sometime before the day of the accident, Paragon had installed several steel trusses which were to become part of the structure. At the time of the accident, Mr. McDonough was standing on one of these trusses. The Paragon crew of which he was a member had just completed the erection and rigging of a still-legged derrick owned by Paragon, which was to be used to lift steel beams onto the roof of the plant. It was then late in the afternoon and it appeared that the derrick would not be used until the following morning. Following the customary practice in the industry, the crew proceeded to tie the boom of the derrick to a permanent truss in order to secure it for the night. While Mr. McDonough was bending under the boom attempting to secure it to the truss the boom fell, due either to careless operation of the derrick or faulty installation of the boom cable. It struck him and caused serious injuries which resulted in his death.'

Division 2 did not meet squarely plaintiff's appeal to the exception which, by our decisions, has been engrafted into the general rule of non-liability of an owner-contractee, when the work contracted for by him is 'inherently dangerous'. ¹ For an up to date statement of the exception, see Vannoy v. City of Warren, 15 Mich.App. 158, 163, 164, 166 N.W.2d 486, 489 (1968):

'In Michigan the inherently or intrinsically dangerous activity doctrine is founded upon a theory which is closely akin to, but not exactly the same as, strict liability. The principle is applied 'where a duty is imposed upon the employer in doing work necessarily involving danger to others, unless great care is used, to make such provision against negligence as may be commensurate with the obvious danger. It is this duty which cannot be delegated to another so as to avoid liability for its neglect.' Inglis v. Millersburg Driving Association (1912), 169 Mich. 311, 321, 322, 136 N.W. 443.'

The Inglis decision seems to make the first occasion when this Court applied the exception to facts tending to show that the work contracted for was inherently dangerous or perilous. In that case the Court approved expressly an extended passage taken from Covington, etc., Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215, 55 N.E. 618, 76 Am.St.Rep. 375 (1899), and then went on to conclude (Inglis at 321, 322, 136 N.W. at 447):

'The principle involved cannot be better stated than it is in the sentence last quoted, Supra. It is not applied to those cases where the injuries occur which are collateral to the employment, like the dropping of material by the servant of a contractor upon a person passing by, but where a duty is imposed upon the employer in doing work necessarily involving danger to others, unless great care is used, to make such provision against negligence as may be commensurate with the obvious danger. It is this duty which cannot be delegated to another so as to avoid liability for its neglect.'

Subsequent cases following Inglis and applying its rule are Huntley v. Motor Wheel Corp., 31 Mich.App. 385, 393, 188 N.W.2d 5 (1971); Vannoy v. City of Warren, 15 Mich.App. 158, 163, 164, 166 N.W.2d 486 (1968); Utley v. Taylor & Gaskin, Inc., 305 Mich. 561, 572, 9 N.W.2d 842 (1943); Grinnell v. Carbide Chemicals Corp., 282 Mich. 509, 527, 276 N.W. 535 (1937); Watkins v. Gabriel Steel Co., 260 Mich. 692, 695, 245 N.W. 801 (1932), and Wight v. H. G. Christman Co., 244 Mich. 208, 215, 221 N.W. 314 (1928). Probably the best statement of the mentioned exception to the general rule, succinct and specific as always when written by Mr Justice Cooley, was quoted in Inglis (from 2 Cooley on Torts, 3rd ed., p. 1091):

"If I employ a contractor to do a job of work for me which in the progress of its execution obviously exposes others to unusual perils, I ought, I think, to be responsible, * * * for I cause acts to be done which naturally expose others to injury." (Inglis at 319, 136 N.W. at 446).

The foregoing Michigan rule is echoed now by 2 Restatement of Torts 2d, particularly sections 416 and 427 (pp. 395 and 415 respectively):

'416. One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

'427. One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger.'

The first question is whether plaintiff made out, as against defendant General Motors' motion below, a case which tended to show that this contract of construction involved 'danger to others unless great care is used' and that defendant General Motors failed to see that such 'great care' attended execution of the contract. ² We think she did, and that the issue of actionable negligence as charged in the first count of her complaint was for the jury.

True, plaintiff bore a burden of legal persuasion that was, by the very nature of the stated rule and its exception, much heavier than obtains in the typical case where ordinary negligence is charged. There must be proof or inference from proof, not only of contracted work that is inherently dangerous, but also proof or inference from proof that 'great care' was not used. We hold that such proof was supplied here.

Generally, and as already known by comparing the ever steepening rates of workmen's compensation insurance, judicial notice may be taken that the assigned task of overhead riggers and assemblers of heavy steel beams and shapes is usually fraught with out-of-ordinary danger to such employees as well as others. Taking such notice, it is Prima facie apparent (but no more than that) that the job called for by this contract had to be performed with 'great care' lest employees--not only of Paragon but of Chevrolet workmen below--be or become endangered by such performance.

Promptly taken photographs of the scene of this fatal accident were received in evidence. They provide striking proof of the inherently dangerous character of this contracted steel construction job. The crew was not framing a new building. It was framing a new floor and new roof over an existing floor and roof of a great manufacturing plant, with work proceeding below as before. The risk on favorable view was that much greater, for it extended to more workmen than those employed by the independent contractor. Had the boom of Paragon's derrick, which the crew had just lengthend from 50 feet to 60 feet, Not fallen partly across the closest of the trussed girders which the crew had fastened into place, it is not unlikely that the boom or some heavy part thereof would have crashed through or partly through the original roof of the plant, beneath which Chevrolet workmen presumably were at work or, considering the time of day, were coming and going between shifts. When the wrong sized cable, ³ which through a succession of sheaves connected the drum of the derrick with the end of the boom, snapped and dropped the boom, the outer end of the latter caught on and was held by the girder; a fact we regard as fortunate for all nearby, plaintiff's decedent excepted.

We do Not say that the mentioned exception applies here As a matter of law or, for that matter, that it applies As a matter of law to other like cases. We say only that the evidence adduced warranted submission of the question of liability as charged, under the rule of Inglis and subsequent cases.

General Motors however claims immunity from liability under two provisions of the construction contract. They are:

'11. Contractor's Responsibility: The Contractor shall be responsible for his work and every part thereof and for all materials, tools, appliances and property of every description used in connection therewith. The Contractor shall assume all risks of damage or injury to property or persons used or employed on or in connection with the work, and of all damage or injury to any persons or property...