Reeves v. Kmart Corp.

• Decision Date: 05 May 1998
• Docket Number: Docket No. 197796
• Citation: Reeves v. Kmart Corp., 582 N.W.2d 841, 229 Mich.App. 466 (Mich. App. 1998)
• Parties: Steve REEVES, III, as Personal Representative of the Estates of Kevin Martin Reeves and Kevin Martin Reeves, Jr., and Kevin Redmond, as Personal Representative of the Estates of Shawn Eileen Reeves and Tanesha Reeves, Plaintiffs-Appellants, v. KMART CORPORATION and Michigan Department of Transportation, Defendants-Appellees, and McClain Industries and Southfield Quality Leasing Co., Defendants.
• Court: Court of Appeal of Michigan

Page 841

582 N.W.2d 841

229 Mich.App. 466

Steve REEVES, III, as Personal Representative of the Estates of Kevin Martin Reeves and Kevin Martin Reeves, Jr., and Kevin Redmond, as Personal Representative of the Estates of Shawn Eileen Reeves and Tanesha Reeves, Plaintiffs-Appellants, v. KMART CORPORATION and Michigan Department of Transportation Defendants-Appellees and McClain Industries and Southfield Quality Leasing Co., Defendants.

Docket No. 197796.

Court of Appeals of Michigan.

Submitted Jan. 13, 1998, at Detroit.

Decided May 5, 1998, at 9:05 a.m.

Released for Publication Aug. 24, 1998.

Zeff and Zeff, P.C. (by Paul W. Broschay), Detroit, for the appellants.

Pedersen, Keenan, King, Wachsberg & Andrzejak (by Thomas E. Keenan), Farmington Hills, for Kmart Corporation.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Harold J. Martin, Assistant Attorney General, for Department of Transportation.

Before MARKMAN, P.J., and McDONALD and MARK J. CAVANAGH, JJ.

MARK J. CAVANAGH, Judge.

Plaintiff Steve Reeves, III, as personal representative of the estates of Kevin Reeves and Kevin Reeves, Jr., and plaintiff Kevin Redmond, as personal representative of the estates of Shawn Reeves and Tanesha Reeves, appeal as of right the trial court orders granting summary disposition to defendants Kmart Corporation and the Michigan Department of Transportation (MDOT). We affirm.

In 1992, Doug Perdue, a district manager with defendant Kmart, became concerned that individual Kmart stores were paying too much for waste removal. Session Recycling, Inc., ¹ sent Kmart a letter describing itself as a minority-owned waste-hauling firm that recycled to the maximum possible extent and avoided the use of landfills wherever possible. After meeting with David Cartwright, a representative of Session, and negotiating a price that represented "up to 50% savings" for the service at various stores, Perdue arranged for Cartwright to make a presentation at a meeting of store managers. At the meeting, Cartwright distributed an eight-page brochure that described the company as having experienced employees, fully automated trucks, and over thirty years of experience in waste management. The brochure also contained the names of Session's existing clientele; several Fortune 500 companies were included on the list.

Several Kmart stores subsequently contracted with Session to have the latter pick up their garbage. The following procedure was used for waste disposal: When the garbage bin at a Kmart store was nearly full, store personnel would call for a pick-up. Session would then go to the store, pick up the full bin, leave an empty one, and get a signed receipt showing that the pick-up had been made. A Kmart employee testified that the pick-up procedure did not require Kmart employees to leave the store.

On January 7, 1994, a Session truck driven by Richard Hayter picked up garbage from a Kmart store in Warren. Subsequently, Hayter got off the Lodge Freeway at West Grand Boulevard, traveling in excess of the speed limit, and struck three cars on the service drive before colliding with a Ford Escort. The occupants of the Escort, Kevin and Shawn Reeves and their two minor children, Kevin, Jr., and Tanesha, were all killed.

An inspection of the truck following the accident revealed many mechanical defects, several of which would have resulted in the vehicle being placed out of service following an inspection. Among the more serious problems were that four of the six brakes on the truck were defective, and a fifth was inoperative; eight of the ten tires were underinflated; the vehicle was both overloaded and improperly loaded; and there was excess free play in the steering mechanism. The inspector stated in his report, "In 35 years of heavy truck inspections I have not experienced [such] disregard for the laws of safe truck operation or contempt for the motoring public." Two employees of Session testified in affidavits that, before the day of the accident, Kmart employees had made comments regarding the condition of the truck such as "Will you make it back with that truck?" and "That truck looks dangerous the way it is loaded."

The MDOT had designated speed limit signs indicating that drivers should slow to twenty-five miles an hour on the exit ramp. However, at the time of the accident, there were no such signs on the exit ramp.

Plaintiffs filed a wrongful death action in the Wayne Circuit Court against a number of defendants, including Session, Hayter, and Kmart. Plaintiffs also filed a lawsuit in the Court of Claims against the MDOT, alleging that it was liable for its failure to have posted traffic signs to alert drivers to reduce speed while on the exit ramp. The two actions were subsequently consolidated in the Wayne Circuit Court. With the exceptions of Kmart and the MDOT, all the defendants have either been dismissed or have entered settlement agreements with plaintiffs and are not party to this appeal.

On August 28, 1995, the MDOT moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). The MDOT argued that it did not have jurisdiction over the area of the Lodge Freeway where the accident occurred, that it was immune from suit because the alleged defect in the highway was not on the improved portion of the roadway, and that there was no genuine issue of material fact that the absence of speed limit signs on the exit ramp was not a proximate cause of the accident. On September 25, 1995, the trial court granted the MDOT's motion on the bases that the speed limit signs, if installed, would not have been on the traveled portion of the freeway, and there was no genuine issue of material fact that the absence of speed limit signs was not a proximate cause of the accident.

On August 8, 1995, Kmart filed a motion for summary disposition, which the trial court denied. Plaintiffs then filed an amended complaint in which they narrowed their claims. Kmart renewed its motion for summary disposition on November 30, 1995. On July 17, 1996, the trial court issued an opinion and order granting Kmart's motion. ² The court concluded that Kmart did not owe a duty to plaintiffs' decedents to exercise care in the selection of an independent contractor and to monitor its independent contractor to ensure safe execution of its duties, and therefore granted Kmart's motion for summary disposition pursuant to MCR 2.116(C)(8). The court further concluded that, if such a duty exists, the duty requires only that Kmart not be reckless in its selection of an independent contractor. Thus, because plaintiffs failed to present any competent evidence to suggest that Kmart was reckless in selecting Session for waste removal, summary disposition still would be appropriate under MCR 2.116(C)(10).

I

Plaintiffs first argue that the trial court erred in finding that Kmart owed no duty to plaintiffs' decedents in its selection and retention of an independent contractor. This is a question of law that we review de novo. See Schadewald v. Brule, 225 Mich.App. 26, 35, 570 N.W.2d 788 (1997).

The general rule is that an employer of an independent contractor is not liable for the contractor's negligence. Bosak v. Hutchinson, 422 Mich. 712, 724, 375 N.W.2d 333 (1985); Janice v. Hondzinski, 176 Mich.App. 49, 56, 439 N.W.2d 276 (1989). However, the Supreme Court has provided two exceptions to this general rule. A party may be liable for the negligence of an independent contractor where the party retains and exercises control over the contractor or where the work is inherently dangerous. Funk v. General Motors Corp., 392 Mich. 91, 108-110, 220 N.W.2d 641 (1974), overruled in part on other grounds in Hardy v. Monsanto Enviro-Chem Systems, Inc., 414 Mich. 29, 323 N.W.2d 270 (1982). Although Funk addressed the rule in the context of a landowner and the contractor hired to build a structure on the land, we do not believe, and neither party argues, that the Supreme Court intended the rule to be limited to that factual situation.

Plaintiffs contend that Funk supports their claim that Michigan recognizes a duty in the selection and retention of an independent contractor. Plaintiffs rely on the following language from Funk: "Ordinarily a landowner is not responsible for injuries caused by a carefully selected contractor to whom he has delegated the task of erecting a structure." Funk, supra at 101, 220 N.W.2d 641. Plaintiffs argue that the use of the words "carefully selected" to modify contractor imposes a duty of care upon an employer when selecting a contractor. We disagree. First, in Funk, the Court found that the defendant could be held liable for the plaintiff's injuries because it had retained control over the manner in which the work was to be performed, not because it had failed to use care in selecting its contractors. See id. at 108, 220 N.W.2d 641. The Funk Court did not address whether a general duty exists regarding the selection of an independent contractor.

Second, as Kmart contends, plaintiffs' interpretation of this language creates a Catch-22 for anyone who hires an independent contractor. In asserting that Kmart did not take due care in employing and retaining Session, plaintiffs argue that Kmart should have investigated Session to ensure that its trucks were mechanically safe, that the trucks were properly loaded, and that the drivers were qualified. However, had Kmart taken these actions, plaintiffs could then reasonably claim that it was liable under Funk because it had retained control of the enterprise. Thus, under plaintiffs' construction of Funk, Kmart would be liable for an injury if it carefully monitored an independent contractor and if it did not monitor the contractor at all.

Finally, the Funk Court explained that mere owners are not ordinarily liable because owners are not typically professional builders and are not knowledgeable concerning safety measures. See id. at 104-105, 220 N.W.2d 641. The same...