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Michigan Supreme Court Lansing, Michigan

Opinion
LOUIS GHAFFARI, Plaintiff-Appellant, v TURNER CONSTRUCTION COMPANY, Defendant, Cross-Plaintiff, Third Party Plaintiff-Appellee, and HOYT, BRUM & LINK, and GUIDELINE MECHANICAL, INC., Defendants, Cross-Defendants-Appellees, and R.W. MEAD & SONS, INC., and CONTI ELECTRIC, INC., Third-Party Defendants, and ACOUSTICAL CEILING AND PARTITION COMPANY, Defendant, and

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 12, 2005

No. 124786

THE EDISON INSTITUTE a/k/a HENRY FORD MUSEUM & GREENFIELD VILLAGE,

Defendant, Third-Party Plaintiff. _______________________________________/ LOUIS GHAFFARI, Plaintiff-Appellant. v TURNER CONSTRUCTION COMPANY, Defendant, Cross-Plaintiff, Third-Party Plaintiff-Appellee, and HOYT, BRUM & LINK, Defendant, Cross-Defendant-Appellee, and GUIDELINE MECHANICAL, INC., Defendant, Cross-Defendant, and ACOUSTICAL CEILING & PARTITION COMPANY, Defendant, and THE EDISON INSTITUTE a/k/a HENRY FORD MUSEUM & GREENFIELD VILLAGE, Defendant, Third-Party Plaintiff, and CONTI ELECTRIC, INC., Third-Party Defendant. _______________________________________/ No. 124787

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BEFORE THE ENTIRE BENCH MARKMAN, J. The question presented is whether the "open and

obvious" doctrine has any application in a claim brought under the "common work area" doctrine. does not. I. FACTS
AND

We conclude that it

PROCEDURAL HISTORY

This case arises out of a slip and fall incident that occurred during construction of an IMAX theater at Henry Ford Museum in Dearborn. The premises were owned by the

Edison Institute, better known as the Henry Ford Museum and Greenfield Village (Edison). contract with defendant Edison signed a construction Turner Construction Company

(Turner), whereby Turner agreed to act as the construction manager for the project. then negotiated trade Pursuant to this contract, Turner contractor agreements with

subcontractors on behalf of Edison, and administered them as the construction manager. Plaintiff, an employee of electrical subcontractor

Conti Electric, Inc., was injured on the construction site when he tripped on pipes left on the floor of a storage area that he alleged had served as a passageway.

Plaintiff further alleged that the pipes were owned by one of two other subcontractors: Inc. either defendant the Guideline

Mechanical,

(Guideline), 3

pipefitting

subcontractor, or defendant Hoyt, Brum & Link (Hoyt), the plumbing subcontractor. Plaintiff testified that he had rounded a corner and walked through an archway that, until recently, had been covered with plywood. the pipes as he Plaintiff claimed that he slipped on the storage area from behind

entered

gangboxes that stood in the walkway.

He testified that

other pipes closer to eye level distracted his vision as he rounded the gangboxes. The trial court granted defendants' motion for summary disposition on the ground that the hazard was open and obvious, citing this Court's then-recent decision in Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001). The trial court also granted summary disposition to

Guideline on the additional ground that no evidence was presented to indicate that the pipes in question belonged to Guideline. The Court of Appeals affirmed in an

unpublished per curiam opinion, which was later published at defendants' request. Ghaffari v Turner Constr Co, 259

Mich App 608; 676 NW2d 259 (2003). We granted leave to appeal and directed the parties to address whether the open and obvious doctrine has any

application in a claim under the common work area doctrine described in Ormsby v Capital Welding, Inc, 471 Mich 45, 54; 684 NW2d 320 (2004), and, if so, how the open and 4

obvious doctrine could be reconciled with Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1992), in which this Court concluded that the goal of safety in the workplace of would be enhanced by the application See Ghaffari of v

principles

comparative

negligence.

Turner Constr Co, 471 Mich 915 (2004). II. STANDARD
OF

REVIEW

This case requires that we consider whether the open and obvious doctrine is applicable of a in the construction is a

setting.

The

applicability

legal

doctrine

question of law that we review de novo. 465 Mich 149, 156; 631 NW2d 694 (2001). novo a circuit court's grant of

People v Thousand, We also review de disposition.

summary

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). III. ANALYSIS The question presented is whether a general

contractor,1 when confronted with potential liability for a job site injury suffered by the employee of a

subcontractor, may avoid liability on the basis that the condition giving rise to the injury was open and obvious.

Although, under the terms of its contract with the premises owner, Turner was in fact a "construction manager," and not a "general contractor," the distinction is one without a difference for purposes of our analysis in this case. Because our common work area jurisprudence has heretofore referred to "general contractors," we will continue to use that term. 5


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In order to answer this question, we must first examine two relevant common-law doctrines: the common work area

doctrine and the open and obvious doctrine. A. The Common Work Area Doctrine

At common law, property owners and general contractors generally could not be held liable for the negligence of independent subcontractors and their employees. However,

in Funk v Gen Motors Corp, 392 Mich 91, 104; 220 NW2d 641 (1974), this Court departed from this traditional framework and set forth an exception to the general rule of

nonliability in cases involving construction projects: We regard it to be part of the business of a general contractor to assure that reasonable steps within its supervisory and coordinating authority are taken to guard against readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen. [Emphasis added.] We also articulated several practical considerations that supported this exception: Placing ultimate responsibility on the general contractor for job safety in common work areas will, from a practical, economic standpoint, render it more likely that the various subcontractors being supervised by the general contractor will implement or that the general contractor will himself implement the necessary precautions and provide the necessary safety equipment in those areas. [A]s a practical matter in many cases only the general contractor is in a position to coordinate work or provide expensive safety features that protect employees of many or all of the subcontractors. . . . [I]t must be 6


recognized that even if subcontractors and supervisory employees are aware of safety violations they often are unable to rectify the situation themselves and are in too poor an economic position to compel their superiors to do so. [Id. (internal citation and quotation marks omitted).] In Ormsby, supra at 54, we listed the elements of what had become known since Funk as the common work area

doctrine: That is, for a general contractor to be held liable under the "common work area doctrine," a plaintiff must show that (1) the defendant, either the property owner or general contractor, failed to take reasonable steps within its supervisory and coordinating authority (2) to guard against readily observable and avoidable dangers (3) that created a high degree of risk to a significant number of workmen (4) in a common work area. [Emphasis added.] We made clear in Ormsby that only when this test is satisfied may a general contractor be held liable for the alleged negligence of the employees of independent Id. at 55-

subcontractors with respect to job site safety. 56.

The failure to satisfy any one of these elements is Id. at 59.

fatal to a Funk claim. B. In general,

The Open and Obvious Doctrine a premises possessor must exercise

reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the land. Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995). However, this duty does not generally require the 7


removal of open and obvious dangers.

In Lugo, supra at

516-517, we rearticulated the open and obvious doctrine: [W]here the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee. * * * In sum, the general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers, but, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk. [Internal citations omitted; emphasis added.] We also stated that the open and obvious doctrine

should not be viewed as "some type of `exception' to the duty generally owed invitees," but rather viewed "as an integral part of the definition of that duty." C. Id. at 516.

Compatibility of the Two Doctrines

Defendants urge us to find that the two doctrines--the common work area doctrine and the open and obvious

doctrine--are compatible and can be applied harmoniously. However, as noted above, for a general contractor to be held liable under the common work area doctrine, a

plaintiff must show that the general contractor has failed "to guard against readily observable and avoidable dangers . . . ." Ormsby, supra at 54. Yet, one could replace the

phrase "readily observable and avoidable" as used in Ormsby 8


with the phrase "open and obvious" without significantly changing the meaning of this passage. Thus, an

irreconcilable conflict immediately arises:

one doctrine

(common work area) imposes an affirmative duty to protect against hazards that are open and obvious, while the other (open and obvious) asserts that no duty exists if the

hazards are open and obvious.2

Because of this logical

conflict, we have no difficulty in concluding that the open and obvious doctrine and the common work area doctrine are incompatible. The Michigan doctrine Court courts into of Appeals not recognized expanded the in this case that

have a

open

and

obvious context.

general-contractor

liability

Ghaffari, supra at 614.

However, the Court then proceeded

to conclude that "there is nothing in the history of the open and obvious danger doctrine . . . to suggest that the doctrine should not apply in other contexts." this conclusion, we respectfully disagree. In addition to the logical conflict noted above, we recognize that there are several critical distinctions Id. With

between the two doctrines that demonstrate that they serve different objectives. First, our jurisprudence makes clear

At least, absent "special aspects." 517-518. 9


2

Lugo, supra at

that the two doctrines are applicable in entirely different contexts. The open and obvious doctrine is specifically Lugo, supra at 516-

applicable to a premises possessor. 517.

The common work area doctrine, meanwhile, is not to the premises possessor, but rather to a

applicable

general contractor whose responsibility it is to coordinate the activities of an array of subcontractors. See,

generally, Funk and Ormsby. In Perkoviq v Delcor Homes--Lake Shore Pointe, Ltd, 466 Mich 11; 643 NW2d 212 (2002), this Court recognized the distinction inherent in these two contexts. In Perkoviq,

the plaintiff worker was injured when he fell from the roof while painting a partially constructed house. He brought suit against the defendant, the owner and general

contractor of the subdivision development, on both premises liability and contractor liability theories. the Court of Appeals conclusion that In reversing issues of

genuine

material fact existed regarding the plaintiff's premises liability claim, we observed: The Court of Appeals seems to have confused general contractor liability with the liability of a possessor of premises. In explaining its conclusion that defendant could be liable on a premises liability theory, the Court used analysis that was irrelevant to that theory and would be applicable only to a claim against a general contractor. . . . The fact that defendant may have additional duties in its role as general contractor, 10

however, does not alter the nature of the duties owed by virtue of its ownership of the premises. [Id. at 19.] Thus, contrary to the Court of Appeals analysis, Perkoviq makes clear that different duties are owed under each

doctrine, and that the legal analyses employed in the two contexts are distinct. Moreover, Ormsby itself implicitly recognized the

fundamental difference between these two contexts. premises generally owner not who liable hires for an independent that

While a is

contractor the

injuries

contractor

negligently causes,3

we noted in

Ormsby

that a premises

owner may still be liable for injuries to workers under limited circumstances. Where the premises owner retains

sufficient control over the construction project, the owner "steps into the shoes of the general contractor and is held to the same degree of care as the general contractor." Ormsby, supra at 49. In such a case, the owner would face

liability under the "retained control doctrine," which we described as standing for the proposition that when the Funk "common work area doctrine" would apply, and the property owner has sufficiently "retained control" over the construction project, that owner steps into the shoes of the general contractor and is held to the same degree of care as the general

See, e.g., DeShambo v Anderson, 471 Mich 27, 31; 684 NW2d 332 (2004). 11


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contractor. Thus, the "retained control doctrine," in this context, means that if a property owner assumes the role of a general contractor, such owner assumes the unique duties and obligations of a general contractor. [Id. (emphasis added).] Ormsby made clear that the owner's liability in such a

situation would stem not from the owner's status as the premises possessor, but from his or her status as the de facto general contractor. Ormsby recognized the In making such a distinction, between the duties a

distinction

premises possessor owes by virtue of his or her status as a possessor, and the duties owed by virtue of retaining Because

control as a contractor over a common work area.

these duties--articulated in the open and obvious doctrine and the common work area doctrine, respectively--are

distinct, so too must be the doctrines that articulate such duties.4 A second distinction between the two doctrines that our cases make apparent concerns the issue of worker

We note that the retained control doctrine is not implicated in the instant case, because none of the remaining defendants is the premises owner. We refer to that doctrine only to point out its recognition that the nature of the liability faced by one who possess premises, and by one who controls premises during their construction, are distinct. 12


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safety.5

We note that the application of the open and

obvious doctrine in the construction setting would conflict with the reasoning underlying this Court's holding in

Hardy, because it would largely nullify the doctrine of comparative effectively liability negligence restore abolished in the construction bar to a setting, and

the when

complete Hardy

contractor's contributory

eliminated

negligence in that setting. In Hardy, supra at 39, this Court addressed "whether the Funk policy of promoting safety in the workplace would be undermined of or enhanced by the application In of the

principles

comparative

negligence."

adopting

comparative negligence, we observed: In Funk, this Court found the total bar of contributory negligence to be inconsistent with the public policy of promoting safety in the workplace. The Court refused to allow a general contractor and a landowner to "avoid" liability "by pointing to the concurrent negligence of the injured worker in using the [unsafe] equipment." Before Funk, the contractor could entirely avoid

While the foundational consideration underlying the common work area doctrine is one of job site safety, safety concerns of course are not limited to the construction setting. While our opinion today distinguishes the common work area doctrine from the open and obvious doctrine, we emphasize our view that the latter doctrine also promotes safety concerns, albeit in a different manner. As is apparent from our discussion later in this opinion of the hazards typically found in a construction site, what constitutes "ordinary care" in a premises liability setting may differ substantially from what constitutes "ordinary care" in the construction setting. 13


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liability by convincing the finder of fact that the plaintiff was even 1% negligent. Apparently it was feared that some contractors might succumb to the temptation of employing skilled defense counsel instead of adequate safety devices. . . . "To allow defendants in this case to invoke the protection of the contributory negligence doctrine would be tantamount to subverting the very safety concerns that the . . . Funk court[] extolled as of paramount importance. Such a position might allow a manufacturer to escape its duty of due care . . . ." * * * In stark contrast, the defense of comparative negligence never allows a contractor to entirely "avoid" liability and thus "escape" the duty of due care. Under Placek [v Sterling Hts, 405 Mich 638; 275 NW2d 511 (1979)], the defendant must pay the full percentage of damages caused by his negligence. [Id. at 39-40 (citations omitted).] The adoption of the open and obvious doctrine in the general contractor setting would tend to thwart the goals of workplace safety advanced by our decisions in Funk and Hardy. Court If we were to adopt the rule set forth below by the of Appeals, we would effectively return to a

contributory negligence regime.

In such a case, no matter

how negligent the general contractor was in creating or failing to ameliorate the hazard, the employee would be barred obvious. Hardy recognized that such bars to recovery "provide a strong financial incentive for contractors to breach the 14
from recovery because the hazard was open and

duty to undertake reasonable safety precautions." 41. Indeed, such a rule might (i.e., lead to a

Id. at

paradoxical the safety

result--the

more

egregious

obvious)

violation, the less incentive the contractor would have to ameliorate obviousness the of hazard, the because would of the bar knowledge the that

hazard

contractor's

liability for the resulting injury.

Instead, Hardy adopted

a comparative negligence rule on the grounds that such a rule retains a strong incentive for general contractors to maintain workplace safety.6 Accordingly, we believe that

Hardy supports the conclusion that the open and obvious doctrine should remain distinct from the common work area doctrine. As a third distinction between the two doctrines, we offer a final observation grounded in the nature of the different harms confronted in the realms in which each

doctrine is applicable.

In particular, there exist unique

and distinct attributes of the construction setting that would make the rules applicable in the typical premises liability setting inappropriate.

In addition, such a rule also ensures that the worker also bears responsibility for his or her own conduct. A comparative negligence regime "enhances the goal of safety in the workplace under these conditions . . . ." Hardy, supra at 41. 15


6

Construction sites typically involve the comings and goings of multiple subcontractors and their materials, a physical venue with the that any is constantly of The being subjected that to are at

alteration, evolving by

number

open

hazards

moment.

hazards

existing

construction sites are numerous and may typically come from any one of three dimensions, including from above. hazards may often be in motion. These

Loud and sudden noises may

surround and distract the construction worker, with many of these carried noises out emanating by fellow from the dangerous who may activities be near.

workers

Nonetheless, at the same time that he or she is confronted with such an environment, the construction worker must move at a business-like pace in order to carry out his or her job--one that may require considerable physical exertion, and require attention to detail and compliance with This

demanding professional standards--in a timely manner.

is in contrast to the typical premises liability case in which the open and obvious hazard is found on or near

ground level, and in which distractions, although they may sometimes exist, are of a considerably less urgent and

persistent character than those faced by the construction worker. While the of construction out worker his or still her bears work the a

responsibility

carrying

in

reasonable and prudent manner, the worker will typically 16

encounter more dangers of a more diverse character, and more distractions coming from more directions, than will persons shopping in retail establishments or walking in

parking lots or visiting the residences of others, and will generally be less able to avoid a given hazard than the typical invitee or licensee, even if the hazard may be seen after the fact as open and obvious. It is the general contractor who has the coordinating power and supervisory authority to ensure that this unusual array of physical risks does not devolve into chaos, and it is the general contractor upon whom ultimate responsibility for the safe completion of a project rests. coordinator of this activity, the general As the overall contractor is

best situated to ensure workplace safety at the least cost. Because of this position, the duty to keep common work areas safe reasonably falls on the general contractor. As our analysis today attempts to make clear, the two doctrines at issue are independent of and distinct from one another. The open and obvious doctrine serves as an

"integral part of the definition" of the duty a premises possessor owes invitees, Lugo, supra at 516, while the

common work area doctrine "is an exception to the general rule of nonliability for the negligent acts of independent subcontractors and their employees," under which "an

injured employee of an independent subcontractor [may] sue 17

the general contractor . . . ." two doctrines and involve

Ormsby, supra at 49. distinct as sets noted

The of in

completely and

plaintiffs

defendants,

therefore,

Perkoviq, different sets of duties. Thus, this contrary cases to the Court not of Appeals conclusion, the two

Court's

have

suggested

that

doctrines are compatible, but rather have made clear that the rationale and practical considerations underlying the open and obvious doctrine are separate and distinct from those that underlie the common work area doctrine. Because

we reaffirm that the two doctrines are, in fact, distinct, we hold that the to a open claim and obvious the doctrine common has no area

applicability

under

work

doctrine, and therefore the trial court erred in granting summary disposition in favor of defendants on the basis that the pipes at issue were an open and obvious hazard. D. Subcontractor Liability

The question remains regarding the liability of the defendant subcontractors, Hoyt and Guideline. argues that summary disposition should not Plaintiff have been

granted because a question of fact existed with regard to "whether defendants negligently performed their contractual obligations Plaintiff to and clean up and Hoyt remove safety hazards." the

defendant

disagree

regarding

18


relevance of our decision in Fultz v Union-Commerce Assoc, 470 Mich 460; 683 NW2d 587 (2004). Moreover, with respect to defendant Guideline, besides granting summary disposition because the condition was open and obvious, the trial court granted summary disposition on the additional ground that no evidence was presented to indicate that the pipes in question belonged to Guideline. Plaintiff argues to this Court, as he did to the Court of Appeals, that summary disposition was inappropriate with regard to Guideline, because a genuine issue of material fact was presented concerning whether it owned the pipes that caused plaintiff's fall. conclusion plaintiff's that the the open and of However, in light of its obvious Appeals doctrine never barred

claim,

Court

addressed

this alternate ground for summary disposition. Because our decision in Fultz was released nine months after the Court of Appeals decision in this case, and

because the Court did not address the matter of Guideline's ownership of the pipes, remand to the Court of Appeals is necessary for resolution of these issues. Court shall first consider whether a On remand, the issue of

genuine

material fact exists regarding Guideline's ownership of the pipes. If it concludes that no such issue exists, then it

shall affirm the trial court's grant of summary disposition for Guideline on that ground. 19 Should the Court conclude

that an issue of fact does exist, then the Court shall consider if Guideline, along with Hoyt, owed plaintiff any duty under Fultz. If the Court concludes that Hoyt, Guideline, or both owed plaintiff a duty under Fultz, the Court shall then remand to the trial court for further proceedings against the relevant subcontractor(s) and Turner. However, should

the Court conclude that the subcontractor(s) owed plaintiff no contractual duty, then it shall dismiss Hoyt and

Guideline from the suit and remand for further proceedings against Turner only.7 IV. CONCLUSION

The open and obvious doctrine has no applicability to a claim brought under the common work area doctrine. The

two doctrines are conceptually distinct, and our case law

While we decline to review plaintiff's contract-based claim of liability in advance of the Court of Appeals, we note in passing that the subcontractors face no liability under the other theories addressed in this opinion. No liability could attach under a premises liability theory, because the subcontractors were not the premises possessors. See Lugo, supra at 516-517. Nor can the subcontractors face liability under the common work area doctrine, because they did not have control of the work area. We recognized in Ormsby, supra at 56-57, that the common work area doctrine is only applicable to a general contractor or to a property owner who retains sufficient control of the work so as to act in a superintending capacity (under the "retained control" doctrine). Here, the subcontractors acted as neither. Thus, neither of these doctrines serves as a basis for imposing liability on Hoyt or Guideline. 20


7

has treated them as such.

Accordingly, the decision of the

Court of Appeals is reversed. However, because the Court of Appeals declined, on the basis of its findings regarding the applicability of the open and obvious doctrine, to review the alternate ground for summary disposition given with respect to defendant

Guideline, and because our decision in Fultz was released after the Court of Appeals decision in the instant case, we remand to that Court to determine the outstanding questions concerning the liability of the subcontractors. has resolved these questions, the Court of Once it is

Appeals

instructed to further remand to the trial court for further proceedings consistent with this opinion with regard to

Turner and, if applicable, Hoyt and Guideline. Stephen J. Markman Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr.

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