Oberle v. Hawthorne Metal Products Co.

• Decision Date: 17 December 1991
• Docket Number: Docket No. 118694
• Citation: 480 N.W.2d 330,192 Mich.App. 265
• Parties: Irwin OBERLE, Plaintiff-Appellee, v. HAWTHORNE METAL PRODUCTS COMPANY, Defendant-Third-Party Plaintiff-Appellee/Cross Appellant, v. COMMERCIAL CONTRACTING CORPORATION, Third-Party Defendant-Appellant/Cross Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 330

480 N.W.2d 330

192 Mich.App. 265

Irwin OBERLE, Plaintiff-Appellee, v. HAWTHORNE METAL PRODUCTS COMPANY, Defendant-Third-Party Plaintiff-Appellee/Cross Appellant, v. COMMERCIAL CONTRACTING CORPORATION, Third-Party

Defendant-Appellant/Cross Appellee.

Docket No. 118694.

Court of Appeals of Michigan.

Submitted July 15, 1991, at Detroit.

Decided Dec. 17, 1991, at 9:15 a.m.

Released for Publication March 10, 1992.

Milan, Miller, Berger, Brody & Miller, P.C. by Allen S. Miller, Detroit, for plaintiff-appellee.

Vandeveer Garzia by James K. Thome and Robert D. Brignall, Birmingham, for Hawthorne Metal Products.

Law Offices of Natinsky & Jaffa by Jonathan M. Jaffa, Southfield, for Commercial Contracting Corp.

Before DOCTOROFF, P.J., and McDONALD and BRENNAN, JJ.

PER CURIAM.

Third-party defendant, Commercial Contracting Corporation, appeals as of right from a December 20, 1988, judgment entered on a jury verdict finding Commercial owed defendant and third-party plaintiff, Hawthorne Metal Products Company, indemnification for the damages awarded to plaintiff, Irwin Oberle, on his negligence claim against Hawthorne. Hawthorne cross appeals from the same judgment. We affirm in part, reverse in part, and remand for further proceedings.

On October 7, 1988, following a jury trial in this matter, the jury returned a verdict against Hawthorne Metal Products Company on plaintiff's claim that he had been injured as a result of his participation, as an employee of Commercial Contracting Corporation, in installing a press in Hawthorne's manufacturing plant. It was plaintiff's contention that this work was inherently dangerous. The jury found Hawthorne liable to plaintiff on that basis and returned a verdict of $500,000 in damages, reduced by sixty percent for comparative fault the jury found attributable to plaintiff. Further, the jury found Hawthorne was entitled to common-law indemnity and implied contractual indemnity from third-party defendant Commercial.

In 1984, Hawthorne, a stamping company in the business of manufacturing automobile parts, decided to install a press in its manufacturing plant. Thereafter, Hawthorne contracted with Fiorvento Construction Company to dig and construct a press pit. The construction blueprints for the press pit were prepared by Hawthorne. Although the concrete pit was to be approximately 13 feet deep, 25 feet long, and 20 feet wide, the blueprints did not provide for guards or barriers around the pit.

After the press pit was constructed, Hawthorne contracted with Commercial to erect a press inside the pit. There were no guardrails or barriers around the pit when the Commercial crew arrived to erect the press, and none were installed by the crew before beginning construction.

On August 24, 1984, plaintiff Oberle, the Commercial crew foreman, walked toward the pit to listen to something another crew member was saying from across the pit and walked right into the pit. As a result of the fall, Oberle broke both feet, his left hip, and his left wrist, and injured his left shoulder.

Thereafter Oberle filed a complaint against Hawthorne, alleging negligence and liability pursuant to the inherently dangerous activity doctrine. Hawthorne then filed a third-party complaint against Commercial, alleging common-law indemnity, implied indemnity, and contractual indemnity. The trial court granted partial summary disposition in favor of Hawthorne, dismissing with prejudice all claims against Hawthorne except Oberle's claim based on the inherently dangerous activity doctrine. The matter then proceeded to trial, and the contested jury verdict was returned. Hawthorne and Commercial each made motions for judgment notwithstanding the verdict or new trial. These motions were denied.

On appeal, both Commercial and Hawthorne claim the trial court erred in denying Hawthorne's motion for a directed verdict, arguing plaintiff failed to prove the installation of a press in a stamping plant is an inherently dangerous activity. Hawthorne also claims error in the denial of its motion for summary disposition pursuant to MCR 2.116(C)(10) on this issue.

As a general rule, an employer of an independent contractor is not liable for the contractor's negligence or the negligence of the contractor's employees. Bosak v. Hutchinson, 422 Mich. 712, 375 N.W.2d 333 (1985). However, an exception to this rule exists, and liability is imposed, if 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. Bosak; Samodai v. Chrysler Corp., 178 Mich.App. 252, 443 N.W.2d 391 (1989).

In this case, plaintiff presented evidence indicating the installation of a press in a 13-foot-deep press pit involved a peculiar risk or special danger of physical harm given the serious injuries likely to result from someone falling into the pit, especially where the pit is unprotected by guardrails or other barriers and the activity contracted for specifically involves the area of the pit. Further, plaintiff presented testimony that Hawthorne was aware the work was inherently dangerous because it prepared the blueprints for the job and knew constructing the press would involve work around an unguarded pit. Viewing this evidence in a light most favorable to plaintiff, we conclude plaintiff submitted sufficient evidence to create a question of fact for the jury to determine whether or not the installation of the press into the press pit was an inherently dangerous activity. Stoken v. J E T Electronics & Technology, Inc., 174 Mich.App. 457, 436 N.W.2d 389 (1988).

Because the pleadings and deposition revealed a factual question regarding the inherent dangerousness of the work, summary disposition also was properly denied. Jesson v. General Telephone Co. of Michigan, 182 Mich.App. 430, 452 N.W.2d 836 (1990). Lastly, contrary to Hawthorne's assertions, the inherently dangerous activity doctrine is applicable to employees of the contractor performing the work. Muscat v. Khalil, 150 Mich.App....