Summary
In Dooley, the plaintiff asserted ordinary negligence claims against Northwest after he was hit by a Northwest vehicle operating near an airport terminal.
Summary of this case from Kessler v. Visteon Corp.Opinion
Case No. 01-CV-74132-DT
September 13, 2002
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Northwest Airlines, Inc.'s Motion for Summary Judgment, Pursuant to F.R.C.P. 56, filed May 21, 2002. Plaintiffs Michael L. Dooley and Patricia A. Dooley filed a Response on June 24, 2002. A Reply was filed on July 2, 2002, and a hearing was held in this matter on July 10, 2002. For the following reasons, the Court DENIES Defendant's Motion.
I. FACTS
Plaintiffs filed the instant action in Wayne County Circuit Court on September 19, 2001. Count I of the Complaint alleges that Plaintiff Michael Dooley was an employee of Mesaba Airlines working at the Detroit Metro Terminal. See Compl. at ¶ 5. On April 6, 2001, at approximately 4:00 p.m., John Doe was operating a Northwest Airlines tug cart, also known as luggage tail carts. Id. at ¶ 7. Plaintiff Michael Dooley claims that, while engaged in his normal and usual and proper occupation and standing between tail carts, John Doe started up the Northwest tug without first making proper observation and accelerated quickly. As a result, Plaintiff was knocked down, dragged, and then run over. Id. at ¶ 8.
Plaintiff Michael Dooley alleges that John Doe, and employee of Northwest Airlines, was negligent and Defendant Northwest Airlines was actively, passively and vicariously negligent. Id. at ¶ 9. Plaintiff further alleges that such negligence did proximately cause Plaintiff injuries and damages including but not limited to,
contusions, abrasions, sprains, a fracture of fractures, physical pain and suffering, mental anguish, fright and shock, denial of social pleasures and enjoyments, embarrassments and humiliation, disability including the loss of impairment of body parts, the disfigurement of body parts, aggravation of preexisting ailments and conditions, reasonable expenses for necessary medical care, treatment and services, loss of earning capacity, and other reasonable necessary expenses.Id.
Plaintiff contends that Defendants breached numerous duties owed to Plaintiff. These breaches include, but are not limited to the duty to: (1) act toward Plaintiff with reasonable care; (2) look and observe before moving the tug cart to make sure that the way is clear; (3) stop the cart once a person has been injured and not drag him and not run over him; (4) train employees in the proper operation of tug carts as to John Doe; and (5) have a lag-time warning signal before the cart starts to move. Id. at ¶ 10.
Count II of the Complaint states that Plaintiff Patricia A. Dooley, the lawful wife of Plaintiff Michael L. Dooley, has suffered loss of consortium damages as a result of the allegations of negligence set forth in Count I. The damages include, but are not limited to: reasonable expense of necessary medical care; treatment and services received by her husband; the reasonable value of the services of her husband of which she has been deprived; and the reasonable value of society, companionship and sexual relationship with her husband of which she has been deprived.
On October 31, 2001, Defendant Northwest Airlines, Inc., who was served on October 3, 2001, removed the action to this Court pursuant to 28 U.S.C. § 1441, 28 U.S.C. § 1446 and Local Rule 81.1. The Notice of Removal invokes the diversity jurisdiction of this Court under 28 U.S.C. § 1332 (a)(1).
On May 21, 2002, Defendant Northwest Airlines moved for summary judgment, alleging several theories rendering the granting of its motion appropriate. Defendant alleges in its Brief in Support of its Motion for Summary Judgment that Mr. Dooley "testified that after he was hired by Mesaba, he was trained to work on the ramp." See Br. in Supp. of Def. Northwest Airlines, Inc.'s Mot. for Summ. J., Pursuant to F.R.C.P. 56 at 4 (hereinafter referred to as "Def.'s Br."). Specifically, Plaintiff was trained and shown how to clean aircraft, how to load and unload luggage and he was given training manuals from his employer, Mesaba. Id. (citing Dep. of Michael L. Dooley at 80-82) (hereinafter referred to as "Dooley Dep."). Mr. Dooley's training also included how to drive tugs. Id. (citing Dooley Dep. at 85).
Since the commencement of Mr. Dooley's employment with Mesaba, he drove a tug, which usually had attached to it "tail" carts. Id. (citing Dooley Dep. at 85-86). As described by Mr. Dooley, tail carts are approximately 10 feet long. See Dooley Dep. at 124. A tug would sometime carry three (3) carts. These carts carried luggage and other parcels that were being shipped by air on different flights, and Mesaba and other airlines would move around to the appropriate aircraft. See Def's Br. at 5 (citing Dooley Dep. at 85-86).
On the day of the incident, which Mr. Dooley described as a nice "Indian Summer day," Dooley was delivering mail to different aircraft and then switched to deliver the balance of these bags of mail (approximately 15 bags of mail) to a holding area where tail carts were stored and loaded with baggage, mail and other items. Id. (citing Dooley Dep. at 96, 104). Carts in the holding area would then be taken by tugs to the appropriate aircraft. Id. (citing Dooley Dep. at 104). The holding area, a common area used by both Northwest and Mesaba, is where the incident allegedly occurred. Id.
Mesaba and Northwest tug drivers would arrive at this common area and approach the tail carts stored there. Tug drivers either left luggage in the sitting tail carts in the parked holding area, or connected their chain of tug and cart to the sitting tail carts to remove and deliver the cart from the holding area to the appropriate aircraft. Id. at 6 (citing Dooley Dep. at 106). Mr. Dooley described the carts in the holding area as being parked diagonally in rows, to allow the tugs pulling carts to drive between the rows and drop off luggage or mail, and hook up another cart. Id. (citing Dooley Dep. at 106-107).
On the date of the incident, Mr. Dooley states that he parked the tug he was driving with the cart that he was pulling just outside of the holding area. From there, Mr. Dooley claims that he walked through the holding area, dropping off mailbags to the appropriate parked cart in the holding area. Id. (citing Dooley Dep. at 118). Immediately prior to the accident, Mr. Dooley was walking into the holding area, carrying two (2) bags of mail that he was attempting to deliver to the appropriate cart. Id.
Mr. Dooley testified that, on the afternoon of the accident, he walked between the second and third cart attached to a Northwest tug. Id. at 7 (citing Dooley Dep. at 126). Mr. Dooley also testified that everyone walked between the carts attached to tugs because "[y]ou're in such a rush you have to." Id. (citing Dooley Dep. at 122). However, Mr. Dooley also admits that he could have avoided cutting through the second and third carts by going a distance of ten (10) feet from where he cut through the carts to the end of the third cart. Id. at 8 (citing Dooley Dep. at 124). Mr. Dooley also admits that he did not call out warn or notify the tug driver that he was crossing over between the second and third cart attached to the tug. Id. (citing Dooley Dep. at 126).
Although Defendant claims that Attachment A, Exhibit No. 5 to its Brief is a sketch by Mr. Dooley marking where he "cuts between the cart No. 2 and No. 3.," said drawing is appended to Attachment B of Defendant's Brief.
II. STANDARD OF REVIEW
Summary judgment is appropriate if "the pleadings, depositions, answers to the interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c); Wojcik v. City of Romulus, 257 F.3d 600, 608 (6th Cir. 2001); Nelson v. City of Flint, 136 F. Supp.2d 703, 712 (E.D. Mich. 2001). The movant must meet the initial burden of showing "the absence of a genuine issue of material fact" as to an essential element of the nonmovant's case. See Betkerur v. Aultman Hospital Association, 78 F.3d 1079, 1087 (6th Cir. 1996); Nelson, 136 F. Supp.2d at 712. Once a properly supported summary judgment motion has been filed, however, the burden shifts to the party opposing the motion to "set forth specific facts showing that there is a genuine issue for trial." FED. R. Civ. P. 56(e).
The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id In deciding a motion for summary judgment, a court must view the facts in the light most favorable to the nonmoving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The non-movant must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita, 475 U.S. at 586; Celotex, 477 U.S. at 323-24; Nelson, 136 F. Supp.2d at 712. Moreover, the court need not accept as true legal conclusions or unwarranted factual inferences. Varljen v. Cleveland Gear Co., Inc., 250 F.3d 426, 429 (6th Cir. 2001); Hoeberling v. Nolan, 49 F. Supp.2d 575, 577 (E.D. Mich. 1999).
For a dismissal to be proper, it must appear beyond doubt "that the plaintiff would not be able to recover under any set of facts that could be presented consistent with the allegations of the complaint." Varljen, 250 F.3d at 429. Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322-23. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Id. A court must look to the substantive law to identify which facts are material. Anderson, 477 U.S. at 248.
III. ANALYSIS
Defendant asserts three arguments as to why dismissal is appropriate under Rule 56. First, Defendant claims that the "open and obvious doctrine" precludes Mr. Dooley's claim against Northwest. See Def.'s Br. at 10 (hereinafter referred to as "Def.'s Br."). As to this argument, it is important to note that Defendant claims that it does not own the premises upon which Plaintiff was injured. See Reply Br. in Supp. of Def. Northwest Airlines, Inc., Mot. for Summ. J. at 3 (hereinafter referred to as "Def.'s Reply Br."). Second, Defendant states that, even if Mr. Dooley could prove a breach of duty by Northwest, Mr. Dooley's own actions were the cause in fact of the injury and Northwest is not liable. See Def.'s Br. at 14. Finally, Defendant argues that because it did not control the work site, and because Mr. Dooley was not engaged in an inherently dangerous activity, Mr. Dooley's employer, and not Northwest, is responsible for Plaintiffs safe work place. The first two arguments will be discussed below under the rubric of "Negligence," while the final argument is discussed in the section denominated "MCL § 408.1011."
A. Negligence
Generally, a federal court sitting in diversity applies the substantive law of the forum state. See City of Wyandotte v. Consolidated Rail Corp., 262 F.3d 581, 585 (6th Cir. 2001); see also Vella v. Hyatt Corp., 166 F. Supp.2d 1193, 1197 (E.D. Mich. 2001). Michigan tort law will apply in this case. Id. To prevail on a negligence claim, a plaintiff must show: (1) that the defendant owed a legal duty to the plaintiff (2) that the defendant breached or violated the legal duty owed to the plaintiff; (3) that the defendant's breach of duty was a proximate cause of the damages suffered by the plaintiff; and (4) that the plaintiff suffered damages. Vella, 166 F. Supp.2d at 1193 (citing Riddle v. McLouth Steel Products Corp., 485 N.W.2d 676, 681 (Mich. 1992) and Babula v. Robertson, 536 N.W.2d 834, 837 (Mich.Ct.App. 1995)).
1. Duty and the Open and Obvious Doctrine
Defendant's position is that, although this is not a products liability case, and despite the fact that Defendant is not the owner of premises upon which Plaintiff was injured, the "open and obvious" doctrine applies to foreclose liability in this case. See Def.'s Reply Br. at 3. Specifically, Defendant argues that Plaintiff is unable to demonstrate that any danger or hazard was not open and obvious to casual inspection. See Def.'s Br. at 10. Defendant further asserts that there was no duty to either warn or protect Plaintiff from the alleged danger. Id.
Defendant correctly notes that the "open and obvious doctrine" in Michigan has its origins in the "simple tool" doctrine, which states that "there is no duty to warn or protect against dangers obvious to all." See Def.'s Reply Br. at 2 (citing Fisher v. Johnson Milk Co., Inc., 383 Mich. 158, 159, 174 N.W.2d 752 91970)). The "open and obvious" rule obviates a defendant's duty to warn plaintiff if: (1) the defendant's product is a "simple tool" and (2) the dangers of using the tool were "open and obvious" to a reasonable and expected user. Raines v. Colt Industries, Inc., 757 F. Supp. 819, 825 (E.D. Mich. 1991). The open and obvious doctrine was subsequently expanded to any products liability case. See, e.g., Glittenberg v. Doughboy Recreational Indus., 441 Mich. 379, 491 N.W.2d 208 (1992).
The doctrine is also used in the area of premises liability. See, e.g., Riddle v. McLouth Steel Products, Corp., 440 Mich. 85, 485 N.W.2d 676 (1992). The duty a premises owner owes an individual on his property, however, depends on the individual's status, which comes in one of three types: trespasser, licensee, and invitee. of particular importance is the duty a premises owner owes a licensee and invitee.
A trespasser is an individual who enters upon another's land, without the landowner's consent. The landowner owes no duty to the trespasser except to refrain from injuring him by "wilful and wanton" misconduct. James v. Alberts, 626 N.W.2d 158, 162 (Mich. 2001); see also Stitt v. Holland Abundant Life Fellowship, 614 N.W.2d 88, 91 (Mich. 2000).
A licensee enters another's land with the possessor's consent. James, 626 N.W.2d at 168. The landowner owes a licensee a duty to warn of any hidden dangers the owner knows or has reason to know of, but only to the extent the licensee does not know or have reason to know of the dangers involved. Id. The landowner neither owes a duty of inspection or affirmative care to make the premises safe for the licensee, id, nor has an obligation to take any steps to safeguard licensees from conditions that are open and obvious. Pippin v. Atallah, 626 N.W.2d 911 (2001).
An invitee is a person who enters upon the land of another upon an invitation. Generally, a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land. See Lugo v. Ameritech, 629 N.W.2d 384, 386 (Mich. 2001). "The owner's reason for inviting persons onto the premises is the primary consideration when determining the visitor's status: In order to establish invitee status, a plaintiff must show that the premises were held open for a commercial purpose." Stitt, 614 N.W.2d at 95 (emphasis in original).
The landowner must not only warn an invitee of any known dangers, but must also make the premises safe. James, 626 N.W.2d at 168. The landowner has a duty to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards. Id. A premises possessor is not required, however, to protect an invitee from an open and obvious danger unless special aspects of a condition make even an open and obvious risk unreasonably dangerous. Lugo, 629 N.W.2d at 386. Under such circumstances, the premises possessor must undertake reasonable precautions to protect invitees from that risk. Id.
Michigan law only appears to apply the doctrine in the limited areas listed above. In light of the "broad nature of the [open and obvious doctrine] in Michigan," Defendant implores this Court to further expand the open and obvious doctrine to encompass ordinary negligence. See Def's Reply Br. at 3. Notably, Defendant's general premise finds support in other jurisdictions. In Waters v. United States Fidelity Guar. Co., 369 N.W.2d 755 (Wis.Ct.App. 1985), for example, the Court of Appeals of Wisconsin held that the "open and obvious danger" principle applied not only in the case of trespassers and licensees, but also when the standard of care was ordinary negligence.
However, a Wisconsin court has also explained the incompatibility of Defendant's approach with comparative responsibility systems:
Some states that have adopted comparative negligence statutes have addressed the issue of the proper application of the open and obvious danger doctrine to ordinary negligence cases and have essentially abolished its use to preclude recovery based on a lack of duty. . . . These cases conclude that the application of the doctrine to preclude recovery because the defendant owes no duty to a plaintiff who confronts an open and obvious danger is merely a corollary to the assumption of the risk doctrine, which is abolished in most comparative negligence states.Hertelendy v. Agway Ins. Co., 177 Wis.2d 329, 501 N.W.2d 903, 907-08 (1993). Though Defendant has cited numerous cases showing the evolution of Michigan's "open and obvious" doctrine to its present state, Defendant has not produced, and the Court has not located, authority sufficiently analogous to the present situation to justify a further extension of the doctrine.
The Court finds the "open and obvious doctrine" inapplicable in the instant case. See, e.g., Vandall v. Post Elec. Co., 1997 WL 33330692 (Mich.Ct.App. Dec. 19, 1997) (finding that "the trial court's reliance on the `open and obvious danger' doctrine, and on premises liability in general, was erroneous" inasmuch as the defendants in that case "were not possessors of the land on which plaintiffs injury took place."). Therefore, the Court declines Defendant's invitation to so extend the doctrine.
Although the open and obvious doctrine does not apply because, as Defendant admits, it is not the owner of the land, Defendant still owed Plaintiff a duty of ordinary care. This fact is evidenced by Northwest's own guidelines for safe operation on the ramp indicate. See Def.'s Br. at 10. Moreover, "[d]uty of care not only arises out of a contractual relationship, but it also arises by operation of law, a general duty owed by defendant to the public of which plaintiff is a part." See Osman v. Summer Green, 209 Mich. App. 703, 710, 532 N.W.2d 186 (1995).
While the majority of Defendant's Brief, and the arguments contained therein, are dedicated to establishing that the peril encountered by Plaintiff in this case was open and obvious, this contention is wholly misplaced. Indeed, Defendant's arguments are better couched in terms of Michigan's comparative negligence statute. Recognizing as did the Court in Hertelendy that Defendant's theory is at odds with Michigan's comparative negligence statute, the Court is unpersuaded by Defendant's argument.
2. Causation
Defendant's Brief also argues that Mr. Dooley has failed to meet the causation prong of his negligence claim. Defendant did not, however, argue this point at the hearing. Under Michigan law, proving proximate cause entails proof of two separate elements: (1) cause in fact (actual cause), and (2) legal cause, also known as "proximate cause." Skinner v. Square D Co., 445 Mich. 153, 166, 516 N.W.2d 475, 481 (1994). Defendant argues that Plaintiffs' Complaint should be dismissed because Mr. Dooley cannot show either of these forms of causation. See Def's Br. at 14. For support of this proposition, Defendant cites Skinner and Singerman v. Municipal Service Bureau, Inc., 565 N.W.2d 383 (Mich. 1997).
A plaintiff may show actual causation by circumstantial evidence provided such evidence "facilitates reasonable inferences of causation, not mere speculation." Skinner, 445 Mich. at 164, 516 N.W.2d at 480. In Kaminski v. Grand Trunk W.R. Co., 347 Mich. 417, 79 N.W.2d 899 (1956), the Michigan Supreme Court discussed the legal distinction between reasonable inference and impermissible conjecture:
As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any 1 theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.Id. at 422.
Under Michigan law, Mr. Dooley must present substantial evidence from which a jury may conclude that more likely than not, but for Defendant's conduct, his injuries would not have occurred. See Skinner, 445 Mich. at 164, 516 N.W.2d at 480. The Court is persuaded that Mr. Dooley has succeeded in this regard, and Defendant's citations to Skinner and Singerman v. Municipal Service Bureau, Inc., 455 Mich. 135, 565 N.W.2d 383 (1997) do not convince the Court otherwise.
Skinner merely elaborated on the distinction between reasonable inference and impermissible conjecture by noting that a theory evincing only slight evidence of actual cause is insufficient to satisfy the causation element of negligence under Michigan law. 445 Mich. at 164, 516 N.W.2d at 480. Skinner also noted that it is insufficient "to submit a causation theory that, while factually supported, is, at best, just as possible as another theory." Id. Footnote six of Singerman, on which Defendant relies, only repeats the holding of Skinner.
Here, Mr. Dooley' s theory of liability evinces more than "slight evidence of actual cause," and is more than a theory that, "while factually supported, is, at best, just as possible as another theory." As Mr. Dooley argues, "the tug cart driver's conduct does create a reasonable inference or logical sequence of cause and effect. He drove the tug cart off fast without proper observation or care." See Pl.'s Br. at 12. As a result, he ran over Mr. Dooley. To be sure, Mr. Dooley may have been comparatively negligent, but this fact does not eliminate the liability of Defendant based on Defendant's causation theory.
Further, the facts in Singerman, and the arguments made in support of the plaintiffs position in that case, are completely different from those in the instant case. In Singerman, the plaintiff, a hockey coach, brought a negligence claim against the defendants based on injuries the plaintiff sustained when he was struck in eye by a hockey puck at a public hockey arena. The plaintiff argued that "if Defendants had told him he had to wear a helmet (which did not have protective eye gear) to go on the ice, he would have stayed off the ice and would not have been injured." 455 Mich. at 145 n. 6, 565 N.W.2d at 388 n. 6 (parenthetical added). The court concluded that the plaintiff failed to establish the defendant's negligence as a cause in fact of his injury. Id. Specifically, the court stated:
Thus, Plaintiff is not alleging that enforcement of rules would have caused him to wear a helmet and thereby be protected from the injuries. Rather, he alleges that if Defendants had removed him from the ice, he would not have been in that place at that time. However, the allegedly negligent failure to enforce the helmet rule would create liability in Defendants only for injuries that would have been prevented by use of the helmet.455 Mich. at 144, 656 N.W.2d at 388.
Because use of the helmet was not intended to keep the plaintiff off the ice, the court found no causal link between the defendant's failure to enforce the rule and the plaintiffs injuries. Here, the precautions that Plaintiff alleges Defendant tug cart driver should have taken are "precisely cautions that are designed to avoid the kind of injury that occurred." See Pl.'s Br. at 14. Based on this distinction, the Court finds Singerman unpersuasive. Defendant's Motion for Summary Judgment based on this argument must be DENIED. B. MCL § 408.1011
Defendant's final argument is that it did not own the premises upon which Plaintiff was injured and, therefore, had no obligation to maintain it in a safe environment. See Def.'s Br. at 16-17. Defendant cites MCL § 408.1011 for support of this proposition. MCL § 408.1011 states, in pertinent part, that an employer shall:
Furnish to each employee, employment and a place of employment which is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employee.
MCL § 408.1011(a). As Plaintiff observes, "[w]hatever duty Mesaba Airlines may have with respect to Mr. Dooley to provide him a safe workplace, it does not eliminate duties Northwest may owe under the circumstances. Defendant Northwest Airlines provided no argument to support that it does and cited no law in support that it does" See Pl.'s Br. at 14-15.
In Holgate v. Chrysler Corp., 279 Mich. 24, 271 N.W. 539 (1937), the plaintiff was hired by the Newcomb-David Company to go to Chrysler's factory and take certain photographs of machinery manufactured by Newcomb-David Company and which was used and operated by Chrysler. While on the premises and about to take the photograph, a flash fire or explosion occurred and the plaintiff was injured. The plaintiff brought a negligence action against the defendant.
In affirming the trial court's dismissal of the plaintiffs suit, the Michigan Supreme Court announced the following:
The general rule is that the responsibility of an employer in respect to a safe working place for his employee does not extend to the premises of a third person, of which the employer has neither possession nor control, to which the employee is sent for the performance of some act or duty. Foster v. Conrad, 261 F. 603 (8th Cir. 1919). In such cases, though an employee may have a cause of action against the owner of the premises, he has no cause of action against the party who furnished the machinery. 18 R.C.L. §§ 90. The employer does not own, use, or control the premises and is without power to make changes in their condition.Id. at 31, 541. Importantly, Holgate also stated that [a]n employer cannot be justly charged with negligence as to matters over which he has no control, negligence being but a want of due care under all the circumstances. Id. (emphasis added) (citing cases). Having found that the plaintiff was not an employee of Chrysler, but rather an independent contractor, the Michigan Supreme Court agreed with the trial court's decision.
In this case, Plaintiff is neither an employee of nor an independent contractor for Northwest. Instead, he is a third party allegedly harmed by the negligence of Defendant. Plaintiff has alleged that Defendant demonstrated a "want of due care" as to its operation of the tug cart. Even assuming the tug cart was located on property not owned by Defendant, Defendant's duty of care with regard to cautious operation thereof was nonetheless present. See Def.'s Br. at 10 (displaying Northwest guidelines that detail duties of tug cart drivers); see also Osman, 209 Mich. App. at 710. Further, Defendant irrefutably maintained control over the tug cart, even though the common area, itself, may be a matter over which Defendant had no control. Plaintiff may therefore maintain an action in negligence against Defendant.
Finally, the Court notes that Defendant correctly states the general rule that an owner of property is not liable to an employee of an independent contractor for negligence. See Funk v. General Motors Corp., 392 Mich. 91, 101, 220 N.W.2d 641 (1974), overruled in part on another ground by Hardy v. Monsanto Enviro-Chem Systems, Inc., 414 Mich. 29, 323 N.W.2d 270 (1982); Wolfe v. Detroit Edison Co., 156 Mich. App. 626, 627, 402 N.W.2d 16 (1986). Defendant is also correct in observing that, "[i]n such situations, the actual employer of a worker is immediately responsible for job safety and for maintaining a safe work place." Butler v. Ramco-Gershenson, Inc., 214 Mich. App. 521, 531, 542 N.W.2d 912, 918 (1995) (citing Funk, 392 Mich. at 102, 220 N.W.2d 641). However Defendant's citations to cases supporting these propositions are inapposite because, as stated previously, there is no indication that there is an independent contractor relationship in this case.
The two main exceptions to this general rule provide for liability if: (1) the property owner retains control over the work done and the contractor's activities or (2) the work is inherently dangerous — the work can reasonably be foreseen as dangerous to third parties. Bosak v. Hutchinson, 422 Mich. 712, 724, 375 N.W.2d 333 (1985).
For the reasons stated above, Defendant's Motion for Summary Judgment, in as much as it argues that MCL § 408.1011 relieves it of liability, is DENIED.
IV. CONCLUSION
Defendants' arguments related to causation and MCL § 408.1011 are not persuasive. Therefore, summary judgment cannot be granted based on these assertions. Moreover, the "open and obvious" doctrine does not apply in this case. For these reasons, the Court DENIES Defendant's Northwest Airlines, Inc.'s Motion for Summary Judgment, Pursuant to F.R.C.P. 56.
Accordingly,
IT IS HEREBY ORDERED that Defendant Northwest Airlines, Inc.'s Motion for Summary Judgment, Pursuant to F.R.C.P. 56 ( Docket #, 14, filed May 21, 2002) is DENIED.