Johnson v. Turner Construction Co.

198 Mich. App. 478 (1993) 499 N.W.2d 27

JOHNSON
v.
TURNER CONSTRUCTION COMPANY

Docket No. 131950.

Michigan Court of Appeals.

Submitted December 10, 1992, at Detroit. Decided March 1, 1993, at 10:15 A.M.

Conway & Mossner, P.C. (by Michael A. Conway), for the plaintiff.

Harvey, Kruse, Westen & Milan, P.C. (by John A. Kruse), for Turner Construction Company.

Before: SHEPHERD, P.J., and BRENNAN and L.P. BORRELLO,^[*] JJ.

BRENNAN, J.

Plaintiff appeals as of right from an August 1, 1990, order granting summary disposition to defendant Turner Construction Company. We reverse and remand for further proceedings consistent with this opinion.

On January 25, 1986, plaintiff, an employee of Detroit Cornice and Slate Company, fell through a hole in the roof of a building while installing roofing. Detroit Cornice was hired as a subcontractor by Turner Construction Company, the general contractor, to work on the building, which was owned by the City of Detroit. Plaintiff subsequently filed suit against Turner and the City of Detroit. The trial court granted summary disposition to Turner, finding that Turner owed plaintiff no duty as a matter of law because there was no evidence that Turner retained control of the work or that the area where plaintiff fell was a common work area at the time he was injured. This appeal followed.

The trial court apparently granted summary disposition pursuant to MCR 2.116(C)(10) because it reviewed documents in addition to the pleadings. A motion brought under this subrule tests the factual support for a claim. Kulp v Verndale Products, Inc (On Remand), 193 Mich. App. 524, 529; 484 NW2d 699 (1992). The motion may be granted only if there is no issue of material fact and the moving party is entitled to judgment as a matter of law. Id. A general contractor is not normally liable for a subcontractor's negligence. Signs v Detroit Edison Co, 93 Mich. App. 626, 632; 287 NW2d 292 (1979). However, a general contractor may be held liable when it retains control of the work. Id., p 638. Furthermore, a general contractor may be found liable if it fails reasonably to guard against readily observable, avoidable dangers in the common work areas that create a high degree of risk to a number of workers. Funk v General Motors Corp, 392 Mich. 91, 104; 220 NW2d 641 (1974); Plummer v Bechtel Construction Co, 440 Mich. 646, 666; 489 NW2d 66 (1992).^[1] Whether a duty exists is a question of law for the court to decide. Janice v Hondzinski, 176 Mich. App. 49, 56; 439 NW2d 276 (1989).

Plaintiff argues that the court erred in determining that Turner did not retain control of the work. In support of his argument, plaintiff points to various provisions in the parties' contract involving general oversight and safety standards. However, such provisions are insufficient to retain control. Samodai v Chrysler Corp, 178 Mich. App. 252, 256; 443 NW2d 391 (1989). Therefore, reversal is not warranted on this basis.

Plaintiff also argues that the court erred in determining that the area where he was injured was not a common work area. A review of the record in the present case reveals that the trial court did not utilize the proper test in determining whether plaintiff was injured in a common work area. The trial court held that "maybe at some subsequent date, it would be a common work area to other subs, but it certainly wasn't at the time of this accident." Contrary to the trial court's holding, it is unnecessary for other subcontractors to be working at the site on the day of the accident for a location to be a common work area. All that is required is that two or more subcontractors will eventually work in the area. Erickson v Pure Oil Corp, 72 Mich. App. 330, 337; 249 NW2d 411 (1976). Accordingly, we reverse the trial court's decision and remand in order for the trial court to apply the proper test in determining whether plaintiff was injured in a common work area.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] This is true regardless of the amount of control the general contractor retained because inherent in the general contractor-subcontractor relationship is the general contractor's supervisory and coordinating authority wherein ultimate responsibility for job safety in common work areas is placed. Funk, supra, p 104; Erickson v Pure Oil Corp, 72 Mich. App. 330, 335; 249 NW2d 411 (1976).