Muscat v. Khalil, Docket No. 81341

• Decision Date: 11 February 1986
• Docket Number: Docket No. 81341
• Citation: 150 Mich.App. 114,388 N.W.2d 267
• Court: Court of Appeal of Michigan — District of US
• Parties: Mario MUSCAT, Plaintiff-Appellant, v. Thomas M. KHALIL, Judith A. Khalil and Khalil Bros., Inc., jointly and severally, Defendants-Appellees.

Page 267

388 N.W.2d 267

150 Mich.App. 114

Mario MUSCAT, Plaintiff-Appellant, v. Thomas M. KHALIL, Judith A. Khalil and Khalil Bros., Inc. jointly and severally, Defendants-Appellees.

Docket No. 81341.

Court of Appeals of Michigan.

Submitted Jan. 14, 1986.

Decided Feb. 11, 1986.

Zeff & Zeff & Materna by Donald M. Fulkerson, Detroit, for plaintiff-appellant.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Michael L. Updike, Farmington Hills, for Thomas and Judith Khalil.

Robert L. Ziolkowski, Detroit, for Khalil Bros., Inc.

Before HOOD, P.J., and J.H. GILLIS and BATZER, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from an October 11, 1984, order denying plaintiff's motion for reconsideration of an order of summary judgment entered in favor of the defendants.

This case arose out of an incident which occurred while plaintiff was engaged in performing exterior painting and roofing work for defendant Thomas Khalil at the latter's home. Plaintiff, then 18 years of age, knew Thomas Khalil as a neighbor but had not previously worked for him. However, he had worked as an attendant in a parking lot owned by defendant Khalil Bros. Inc. Plaintiff and a friend, Raymond Montes, agreed to perform the necessary work for a fee to be determined after the job was completed. It was also agreed that Thomas Khalil would supply all tools and materials.

On September 1, 1977, after determining that a taller ladder was needed to perform the work, plaintiff approached Thomas Khalil with a request for such a ladder. Thomas instructed plaintiff to obtain a key to the "Peanut Factory", which was owned by Khalil Bros., Inc., from his brother Monier Khalil. Monier informed plaintiff that a ladder was located right inside the door to the Peanut Factory.

After obtaining the ladder, plaintiff and Montes returned to the house and extended the ladder to the point they needed to reach. Plaintiff climbed the ladder while Montes held it at the bottom. Plaintiff intended to enter the attic by means of the ladder and tie a rope around a beam in order to bring tar up to the roof. Plaintiff also intended to tie himself to a safety harness, which he had borrowed from his father. However, while plaintiff was in the attic, Montes left his position at the bottom of the ladder. When plaintiff returned and began ascending the ladder from the attic to the roof, the base of the ladder apparently slipped, at which point it began to "telescope" down. Plaintiff fell, receiving serious injuries which resulted in partial paralysis.

In attacking the order of summary judgment on appeal, plaintiff first contends that the trial court erred in finding the "inherently dangerous activity" doctrine inapplicable to this case. We agree with the trial court. As explained in the recent Michigan Supreme Court case Bosak v. Hutchinson, 422 Mich. 712, 375 N.W.2d 333 (1985), "[t]he 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, p. 724, 375 N.W.2d 333. Further, the Court noted that:

"Michigan has recognized the exception for activities which reasonably can be foreseen as dangerous to third parties, [citing Grinnell v Carbide & Carbon Chemicals Corp, 282 Mich 509; 276 NW 535 (1937); Watkins v Gabriel Steel Co, 260 Mich 692; 245 NW 801 (1932); Wight v H G Christman Co, 244 Mich 208; 221 NW 314 (1928); Olah v Katz, 234 Mich 112; 207 NW 892 (1926); Inglis v Millersburg Driving Ass'n, 169 Mich 311; 136 NW 443 (1912) ] and has, on occasion, allowed the doctrine to be applied to employees of the contractor performing the dangerous work. McDonough v General Motors Corp, 388 Mich 430; 201 NW2d 609 (1972); Vannoy v City of Warren, 15 Mich App 158; 166 NW2d 486 (1968), lv den 382 Mich 768 (1969)." Bosak, p. 724, 375 N.W.2d 333.

Also relied upon by the Bosak Court in its efforts to delineate the extent of the doctrine were the following excerpts from the Restatement of Torts, 2d:

" '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 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. [2 Restatement Torts, 2d, Sec. 416, p. 395.]

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" '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. [2 Restatement Torts, 2d, Sec. 427, p. 415.]' ". 422 Mich. 726, 375 N.W.2d 333.

We note from each of the passages quoted above that the independent contractor himself is not mentioned as a party intended to benefit from the inherently dangerous activity doctrine. Rather, the passages refer to "third parties" or, more generally, "others", and employees of the contractor. We do not believe that these references were inadvertent since none of the cases cited by the plaintiff involves a recovery by the independent contractor himself for damages sustained as a result of his own negligence in performing the work of the employer. We believe that an important distinction exists between employees of an independent contractor and the independent contractor himself. Since an employee has no control over the manner in which the work is to be performed and must simply carry out the orders and directions of his employer, he stands in a position more closely akin to the innocent bystander, or "third party". The independent contractor himself, on the other hand, was hired specifically for his ability to perform the work properly and is given complete control over the manner in which the job is to be completed. Thus, where harm occurs as a result of the failure to take "special" precautions in work " 'necessarily involving danger to others, unless great care is used' ", Bosak, supra, p. 727, 375 N.W.2d 333, quoting Inglis v. Millersburg Driving Ass'n, supra, 169 Mich. p. 331, 136 N.W. 443, employees and third parties, not having the authority to ensure that the necessary care is used, are rightfully excepted from the general rule which immunizes the employer of the independent contractor from liability. However, the independent contractor himself in most instances is in a better position to determine when and where "great care" and "special precautions" are warranted and is empowered with the authority to ensure that such care is exercised. ¹ Therefore, without considering whether the activity involved herein was in fact "inherently dangerous", we conclude that the position advanced by plaintiff would result in an unwarranted extension of the "inherently dangerous activity" exception to the immunity afforded employers of independent contractors.

The next issue raised by plaintiff concerns his theory of negligent entrustment, which the trial court rejected as inapplicable to the facts of this case. Michigan courts have adopted the following definition of the theory from 2 Restatement Torts, 2d, Sec. 392:

" 'One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.' " Moning v. Alfono, 400 Mich. 425, 443-444, 254 N.W.2d 759 (1977).

As a result of further refinement of the applicable standard of care in Fredericks v. General Motors Corp., 411 Mich. 712, 311 N.W.2d 725 (1981), it is now clear that in order to prove negligent entrustment, "plaintiffs must show either that defendant knew the entrustee was not to be entrusted or that defendant 'had special knowledge of [the entrustee] which would put defendant on notice' ". Buschlen v. Ford Motor Co. (On Remand), 121 Mich.App. 113, 117, 328 N.W.2d 592 (1982), aff'd 421 Mich. 192, 364 N.W.2d 619 (1984), quoting Fredericks, supra, 411 Mich. p. 720, 311 N.W.2d 725.

Plaintiff argues that, because of his youth (18 years of age) and inexperience, defendants and "[e]ven the most uninformed layperson knew or should have known that [plaintiff] was likely to use the various supplied equipment, specifically the extension ladder, in some unsafe manner". (Emphasis in original.) As we see it, the success of plaintiff's argument depends upon one's acceptance of the proposition that an extension ladder is so inherently dangerous that an 18 year old must be presumed incapable of safely using the tool. We cannot accept this argument. An extension ladder is an essentially uncomplicated instrument which gains a propensity for danger only because it will allow the user to reach great heights. This danger is most obvious to all but children of tender years whose intellectual capacity does not permit them to reason to such conclusions. We must assume that 18 year olds such as plaintiff have achieved the intellectual development which would take them out of the "tender years" category. Thus, only by proving that the defendants knew plaintiff to be a careless risk-taker who might be expected to use the ladder with little or no concern for his own safety could the plaintiff succeed under the theory of negligent entrustment. The facts as admitted by plaintiff prove this not to be the case. Plaintiff was concerned enough for his own safety to come equipped with a safety harness,...