Samodai v. Chrysler Corp.

• Decision Date: 26 September 1989
• Docket Number: Docket No. 104982
• Citation: 443 N.W.2d 391,178 Mich.App. 252
• Parties: Paul SAMODAI and Josephine Samodai, Plaintiffs-Appellants, v. CHRYSLER CORPORATION, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 391

443 N.W.2d 391

178 Mich.App. 252

Paul SAMODAI and Josephine Samodai, Plaintiffs-Appellants, v. CHRYSLER CORPORATION, Defendant-Appellee.

Docket No. 104982.

Court of Appeals of Michigan.

Submitted Nov. 14, 1988.

Decided March 2, 1989.

Released for Publication Aug. 16, 1989.

Leave to Appeal Denied Sept. 26, 1989.

Kelman, Loria, Downing, Schneider & Simpson by Margaret V. Holman, Detroit, for plaintiffs-appellants.

John W. Humanic Law Offices by Martha A. Churchill, Detroit, for defendant-appellee.

Before HOLBROOK, P.J., and MICHAEL J. KELLY and BURNS, ^* JJ.

PER CURIAM.

The circuit court granted summary disposition in favor of defendant Chrysler Corporation and dismissed plaintiffs' claim for personal injuries and loss of consortium resulting from an accident on Chrysler's premises in the course of plaintiff Paul Samodai's employment with a contracting firm doing demolition and renovation work for Chrysler. We affirm.

Immediately before the accident, Samodai, standing on a wooden pallet placed on the prongs of a forklift, was elevated in order to change some temporary light bulbs suspended some twenty to twenty-five feet above the floor. Thereafter, as Samodai was being lowered, the forklift lifting mechanism malfunctioned, dislodging Samodai and causing him to fall.

Summary disposition was premised on MCR 2.116(C)(10). A motion pursuant to this subrule requires the court to determine whether there is factual support for a claim, giving the benefit of reasonable doubt to the nonmoving party. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988). Summary disposition is appropriate if the court determines on the basis of the record that it is impossible for the claim asserted to be supported by evidence at trial. Peterfish v. Frantz, 168 Mich.App. 43, 48-49, 424 N.W.2d 25 (1988). Plaintiffs argue that defendant, as the moving party, failed to meet its burden of demonstrating by affidavits, depositions, admissions, or other documentary evidence that there was no genuine issue of material fact. MCR 2.116(G)(3) and (4). We disagree. The depositions made part of the record in this case provide a sufficient factual basis for resolution of the issues raised by defendant's motion for summary disposition.

As a general rule, an owner of property is not liable to an employee of an independent contractor for negligence. Funk v. General Motors Corp, 392 Mich. 91, 101, 220 N.W.2d 641 (1974); Wolfe v. Detroit Edison Co, 156 Mich.App. 626, 627, 402 N.W.2d 16 (1986), lv den 428 Mich 865 (1987). In such situations, the actual employer of a worker is immediately responsible for job safety and for maintaining a safe work place. Funk, supra, 392 Mich. at p. 102, 220 N.W.2d 641. The two main exceptions to this general rule provide for liability if: (1) the property owner retains control over the work done and the contractor's activities or (2) the work is inherently dangerous--the work can reasonably be foreseen as dangerous to third parties. Bosak v. Hutchinson, 422 Mich. 712, 724, 375 N.W.2d 333 (1985); Wolfe, supra.

Plaintiffs claim that Samodai was engaged in an inherently dangerous activity at the time of his accident. However, this claim falters in view of the principle that the risk or danger must be recognizable in advance of the accident, more specifically, at the time of the inception of the contract. See Bosak, supra, 422 Mich. at p. 728, 375 N.W.2d 333 ("[t]hus, liability should not be imposed where a new risk is created in the performance of the work which was not reasonably contemplated at the time of the contract"). In this case, neither changing light bulbs nor operating a forklift are to be reasonably anticipated as presenting peculiar risks or special dangers. Instead, the accident appears to have resulted from a routine activity carrying a risk collateral to the nature of the anticipated job. See Bosak, supra; Samhoun v. Greenfield Construction Co, Inc, 163 Mich.App. 34, 43-44, 413 N.W.2d 723 (1987...