Samhoun v. Greenfield Const. Co., Inc.

• Decision Date: 28 October 1987
• Docket Number: Docket No. 87084
• Citation: 413 N.W.2d 723,163 Mich.App. 34
• Parties: Wafic SAMHOUN, Mounira Samhoun, Joumana Shibley, Ghassan Samhoun, Nahla Samhoun, Mohammed Samhoun, Jalal Samhoun, Plaintiffs-Appellants, v. GREENFIELD CONSTRUCTION COMPANY, INC., a Michigan Corporation, and City of Flint, a Municipal Corporation, Defendants-Appellees. 163 Mich.App. 34, 413 N.W.2d 723
• Court: Court of Appeal of Michigan — District of US

Page 723

413 N.W.2d 723

Wafic SAMHOUN, Mounira Samhoun, Joumana Shibley, Ghassan

Samhoun, Nahla Samhoun, Mohammed Samhoun, Jalal

Samhoun, Plaintiffs-Appellants, v. GREENFIELD CONSTRUCTION COMPANY, INC., a Michigan

Corporation, and City of Flint, a Municipal

Corporation, Defendants-Appellees.

Docket No. 87084.

163 Mich.App. 34, 413 N.W.2d 723

Court of Appeals of Michigan.

Submitted May 5, 1987.

Decided Sept. 10, 1987.

Released for Publication Oct. 28, 1987.

[163 MICHAPP 36] Goodman, Eden, Millender & Bedrosian by James A. Tuck, Detroit, for plaintiffs-appellants.

Law Offices of Franklin, Bigler, Berry & Johnston, P.C. by J. Steven Johnston and Richard R. Danforth, Troy, for Greenfield Const. Co., Inc.

Before BEASLEY, P.J., and HOOD and BORRADAILE, ^* JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order granting the motion for summary disposition of defendant Greenfield Construction Company, Inc., pursuant to MCR 2.116(C)(10) formerly GCR 1963, 117.2(3). We affirm.

Defendant Greenfield Construction Company was the general contractor on two contracts with the City of Flint to construct wastewater pollution controls under a grant from the Environmental Protection Agency. The contracts required Greenfield to mine a 25,000-foot-long tunnel with a [163 MICHAPP 37] twelve-foot diameter, and to provide a concrete lining for a finished eight-foot water tunnel inside. Third-party defendant Carl W. Decker, Inc., was in the business of manufacturing mining machines. After Greenfield was awarded the contracts from the City of Flint, Greenfield began to look for a company to manufacture a tunnelling machine. The machine was to be constructed especially for the Flint job. In late August, 1978, the time for ordering the tunnelling machine was becoming increasingly critical to timely progress of the job. Finally, on October 18, 1978, Greenfield awarded a contract for the construction of a tunnelling machine, including a shield, excavator and backhoe, to Decker. Despite the fact that construction of a backhoe takes from six to eight months, Greenfield requested delivery on February 26, 1979. Manufacture took place at Decker's manufacturing plant in Detroit.

Plaintiff Wafic Samhoun, a welder employed by Decker, was injured while attempting to maneuver a sheet of steel with a crane so that he could weld the other side of it. The sheet of steel swung towards him, causing him to twist his back to avoid being hit. Plaintiff suffered a ruptured disc. Plaintiff and his family filed suit against Greenfield, the City of Flint, and Hubbell, Roth & Clark, Inc., the architects. Hereafter, all references to "plaintiff" will refer to Wafic Samhoun only. Greenfield subsequently filed a third-party complaint against Decker.

In his second amended complaint, plaintiff alleged the following against Greenfield: (1) Greenfield's negligent delay in ordering the machinery required Greenfield to put tremendous pressure on Decker, thereby causing Decker to put pressure on its employees, including plaintiff, causing plaintiff to work without taking proper safety precautions, [163 MICHAPP 38] and causing plaintiff to work in a work area where other employees were likewise not taking proper safety precautions; (2) plaintiff was performing an inherently hazardous activity for a subcontractor of Greenfield, thereby making Greenfield liable; (3) Greenfield was directly negligent in exercising and failing to exercise its retained control over the conduct of plaintiff's employer, that control evidenced by the presence of two of Greenfield's employees and one of Greenfield's subcontractors in Decker's plant full time for two months; (4) Greenfield was directly negligent through the breach of a duty assumed by contract with the City of Flint to provide plaintiff a safe workplace; and (5) Greenfield was directly negligent in failing to provide both Greenfield employees and Decker employees who worked together a safe common work area in the Decker plant in the weeks before the accident. On March 7, 1985, the court granted the motion for summary disposition of Hubbell, Roth & Clark, Inc. On August 5, 1985, the court granted the motion for summary disposition of the City of Flint and Greenfield. Plaintiff appeals only from the grant of summary disposition as to Greenfield.

Plaintiff first claims that summary disposition was improper inasmuch as this was a negligence action. Plaintiff correctly notes the various rules pertaining to summary disposition: the court must give the benefit of any reasonable doubt to the opposing party, inferences are to be drawn in favor of the party opposing the motion, courts are liberal in finding that genuine issues of material fact exist, a motion for summary disposition should be granted only where it is obvious that the nonmoving party's case is subject to some deficiency which cannot be overcome, and the court is not allowed to make findings of fact or to weigh the credibility [163 MICHAPP 39] of affiants or deponents. Plaintiff claims that plaintiffs "did not get the benefits of these limitations on the granting of summary disposition to which they were entitled," and that, therefore, the order granting Greenfield's motion for summary disposition should be reversed.

The rule for granting a motion for summary judgment pursuant to GCR 1963, 117.2(3), now motion for summary disposition pursuant to MCR 2.116(C)(10), was succinctly stated in Linebaugh v. Berdish, 144 Mich.App. 750, 753-754, 376 N.W.2d 400 (1985):

"A motion for summary judgment under GCR 1963, 117.2(3) asserts that no genuine issue of material fact exists. Such a motion for summary judgment should not be granted when there is an issue of material fact, since the motion tests the factual support for plaintiff's claim. The trial court must consider the affidavits submitted, pleadings, depositions, admissions and documentary evidence. The opposing party must show that a genuine issue of disputed fact exists. The test is whether the kind of record which might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ. This Court is liberal in finding a genuine issue of material fact." (Citations omitted.)

The motion must not be granted unless the court is satisfied that it is impossible to support the claim at trial because of some deficiency which cannot be overcome. Dzierwa v. Michigan Oil Co., 152 Mich.App. 281, 284, 393 N.W.2d 610 (1986). After a thorough review of the record, we are satisfied that summary disposition in favor of Greenfield was proper in this case and that the court correctly applied all the rules of summary disposition. There was no dispute as to the facts [163 MICHAPP 40] leading up to and including the accident. Thus, the only question is whether Greenfield was entitled to judgment as a matter of law. As will be seen in the remainder of this opinion, Greenfield was entitled to judgment as a matter of law on each of plaintiff's five counts.

Plaintiff first claims that the court erred in holding that Greenfield owed no duty to plaintiff as a matter of law. Plaintiff claims that Greenfield owed a duty to plaintiff because representatives of Greenfield came to Decker's plant to encourage Decker to rush completion of the machine and to familiarize themselves with the operation and maintenance of the equipment.

In his deposition, Angelo DiPonio, president of Greenfield, testified: "We had nothing to do with any assembling of the machine, it was totally his [Decker's] responsibility, his work; paid him so much for a completed machine." Carl W. Decker stated in his deposition that Greenfield did not supervise or direct the methods of fabrication at Decker's plant and did not tell Decker how to run his shop.

Plaintiff bases his duty argument on (1) Greenfield's negligence in taking too much time to order the machinery and (2) Greenfield's negligence in forcing Decker to rush the job by placing Greenfield's employees in Decker's plant. The trial court rejected these theories, stating that Greenfield owed no duty to plaintiff. We agree.

The concept of duty was explained in Duvall v. Goldin, 139 Mich.App. 342, 347, 362 N.W.2d 275 (1984), lv. den. 422 Mich. 976 (1985):

"It is equally well settled that in a negligence action the threshold question of duty is an issue of law for the court's resolution. Prosser, Torts (4th ed), Sec. 53, p 324; Elbert v Saginaw, 363 Mich 463; [163 MICHAPP 41] 109 NW2d 879 (1961). A duty arises from the relationship of the parties and involves a determination of whether the defendant has any obligation to avoid negligent conduct for the benefit of the plaintiff. Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977).

"In Prosser's terms, the question is 'whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other.' Prosser, supra, Sec. 37, p 206. It is apparent that resolution of the 'duty' issue determines the existence and not the nature or extent of the actor's obligation. Although somewhat interrelated, those latter concepts are more properly considered in the evaluation of the actor's conduct in relation to the general and specific standards of care. See, Moning, supra. Here, we must focus on the issue of duty, for without a legal duty there is no actionable negligence. Or, stated another way, without duty, an individual will not be held liable for his negligent conduct."

In asserting that Greenfield owed a duty to plaintiff, plaintiff has cited no case to support his theory that one who orders material to be manufactured has a duty to give the manufacturer sufficient lead time in order to manufacture the articles and has a duty not to encourage the manufacturer to rush the job to completion. We agree with the trial court that no duty exists under the circumstances of this case.

Next, plaintiff claims that the...