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STATE OF MICHIGAN
COURT OF APPEALS


MARK MILLER, Plaintiff-Appellant, v E.W. BLISS COMPANY, INC. and LEAR SEATING CORPORATION, Defendants-Appellees.

UNPUBLISHED March 14, 2000

No. 209017 Oakland Circuit Court LC No. 96-514389-NO

Before: O'Connell, P.J., and Murphy and Jansen, JJ. PER CURIAM. Plaintiff appeals as of right from orders granting summary disposition in favor of defendants Lear Seating Corporation (Lear) and E. W. Bliss Company, Inc. (Bliss). We affirm. Plaintiff suffered an injury to his hand while operating a press manufactured by defendant Bliss. Plaintiff's employer, Stramco, was producing brackets for defendant Lear. Plaintiff alleged that Bliss was liable for the unsafe condition of the press, and that Lear was vicariously liable for Stramco's negligence in allowing unsafe operation of the press. The trial court granted defendants' separate motions for summary disposition pursuant to MCR 2.116(C)(10).1 We review the trial court's decision de novo to determine whether any genuine issue of material fact exists that would prevent entering judgment for defendants as a matter of law. Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998). In making this determination, we must view the documentary evidence presented to the trial court in a light favoring plaintiff, the nonmoving party. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). We also bear in mind that this Court is liberal in finding a genuine issue of material fact. Marlo Beauty Supply, Inc v Farmers Ins Group, 227 Mich App 309, 320; 575 NW2d 324 (1998). Plaintiff first argues that the trial court prematurely granted Lear's motion for summary disposition before discovery was completed. However, our review of the trial court's scheduling orders reveals that the discovery period had closed by the time of the hearing on Lear's motion. In any event, plaintiff failed to adequately specify what factual support would be uncovered during any remaining

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discovery. Accordingly, summary disposition was not premature. Hasselbach v TG Canton, Inc, 209 Mich App 475, 482; 531 NW2d 715 (1994). Plaintiff next argues that the trial court erred in granting Lear's motion for summary disposition. Plaintiff maintains that he presented evidence that raised a genuine issue of material fact regarding whether Lear maintained control over Stramco's production of the brackets, whether the operation of a press is an inherently dangerous activity, and whether Lear negligently selected and retained Stramco in light of Stramco's poor safety record. Generally, an employer of an independent contractor is not liable for the contractor's negligence. Bosak v Hutchinson, 422 Mich 712, 724; 375 NW2d 333 (1985); Reeves v Kmart Corp, 229 Mich App 466, 471; 582 NW2d 841 (1998). However, the employer may be subject to liability where it retains control over the independent contractor's performance. Phillips v Mazda Motor Mfg (USA) Corp, 204 Mich App 401, 408; 516 NW2d 502 (1994). This exception to the general rule is actually comprised of two distinct theories of liability. Candelaria v B C General Contractors, Inc, 236 Mich App 67, 72; 600 NW2d 348 (1999). First, where the employer retains control over the method of performance, such that the person performing the work i s not an actual independent contractor, the employer may be vicariously liable for negligence under a respondeat superior theory. Id. at 72-73. In this case, the parties apparently agree that Stramco was an independent contractor of Lear. The second theory of liability under the "retained control" exception provides that the employer is directly liable where it unreasonably exercises its retained control over a common work area. Id. at 73-74. This theory is only available where multiple subcontractors work in the same area. Id. at 75. In this case, there was no common work area; thus, the second theory of liability is also inapplicable. In any event, plaintiff failed to present facts to support its contention that Lear retained control over Stramco's production of the brackets. In order to impose liability under the "retained control" exception, "[t]here must be a high degree of actual control; general oversight or monitoring is insufficient." Phillips, supra at 408. See also Candelaria, supra at 75-76. The employer has not sufficiently retained control by merely possessing a general right to inspect the progress of the work and to order the work stopped if performance is unsatisfactory. Plummer v Bechtel Construction Co, 440 Mich 646, 660-661; 489 NW2d 66 (1992). Safety inspections and general oversight are not enough; the employer must retain "at least partial control and direction of actual construction work . . . ." Samodai v Chrysler Corp, 178 Mich App 252, 256; 443 NW2d 391 (1989). In this case, plaintiff argues that the deposition of Lear's senior buyer demonstrates that it retained significant control over Stramco's production of the brackets. However, our review of that deposition reveals that, although Lear retained the right to inspect performance and stop production if unsatisfied, Lear did not actually exercise any control over the production of the brackets. Lear only retained the right to general oversight--this is an insufficient retention of control to impose liability. Although the question whether an employer retained control is generally a question of fact for the jury, Phillips, supra at 408, plaintiff presented no evidence to raise a genuine issue of fact that would preclude summary disposition on this issue. In order to avoid summary disposition, the nonmoving party must set forth specific facts showing

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a genuine issue for trial. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999); MCR 2.116(G)(4). An employer is also vicariously liable for an independent contractor's negligence where the work to be performed is inherently dangerous. Bosak , supra at 724; Kubisz v Cadillac Gage Textron, Inc, 236 Mich App 629, 633-634; 601 NW2d 160 (1999). Work is inherently dangerous where it necessarily involves danger to others absent great care, or where it involves a "peculiar risk" or "special danger" that requires special precautions. Bosak , supra at 727-728; Phillips, supra at 406. Although this is generally a question of fact for a jury, id., the nonmoving party must nonetheless specify facts showing a genuine issue for trial in order to avoid summary disposition. Maiden, supra at 120. In this case, plaintiff failed to present evidence raising a genuine issue of material fact regarding whether the production of brackets was inherently dangerous. Plaintiff merely cites various publications providing that many injuries occur during the operation of power presses. In plaintiff's response to Lear's motion for summary disposition, he stated that he expected to be able to offer substantial expert testimony that the work was inherently dangerous. However, a mere promise to support a claim with evidence produced later is insufficient to avoid summary disposition under the court rules. Id. at 120 121. Rather, the nonmoving party must submit documentary evidence, such as affidavits, depositions, or admissions, that raise a genuine issue of material fact. Id.; MCR 2.116(G)(4). In the absence of documentary evidence that the work was inherently dangerous, we conclude that plaintiff failed to raise a genuine issue of fact on this issue. We also note that this Court has previously declined to declare that the operation of a power press is inherently dangerous. See Bradford v General Motors Corp, 123 Mich App 641, 646; 333 NW2d 109 (1983). Plaintiff, relying on 2 Restatement Torts, 2d,

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