Perry v. McLouth Steel Corp.

• Decision Date: 08 September 1986
• Docket Number: Docket No. 82297
• Citation: 154 Mich.App. 284,397 N.W.2d 284
• Parties: Paul J. PERRY and Sharon Perry, Plaintiffs-Appellants, v. McLOUTH STEEL CORPORATION, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 284

397 N.W.2d 284

154 Mich.App. 284

Paul J. PERRY and Sharon Perry, Plaintiffs-Appellants, v. McLOUTH STEEL CORPORATION, Defendant-Appellee.

Docket No. 82297.

Court of Appeals of Michigan.

Submitted Feb. 13, 1986.

Decided Sept. 8, 1986.

Schefman & Miller (by Neil A. Miller), Birmingham, for plaintiffs-appellants.

Natinsky, Jaffa, Katchke, McKrouer & Hoffmann (by Lee T. Hoffmann, Jr.), Southfield, for defendant-appellee.

Before MacKENZIE, P.J., and CYNAR and MARTIN, ^* JJ.

CYNAR, Judge.

Plaintiffs, Paul Perry (plaintiff), and his wife, Sharon Perry, filed a complaint against defendant, McLouth Steel Corporation, in Wayne Circuit Court alleging that plaintiff was injured while working on defendant's premises. On October 17, 1984, the jury found that defendant was not negligent, and a judgment of no cause of action in favor of defendant was subsequently entered. On December 21, 1984, the circuit court judge entered an order denying plaintiffs' motion for a judgment notwithstanding the verdict or, alternatively, a new trial. Plaintiffs appeal as of right.

Plaintiff was an ironworker employed by Michigan Boiler and Engineering Company, Inc. (Michigan Boiler). Defendant had contracted with Michigan Boiler to reline a blast furnace at defendant's Trenton steel mill. While working at the mill in August, 1979, plaintiff slipped in an open trench and injured his knee. As a result of his injury, he was unable to return to work until December, 1981.

Evidence was presented at the trial that the air inside the mill was thick with "coke breeze" and that the floor was constantly littered with taconite pellets. Trenches, measuring approximately a foot deep, were built into the floor to collect water. When the coke breeze settled on top of the water in the trenches, the water became indistinguishable from the concrete floor and it was almost impossible to see the trench. For this reason, grates were required on top of the trenches. However, personnel were occasionally required to remove the grates in order to clean the trenches. While it was not established who removed the grate covering the trench into which plaintiff fell nor how long the grate had been missing, evidence was presented that Michigan Boiler's contract with defendant did not extend to maintaining or repairing the trenches.

Plaintiffs' claim proceeded to trial on three alternate theories: first, that defendant, as property owner, was negligent in maintaining the premises; second, that defendant had retained control over the work site; and third, that the work was inherently dangerous. Defendant's theory of defense, as set forth in its trial brief, was that Michigan Boiler was in complete control of the work and that defendant could not be held legally responsible for Michigan Boiler's negligence. In his opening statement, counsel for defendant argued that under McLouth's contract with Michigan Boiler reasonable measures were taken to keep the premises safe. Counsel further stated that, under its contract, Michigan Boiler was "charged with the duty of looking after safety."

At the conclusion of plaintiffs' proofs, the trial court granted a directed verdict in favor of defendant on the issues of retained control and inherently dangerous activity. The court found that plaintiffs' claim was "a straight negligence case" involving premises liability and that plaintiffs' alternative theories were irrelevant. Accordingly, the parties' closing arguments were limited to whether defendant had reasonably exercised its duties to plaintiff.

Following deliberations, the jury found that defendant was not negligent.

On appeal, plaintiffs argue that the trial court erred in refusing to instruct the jury on an applicable jury instruction requested by plaintiffs. Under GCR 1963, 516.6(2), now MCR 2.516(D)(2), the trial court is required to give pertinent portions of the Michigan Standard Jury Instructions if they are applicable and accurately state the law. The trial court has discretion to determine the applicability of a requested SJI. Johnson v. Corbet, 423 Mich. 304, 326-327, 377 N.W.2d 713 (1985). If the court determines that the instruction is applicable, it is required to instruct the jury accordingly. However, failure to give the instruction will not result in reversal unless failure to set aside the verdict would be "inconsistent with substantial justice." 423 Mich. 326, 377 N.W.2d 713; Cornforth v. Borman's, Inc., 148 Mich.App. 469, 385 N.W.2d 645 (1986).

Plaintiff contends that the trial court erred in failing to give SJI2d 19:10, which reads:

"A possessor or occupier of [land / premises / a place of business] who owes a duty to [name of plaintiff] may not delegate the responsibility to another and thus avoid liability."

The Note on Use following the instruction provides that the instruction should be given if an issue is raised at trial that the occupier or possessor of property has attempted to delegate its duty regarding the premises by either a lease agreement, a contract, or the employment of an independent contractor.

The trial court found that SJI2d 19:10 was inapplicable. The court found that the requested instruction only applied to those situations in which the premises owner attempted to deny that it had a duty to the plaintiff. The court distinguished between denying liability on the basis that defendant had delegated its responsibility to Michigan Boiler and, thus, owed no duty to plaintiff and denying liability on the grounds that defendant had exercised its duty of ordinary care:

"If the defendant makes some attempt to argue 'Look we do not owe the duty of ordinary care because we had an arrangement with a third party that rid ourselves of it.' This instruction is designed to disabuse the jury of that notion. That isn't what happened in this case. That is not what occurred.

"The Defendant in this case made no such attempt, it contended that it had in fact exercised this duty of ordinary care and part of its response to fulfill its duty may have had to do with its relationship to the Plaintiff's own employer. But the mere fact that the Defendant's factual defense refers to the relationship between itself and a party with whom it has contracted is not the same thing as saying that the Defendant has attempted to rid itself, to tell the jury that it has rid itself of ordinary care. Those are two quite different things."

We agree with the court's interpretation of the instruction. A viable distinction can be drawn between a theory of defense which refers to the contractual relationship between the premises owner and contractor and a defense in which the property owner attempts to deny that it owed a duty of ordinary care. In our opinion, SJI2d 19:10 need only be given in those instances in which the defendant attempts to argue that it has delegated or rid itself of any duty owed to plaintiff, either by the terms of the contract or because any negligence was attributable to the contractor. However, that does not end our inquiry. We must still determine whether the court abused its discretion in finding that SJI2d 19:10 was inapplicable. Resolution of this question requires careful scrutiny of the record in order to determine whether McLouth raised the issue of delegation of duty during the trial.

Our examination commences with the testimony of Larry Mates, the only witness presented on behalf of defendant. Mates was employed as safety director for Michigan Boiler and worked in that capacity during the relining of the blast furnace. He testified that, according to the job specifications he was given by defendant, Michigan Boiler was "responsible for people and the safety of our people on that project." In his capacity as safety director, Mates was present on the job twelve to fourteen hours a day. He supervised the area for safety problems and, if a danger was brought to his attention, Mates ensured that it was corrected. Additional safety measures included weekly safety meetings with various union stewards and a medical trailer on the job site.

Evidence regarding safety measures was also adduced during defendant's cross-examination of John Kline. Kline was employed by Michigan Boiler as union steward for the iron workers. As union steward, Kline was responsible for examining the work area for safety hazards. If an unsafe condition arose, Kline would notify Mates; if the condition was extreme, Kline would stop the job.

Joseph Turek, chief engineer of McLouth in August, 1979, was called by plaintiffs as an adverse witness. Turek's testimony was primarily directed to the question of control. He testified that McLouth retained Arnold and Associates to prepare the specifications for the job and supervise the quality of the work. Under the contract, Michigan Boiler was not responsible for the trenches. In response to a question posed by defense counsel, Turek stated that the contract did have a section dealing with safety and that it specified that Michigan Boiler was in charge of safety in the area in which it was working.

Theodore Main was also called as an adverse witness. Main was employed as supervisor of safety for McLouth. He testified that, while he normally inspected the blast furnace areas twice a week, he did not do so from June until August, 1979. When questioned by defense counsel, Main explained that he did not examine the area during this period because it was under the control of Michigan Boiler and the contractor was maintaining daily safety inspections.

Larry Hayes, a safety inspector, was called as an expert witness on behalf of plaintiffs. Hayes testified that he visited the job site in late 1981 or early 1982. He stated that an open drainage trench presented a "high risk hazard" to anyone in the workplace. In his opinion, defendant should have known of the hazard. He also believed that continuing inspections should have been made by defendant in all areas of the facility and that defendant failed to...