Markward & Karafilis, Inc. v. Detroit Osteopathic Hospital Corp. , 77 Mich. App. 728 ( 1977 )

77 Mich. App. 728 (1977) 258 N.W.2d 161

MARKWARD & KARAFILIS, INC.
v.
DETROIT OSTEOPATHIC HOSPITAL CORPORATION

Docket No. 28765.

Michigan Court of Appeals.

Decided April 1, 1977.

Martin, Bohall, Joselyn, Rowe & Jamieson, P.C., for plaintiff.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by B.I. Stanczyk and John P. Jacobs), for defendant.

Before: N.J. KAUFMAN, P.J., and V.J. BRENNAN and O'HARA,^[*] JJ.

PER CURIAM.

The plaintiff Markward & Karafilis, Inc., a general contractor, brought an action for contribution against defendant Detroit Osteopathic Hospital resulting from a judgment obtained against plaintiff concerning a building project accident. Plaintiff was required by its contract with defendant on that project to install and maintain a material hoist for the use of all trades on the project. The contract also specified that the hoist was to be in accord with industry safety standards. An employee of a subcontractor was killed while using the material hoist. The estate of the workman recovered a judgment against plaintiff.

Plaintiff in this action is attempting to shift liability for a portion of those damages to defendant hospital. The basis of the plaintiff's action is that the defendant's failure to inspect and implement safety precautions on the material hoist was a proximate cause of the workman's accident.

Defendant claimed that there was no duty to inspect or implement safety precautions on the hoist. Defendant also contended that the indemnity clause of the construction contract prevented contribution.

After a hearing, Wayne County Circuit Court Judge Joseph Rashid granted summary judgment for failure to state a claim upon which relief could be granted. GCR 1963, 117.2(1). In considering a motion for summary judgment under this provision, we accept all well-pleaded allegations as true. Martin v Fowler, 36 Mich. App. 725, 729; 194 NW2d 524 (1971). On appeal, we must decide whether defendant's failure to inspect the hoist or implement safety precautions was insufficient to sustain an action as a matter of law.

The standard we apply here was stated in Funk v General Motors Corp, 392 Mich. 91, 101-102; 220 NW2d 641 (1974):

"Ordinarily a landowner is not responsible for injuries caused by a carefully selected contractor to whom he has delegated the task of erecting a structure. Most every rule has its exceptions. This rule is distinguished by the variety of its exceptions.

"An owner is responsible if he does not truly delegate — if he retains ``control' of the work — or if, by rule of law or statute, the duty to guard against the risk is made ``nondelegable'.

"Inevitably it becomes a matter of judgment, case by case, where to draw the line between so-called ``delegable' and ``nondelegable' tasks and duties. In a given case, the policy question facing a court (the law of torts is largely judge-made) is whether on the facts presented the public interest warrants imposition upon a person who has delegated a task the duty to guard against risks implicit in the performance of the task."

There is no question in this case that the risk was delegable. The specification of safety requirements alone is insufficient as a matter of law to constitute "control" of the work. See Erickson v Pure Oil Corp, 72 Mich. App. 330; 249 NW2d 411 (1976).

Affirmed.

NOTES

[*] Former Supreme Court Justice sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.