Szymanski v. K Mart Corp. , 196 Mich. App. 427 ( 1992 )

196 Mich. App. 427 (1992) 493 N.W.2d 460

SZYMANSKI
v.
K MART CORPORATION

Docket No. 124652.

Michigan Court of Appeals.

Decided October 20, 1992, at 9:00 A.M.

Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. (by Barry P. Waldman, George T. Fishback, and Barbara M. Robinson), for the plaintiff.

Beier Howlett (by Gerald G. White, Robert G. Waddell, and Margaret Battle Kiernan), for the defendant.

Before: GRIFFIN, P.J., and HOLBROOK, JR., and REILLY, JJ.

PER CURIAM.

Plaintiff John M. Szymanski, an employee of Cadillac Window Cleaning Company, was injured when he fell from a scaffold suspended approximately forty feet above the ground while washing windows at defendant K mart Corporation's world headquarters. Plaintiff and the two other men who were on the scaffold with him were not wearing safety belts or safety lines. Plaintiff subsequently brought suit against defendant and, after a jury trial, was awarded $1,306,250 in damages.^[1] Defendant now appeals the judgment as of right. We reverse.

I

Defendant first argues that the trial court erred in denying its motion for a directed verdict at the close of plaintiff's proofs. When ruling on a motion for a directed verdict, the trial court must determine whether the evidence is sufficient to establish a prima facie case against the defendant. Jenkins v Raleigh Trucking Services, Inc, 187 Mich App 424, 427; 468 NW2d 64 (1991). The testimony and all legitimate inferences that may be drawn therefrom are viewed in the light most favorable to the plaintiff. If reasonable jurors could honestly reach different conclusions, the motion should be denied. Id.

Generally, an employer of an independent contractor is not liable for the contractor's negligence or the negligence of its employees. Bosak v Hutchinson, 422 Mich 712, 724; 375 NW2d 333 (1985). However, an exception to the general rule exists where the work performed by the contractor is inherently dangerous. Another exception exists where the employer or landowner retains control of the work being performed by the independent contractor. Funk v General Motors Corp, 392 Mich 91, 101; 220 NW2d 641 (1974); Miller v Great Lakes Steel Corp, 112 Mich App 122, 125; 315 NW2d 558 (1982). Although the inherently dangerous activity doctrine usually applies where third parties claim injury, the doctrine has been applied where, as in this case, the claimant is an employee of the independent contractor. Bosak, supra at 724.

In this case, the trial court relied on both exceptions in denying defendant's motion for a directed verdict. First, the trial court found that the activity of working on a scaffold high above the ground was inherently dangerous. Secondly, with regard to the issue of control, the trial court noted:

K-mart gave Cadillac a store room, some equipment, the name tags, keys to the stairwell and towers, and Cadillac employees could eat in the cafeteria, there was no written contract and the work — that the employees were occasionally told what windows to clean. In this instance the signs of control are not nearly as strong as in the Funk case, but the Court will conclude once again that it's a jury question. .. .

We disagree with the trial court with regard to the issue of control. In Funk, the Court found that the defendant, General Motors Corporation, exercised an "unusually high degree of control" over the construction project on which the plaintiff was injured. Funk, supra at 105. The Court considered General Motors' supervision over some aspects of accident prevention, its extensive supervision of compliance with other contract specifications, and its overall day-to-day dominance of the project, and found that such factors supported "a finding of, if not actual, at least tacit control by General Motors of safety in the highly visible common work areas." Funk, supra at 107. See also the plurality decision in Plummer v Bechtel Construction Co, 440 Mich 646; 489 NW2d 66 (1992).

The evidence in this case does not support such a finding of control. There was no indication from the testimony that K mart directed Cadillac regarding the manner in which the job was to be performed or that K mart had any control with regard to the manner in which the scaffold was assembled and used. The absence of evidence on these factors also makes this case distinguishable from Jenkins, supra. The issue in Jenkins was whether defendant Ford Motor Company retained the right to control the activities of its independent contractor, a truck driver, and therefore could be held responsible for the improper loading of his truck that allegedly caused the plaintiff's death. As in this case, the independent contractor worked exclusively for the defendant without a written contract. However, in Jenkins, Ford not only told the independent truck driver what to haul and where to haul it, but, more importantly, Ford loaded the truck. Jenkins, supra at 428-429. Thus, there was evidence that the defendant in Jenkins, unlike defendant in the present case, had retained control over the independent contractor's activities, particularly those that allegedly caused the accident.

We also conclude that the trial court erred in denying defendant's motion for a directed verdict based on the doctrine of inherently dangerous activity.

The inherently dangerous activity doctrine provides an exception to the general rule of nonliability by the employer of an independent contractor. Under the doctrine, liability may be imposed when "the work contracted for is likely to create a peculiar risk of physical harm or if the work involves a special danger inherent in or normal to the work that the employer reasonably should have known about at the inception of the contract." Oberle v Hawthorne Metal Products Co, 192 Mich App 265, 268; 480 NW2d 330 (1991), citing Bosak. The risk or danger must be recognizable in advance, i.e., at the time the contract is made. The Court in Bosak emphasized that liability should not be imposed where a new risk is created in the performance of the work and the risk was not reasonably contemplated at the time of the contract. Bosak, supra at 728.

Similarly, liability should not be imposed where the activity involved was not unusual, the risk was not unique, "reasonable safeguards against injury could readily have been provided by well-recognized safety measures," and the employer selected a responsible, experienced contractor. Funk, supra at 110.

The activity performed by plaintiff in this case, washing windows forty feet above the ground while on a scaffold suspended from the side of a building, is activity that presents a possibility of serious injury unless special precautions are taken. However, as noted by plaintiff's expert at trial, any danger of serious physical injury from this activity could have been prevented by the use of well-recognized safety measures, i.e., safety belts and safety lines. The risk of injury was not inherent to the work being done, but was created by the failure to use well-recognized safety measures. On the basis of our reading of Funk and Bosak, we are convinced that the evidence presented at trial, even when viewed in the light most favorable to plaintiff, could not have permitted reasonable minds to conclude that the activity at issue was inherently dangerous.

Plaintiff argues that the verdict in his favor should nevertheless be upheld because the jury found defendant to be independently negligent. Although plaintiff's complaint alleges negligence on the part of defendant in failing to hire a competent contractor, failing to supervise its employees and contractors, and so on, the jury was only instructed with regard to the issues of control and inherently dangerous activity. These are the theories that plaintiff argued during his opening statement and closing argument. Accordingly, we reject plaintiff's argument on appeal.

Our resolution of the previous issues makes it unnecessary for us to address the other issues raised by defendant.

Reversed.

NOTES

[1] Plaintiff also brought suit against other defendants, including the manufacturer of the platform and the seller of the wire and clamps used to secure the scaffold. However, these suits were settled before trial.