Ghaffari v. Turner Construction Co. , 268 Mich. App. 460 ( 2006 )

708 N.W.2d 448 (2005) 268 Mich. App. 460

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 & Partition Company, Defendant, and
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.

Docket Nos. 240025, 241532.

Court of Appeals of Michigan.

Submitted August 4, 2005, at Lansing. Decided October 20, 2005, at 9:00 a.m. Released for Publication January 6, 2006.

Marshall Lasser, Southfield, for Louis Ghaffari.

Harvey Kruse, P.C. (by James E. Sukkar, Barry B. Sutton, and Julie Nichols), Troy, for Hoyt, Brum & Link.

Thomas P. Murray, Jr. & Associates (by Cynthia Stoddard Fitzgerald), Grand Rapids, for Guideline Mechanical, Inc.

Before: OWENS, P.J., and BANDSTRA and SCHUETTE, JJ.

(ON REMAND)

PER CURIAM.

This case is before us on remand from the Supreme Court. Ghaffari v. Turner Constr. Co., 473 Mich. 16, 699 N.W.2d 687 (2005) (Ghaffari II). In our earlier opinion, Ghaffari v. Turner Constr. Co., 259 Mich.App. 608, 676 N.W.2d 259 (2003) (Ghaffari I), we unanimously affirmed the trial court's grant of summary disposition in favor of defendants Turner Construction Company (Turner); Hoyt, Brum & Link (Hoyt); and Guideline Mechanical, Inc. (Guideline), on three separate grounds. First, we found that neither the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq., nor the federal Occupational Safety and Health Act (OSHA), 29 USC 651 et seq., imposed a statutory duty in a negligence context on defendants. Ghaffari I, supra at 612-613, 676 N.W.2d 259. Second, we found that the pipes on the floor, over which plaintiff tripped, were an open and obvious condition and we extended the open and obvious danger doctrine to claims of general-contractor liability to preclude plaintiff's suit.^[1]Id. at 614-615, 676 N.W.2d 259. Third, with respect to Turner, we noted that a general contractor is normally not liable for a subcontractor's negligence, and we found that none of the exceptions to the general rule of nonliability—retention of supervisory control, dangers occurring in common work areas, and inherently dangerous activities—applied in the instant case.^[2]Id. at 615-617, 676 N.W.2d 259.

The Supreme Court disagreed and reversed the decision of this Court, concluding that the open and obvious danger doctrine did not apply to a claim brought under the common work area doctrine. Ghaffari II, supra at 31, 699 N.W.2d 687. In doing so, the Supreme Court directed:

On remand, the Court shall first consider whether a genuine issue of 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. 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 [v. Union-Commerce Assoc., 470 Mich. 460, 683 N.W.2d 587 (2004)].

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. [Id. at 30-31, 699 N.W.2d 687.][^[3]]

A trial court's decision on a motion for summary disposition pursuant to MCR 2.116(C)(10) is reviewed de novo to determine whether a genuine issue of material fact exists or whether the moving party is entitled to judgment as a matter of law. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). Ownership is a question of fact to be determined by the fact-finder. Harwood v. Auto-Owners Ins. Co., 211 Mich.App. 249, 255, 535 N.W.2d 207 (1995). A court may not make factual findings when deciding a motion for summary disposition. Burkhardt v. Bailey, 260 Mich.App. 636, 646-647, 680 N.W.2d 453 (2004). However, when no genuine issue of material fact exists, summary disposition is appropriate. Spiek, supra at 337, 572 N.W.2d 201. And when the nonmoving party would have the burden of proof at trial, the nonmoving party must establish that a genuine issue of material fact exists by admissible documentary evidence. Quinto v. Cross & Peters Co., 451 Mich. 358, 362-363, 547 N.W.2d 314 (1996); MCR 2.116(G)(6).

Here, Brian Muir from Guideline, Duncan Wilson and Matthew Ressler from Turner, and David Kunath from Hoyt testified that Guideline and Hoyt both used the type of pipe over which plaintiff tripped. Muir and Kunath testified that as far as they knew, Guideline and Hoyt were the only subcontractors who used that type of pipe at the job site. Thus, the evidence indicated that the pipes were owned by either Guideline or Hoyt.

Muir emphatically denied that the pipes belonged to Guideline; he stated that Wilson informed him at the beginning of the project that Guideline could not store its pipes inside the building, and that Wilson assigned him an area along the fence outside to be used as a "lay down" area.^[4] Plaintiff acknowledged he was aware that Guideline stored its pipes outside. Wilson speculated that at least one of the pipes belonged to Hoyt because of the fixture on the end of the pipe. And Muir testified that Hoyt used as its lay down area the area in which plaintiff was injured.

In contrast, Kunath testified that it was unlikely that the pipes belonged to Hoyt; it was Hoyt's usual practice to store pipes in pipe racks on scaffolding, and he stored the pipes according to his company's usual practice because it was easier to sort and move the pipes. He could not, however, be completely sure that the pipes were Guideline's. Although Ressler initially assumed the pipes belonged to Hoyt, he agreed that they could have belonged to Guideline. Michael Wanserski, another subcontractor, speculated that the pipes belonged to Guideline because the pipes looked like plumbers' material, and Guideline was the plumbing subcontractor. Nevertheless, Wanserski also acknowledged that at least one of the pipes possibly did not belong to Guideline but belonged to the "sprinkler fitter contractor."

Most of the deposition testimony merely indicated the witnesses' speculation after the fact with respect to ownership of the pipes. Speculation and conjecture are insufficient to create an issue of material fact. Detroit v. Gen. Motors Corp., 233 Mich.App. 132, 139, 592 N.W.2d 732 (1998). When the speculative testimony is disregarded, the only testimony that remains is that of Muir—who emphatically denied ownership of the pipes—and plaintiff—who admitted he knew Guideline stored its pipes outside. Therefore, we find that plaintiff failed to establish an issue of material fact regarding whether Guideline owned the pipes, and we conclude that the court properly granted Guideline summary disposition on this ground.

The next issue we must address is whether Hoyt owed plaintiff a duty under Fultz. Whether a defendant owes a duty toward a plaintiff is a question of law that is reviewed de novo. Fultz, supra at 463, 683 N.W.2d 587. The issue in Fultz was whether a plaintiff could establish that she was owed a duty as a result of a contract to which she was not a party. Id. at 462-463, 683 N.W.2d 587. Similarly to the plaintiff in Fultz, plaintiff here has failed to produce a contract to which he was a party that would give rise to a duty owed him by Hoyt. In resolving this issue in Fultz, the Supreme Court stated:

[L]ower courts should analyze tort actions based on a contract and brought by a plaintiff who is not a party to that contract by using a "separate and distinct" mode of analysis. Specifically, the threshold question is whether the defendant owed a duty to the plaintiff that is separate and distinct from the defendant's contractual obligations. If no independent duty exists, no tort action based on a contract will lie. [Id. at 467, 683 N.W.2d 587.]

Hence, the first question is whether Hoyt owed plaintiff a duty separate and distinct from its contractual obligations. Generally, "whether a duty exists depends in part on foreseeability: whether it was foreseeable that a defendant's conduct may create a risk of harm to another person and whether the result of that conduct and intervening causes was foreseeable." Schultz v. Consumers Power Co., 443 Mich. 445, 464, 506 N.W.2d 175 (1993) (Griffin, J., dissenting), citing Buczkowski v. McKay, 441 Mich. 96, 101, 490 N.W.2d 330 (1992), and McMillan v. State Hwy. Comm., 426 Mich. 46, 61-62, 393 N.W.2d 332 (1986). Although a subcontractor has no duty under the common work area doctrine to make a work site safe for the employees of another subcontractor, Hughes v. PMG Bldg., Inc., 227 Mich.App. 1, 12, 574 N.W.2d 691 (1997), 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, Johnson v. A & M Custom Built Homes of West Bloomfield, PC, 261 Mich.App. 719, 722, 683 N.W.2d 229 (2004). See also Fultz, supra at 468-469, 683 N.W.2d 587 (distinguishing between a failure to remove snow and removal of snow in a manner that created a new hazard).^[5]

The act of placing pipes in a passageway of a busy and crowded construction site clearly could have caused unreasonable danger to the person or property of other construction workers. Johnson, supra. Moreover, the type of injury plaintiff suffered would have been a foreseeable result of such an act. Schultz, supra. Nevertheless, Chris Mamp, plaintiff's supervisor, indicated that at the time the pipes appeared, the archway was boarded up. And plaintiff acknowledges in his brief on appeal that the pipes were placed in a storage area that later became a passageway. Therefore, at the time the pipes appeared, the area was merely a storage area rather than a passageway. The foreseeability of someone slipping or tripping on pipes lying next to a wall in a storage area is not nearly as apparent.

Plaintiff argues that Hoyt had a duty to remove the pipes once the boards were removed from the archway. However, a failure to act does not give rise to a separate legal duty in tort. Fultz, supra at 469, 683 N.W.2d 587. Therefore, Hoyt had no actionable duty to remove the pipes. Unless a defendant owes a legal duty to a plaintiff, there can be no tort liability. Beaty v. Hertzberg & Golden, PC, 456 Mich. 247, 262, 571 N.W.2d 716 (1997). Therefore, in accordance with the Supreme Court's directive, we dismiss Hoyt from the suit. We decline to address Hoyt's remaining arguments because they fall outside the scope of the Supreme Court's order remanding this matter.

Remanded to the trial court for further proceedings against Turner only. We do not retain jurisdiction.

NOTES

[1] Although plaintiff only appealed this ground with respect to the trial court's dismissal of Turner, we addressed the open and obvious danger doctrine with respect to all three defendants. Id. at 614, n. 2, 676 N.W.2d 259.

[2] In Ormsby v. Capital Welding, Inc., 471 Mich. 45, 49, 684 N.W.2d 320 (2004), an opinion issued after our decision in Ghaffari I, the Michigan Supreme Court clarified that the "retained control" doctrine was not a separate exception to general contractor liability, but rather the "retained control" doctrine merely indicated that a landowner who sufficiently retained control over a construction project could be held to the same level of care as the general contractor under the common work area exception. Nevertheless, this distinction did not affect our earlier decision on this issue and, regardless, is not before us on remand.

[3] In its order, the Supreme Court noted that neither Hoyt nor Guideline faced liability under a premises liability theory or the common work area doctrine because neither was a general contractor or a property owner. Ghaffari II, supra at 31, n. 7, 699 N.W.2d 687.

[4] Testimony indicated that a lay down area is an area where contractors store material before it is installed.

[5] Although Hoyt questions the continuing validity of Johnson given the Supreme Court's decision in Fultz, we find no inconsistency. Both opinions indicate that when a defendant acts in a manner that places others in greater danger, the defendant may be held liable for the action.