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STATE OF MICHIGAN COURT OF APPEALS

MICHAEL SANDERSON and AMY SANDERSON, Plaintiffs-Appellants, v CAHILL CONSTRUCTION COMPANY, Defendant, and SKYLINE CONCRETE FLOOR CORPORATION, Defendant-Appellee.

UNPUBLISHED April 5, 2011

No. 294939 Macomb Circuit Court LC No. 2008-003373-NO

Before: K. F. KELLY, P.J., and GLEICHER and STEPHENS, JJ. PER CURIAM. Plaintiff Michael Sanderson, a skilled carpenter, fell from a workplace scaffold and shattered his elbow. The accident occurred when a leg of the scaffold slipped into an unguarded hole, destabilizing the structure and hurling Sanderson to the floor. Invoking Fultz v Union Commerce Assoc, 470 Mich 460; 683 NW2d 587 (2004), the circuit court foreclosed Sanderson's tort claim against defendant Skyline Concrete Floor Corporation (Skyline), which created the hole. Specifically, the circuit court found that Skyline owed "no independent duty" apart from its contract with Cahill Construction Company (Cahill), the building site's general contractor. This Court granted an application for leave to appeal filed by plaintiffs Michael Sanderson and Amy Sanderson.1 Because record evidence gives rise to a genuine issue of

Sanderson v Cahill Constr Co, unpublished order of the Court of Appeals, entered 2/26/10 (Docket No. 294939). The singular Sanderson hereafter will refer to plaintiff Michael Sanderson.

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material fact regarding whether Skyline breached a common-law duty of care, we now reverse the circuit court's grant of summary disposition to Skyline and remand for further proceedings. Sanderson worked as a commercial carpenter for Pontiac Ceiling and Partition Company (Pontiac), a subcontractor to Cahill. On the day of the accident, Sanderson and a coworker were framing in a drop drywall ceiling at a new shopping mall. Sanderson climbed onto a one-person scaffold owned by Pontiac. When he reached the top platform, one of the scaffold's legs slipped into a hole in the concrete floor, tilting the scaffold and pitching Sanderson to the ground. A coworker described the hole as approximately one foot in diameter and eight inches deep. Skyline poured the concrete floor and fashioned the hole for later use as a drain. At Sanderson's deposition, he recounted that duct work, conduit pipe and concrete forms covered the floor, obscuring visibility of the uncovered hole. Sanderson's complaint asserts that Skyline negligently failed to cover the hole, creating an unreasonable danger for other workers on the site. Skyline moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). Although the circuit court did not specify under which subrule it viewed summary disposition as appropriate, the court apparently considered documentation beyond the pleadings. We review de novo the circuit court's summary disposition ruling and apply MCR 2.116(C)(10) as the subrule guiding our review. MCR 2.116(G)(5); Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). "Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). "In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial." Walsh, 263 Mich App at 621. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West, 469 Mich at 183. A plaintiff asserting a claim of negligence must prove (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) causation, and (4) damages. Cummins v Robinson Twp, 283 Mich App 677, 692; 770 NW2d 421 (2009). "A duty of care may arise from a statute, a contractual relationship, or by operation of the common law, which imposes an obligation to use due care or to act so as not to unreasonably endanger other persons or their property." Id. The common-law duty of due care applies in the construction context, as this Court summarized in Ghaffari v Turner Constr Co (On Remand), 268 Mich App 460, 466; 708 NW2d 448 (2005): "Although a subcontractor has no duty under the common work area doctrine to make a work site safe for the employees of another subcontractor, a subcontractor has a common-law duty to act in a manner that does not cause unreasonable danger to the person or property of others." The circuit court, seemingly conflating tort and contractual duties, effectively ruled that Skyline's contract with Cahill trumped its common-law duty of care. A duty stemming from a contract is simply not equivalent to a duty arising under longstanding, common-law tort principles. Professor Prosser conceptually partitioned the two separate duties as follows: "Has the defendant broken a duty apart from the contract? If he has merely broken his contract, none can sue him but a party to it, but if he has violated a duty to others, he is liable to them." Prosser -2-

& Keeton, Torts (5th ed),

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