Opinion
Case No. 99-73247
November 7, 2000
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Introduction A.
This is a tort case. Plaintiff Peter Pinkowski (Pinkowski), an employee of Wanko Electric (Wanko), an electrical subcontractor, is suing defendant Adena Corporation (Adena) for injuries he suffered while working on a construction job site owned by AIG Baker; Adena was the general contractor on the site. Before the Court is Adena's motion for summary judgment on the grounds that (1) it did not retain control over Wanko, (2) there was not a readily observable avoidable danger in a common work area, and (3) the activity Pinkowski was engaged in at the time of the accident was not inherently dangerous.
The case was originally brought against Adena and AIG Baker. AIG Baker was dismissed pursuant to a grant of summary judgment on August 14, 2000.
B.
A hearing on Adena's motion was held on August 2, 2000, at which time the Court stated that the record was bare as to certain evidence pertaining to the electrical distribution system in the building under construction, and in particular, who had control over the main electrical switch for the building. The Court requested supplemental papers and continued the motion for 60 days. Adena has since filed the papers requested; the motion is ripe for decision.
For the reasons that follow, the motion will be granted.
II. Background
The following facts are undisputed. On November 30, 1998, Pinkowski was working for Wanko as an electrician. Wanko had been hired as a subcontractor by Adena, the general contractor, for the construction of a new Wal-Mart store owned by AIG Baker. James Kerster (Kerster), Wanko's foreman, directed Pinkowski to affix light fixtures to an electric line in the soffit area above the ceiling in the pharmacy area of the store. Although no one actually saw the accident and Pinkowski has no recollection of what happened, it appears that when he was hooking up the lights, Pinkowski came into contact with a live, or energized, wire and suffered severe electrical injuries. Although Kerster knew that the line was live when he directed Pinkowski to install the fixtures, he failed to tell Pinkowski.
It is unclear if Pinkowski was a certified electrician or an apprentice electrician.
III. Summary Judgment
Summary judgment is appropriate when the moving party demonstrates 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). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The Court "must view the evidence in the light most favorable to the non-moving party." Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir. 1995).
IV. Analysis A. Retained Control
The general rule is that when a general contractor hires an independent subcontractor to perform a job, the general contractor is not responsible for injuries caused by, or to, an employee of the subcontractor. Funk v. General Motors, 392 Mich. 91 (1974); Candelaria v. B.C. General Contractors, Inc., 236 Mich. App. 67, 72 (1999); Samhoun v. Greenfield Construction Co., 163 Mich. App. 34, 45 (1987). An exception to the general rule exists, however, when the general contractor retains and exercises control sufficient to create a corresponding duty to implement reasonable safety precautions. Funk, supra at 108;Plummer v. Bechtel Construction Co., 440 Mich. 646 (1992).
There is no specific test or guidelines for determining if a general contractor has "retained control;" it is a fact specific inquiry. Wolfe v. Detroit Edison, 156 Mich. App. 626, 631 (1986). However, precedents emphasize that the general contractor must "retain at least partial control and direction of actual construction work, which is not equivalent to safety inspections and general oversight." Samodai v. Chrysler Corp., 178 Mich. App. 252, 256 (1989); see also Candelaria, supra at 76 (stating that the "retention of control must have had some actual effect on the manner or environment in which the work was performed.")
1.
In his brief, Pinkowski spends a significant amount of time discussing Adena's conduct with respect to Wanko and the overall job site to illustrate Adena's retention and exercise of control over Wanko's work. Reviewing the extensive list of activities by Adena, it appears that the conduct cited by Pinkowski falls within the categories of safety inspections and general oversight. For example, Pinkowski says that Adena's supervisor, Michael Hall, "monitored and inspected the subcontractor's performance," and "conferred with [Kerster] on a daily basis." Even assuming such conduct to be true, those activities do not describe a retention or exercise of control and direction of Wankos' actual construction work by Adena. See Samodai.
More importantly, all the evidence in the record indicates that control over the source of the electricity in the line, i.e., the main switch, or disconnect switch housed in the back electric room, rested solely with Wanko through Kerster. See Kerster deposition at pp. 5-6, 7, 9, 11, 22, 26, 28-29, 31. Kerster unequivocally testified that he was responsible for "throwing" the lights on or off; if a Wanko electrician needed the electricity disconnected to work on an electric line, he or she needed to alert Kerster.
Here, it is undisputed that Pinkowski's injuries resulted from the fact that the electric line he was working on was energized. Conversely, Pinkowski would not have been injured if the electric line had been disconnected. Therefore, as the Court indicated at the motion hearing, it is simply not enough that the general contractor had control over the site, if control of the electrical distribution system rested in the subcontractor. It would be unreasonable to require a general contractor, as a rule, to "stand guard," so to speak, over the electrical switch.
Given that there is no evidence in the record that Adena retained any control over the electrical distribution system in the building at the time of Pinkowski's accident, such that it created a corresponding duty to implement reasonable safety precautions, Adena is entitled to summary judgment on the issue of retention of control.
B. Common Area
Independent from the amount of control that a general contractor retains or exercises on a subcontractor's work, the general contractor is still responsible to "guard against readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of work[ers]." Funk supra, at 104. Each of the three elements, (1) readily observable, avoidable danger, (2) common work area, and (3) high degree of risk to a significant number of workers, must be met for liability to attach. Samhoun v. Greenfield Co., 163 Mich. App. 34, 46 (1987).
1.
The danger to which Pinkowski was exposed was that the electric line he was working on was live. Neither party seems to dispute that this was an avoidable danger, in that the electricity in the line could have been disconnected prior to Pinkowski working on it. Thus the issue is whether it was readily observable.
Pinkowski argues that since the lights in the pharmacy were on, a condition that was obvious to everyone in the area, the danger of Pinkowski working on a live wire was also readily observable. Thr argument is not well taken. Lights, even in the same area, can be connected to different circuits. Simply because the area was illuminated does not mean that it was readily observable that the particular line Pinkowski worked on was necessarily energized. Merely looking at a line will not reveal whether the line is activated or deactivated. Compare with Funk, supra, at 103 (holding danger readily observable where plaintiff, an iron worker, fell from a six-inch steel beam hanging 30 feet in the air and "it was obvious to even the most casual observer that the men in the steel were without safety harnesses or belts and there was no safety net under the men.")
Moreover, Pinkowski's reliance on the testimony of two construction safety experts, A. David Brayton and Matthew Balmer, is misplaced. Their testimony merely indicates that the danger was readily observable by electrical experts. However, Adena's foreman was not an electrician, nor is it claimed that he should have been. In Justus v. Swope, the court of appeals, stated: "It is not reasonable . . . to expect a mere homeowner to be cognizant of . . . the special dangers or peculiar risks to employees of an independent contractor where . . . the independent contractor and his employees are more knowledgable. . . ." Although the court in its statement was discussing the issue of inherent dangerousness, and a general contractor is far more knowledgeable than a mere homeowner, the point is still a cogent one. Here, Pinkowski, a professional electrician with at least one year's experience in the field failed to observe that the electrical line was live before he touched it. It is unreasonable to assume then, that it was readily observable to a non-electrical professional. Accordingly, the danger of a live electric line was not readily observable.
2.
Even assuming arguendo that the danger to Pinkowski was readily observable, Pinkowski was not working in a common area.
a.
To qualify as a common area, "all that is required is that two or more subcontractors will eventually work in the same area of the construction site." Erickson v. Pure Oil Corp., 72 Mich. App. 330, 337 (1976); Johnson v. Turner Construction Co., 198 Mich. App. 478, 481 (1993) (citing Erickson). Pinkowski argues that because there were several carpenters working in the pharmacy area on the day of the accident, he was working in a common area.
Adena does not dispute that other subcontractors were working in the pharmacy area. Rather, it argues that there is no evidence that an employee of any other trade would be working in theceiling area of the pharmacy. In support of its argument for a more precise parameter definition, Adena relies upon Hughes v. PMG Building, Inc., 227 Mich. App. 1 (1997), appeal filed.
In Hughes, the plaintiff, a roofing contractor, was injured as he began to shingle a small porch overhang, which pulled away from the house and collapsed without warning. The court of appeals rejected plaintiff's argument that because a carpenter contractor assembled the porch, and another contractor would later be pouring cement for the porch support stanchions, the porch overhang was a common area. Id. at 6-7. Noting that there was no evidence that any employee of another trade would be working on top of the porch overhang, the court of appeals held that the porch overhang was not a common area. Id. The court of appeals reasoned:
If the top of the overhang or even the overhang in its entirety were considered to be a "common work area" for purposes of subjecting the general contractor to liability for injuries incurred by employees of subcontractors, then virtually no place or object located on the construction premises could be considered not to be a common work area. We do not believe that this is the result the Supreme Court intended.Id. at 8.
b.
The reasoning of the court of appeals in Hughes is persuasive. Pinkowski's characterization of the relevant area as the entire pharmacy area is overbroad; the danger to which Pinkowski was exposed was contained entirely within the soffit area above the ceiling of the pharmacy. This was a location separate and away from the areas that other subcontractors were working. Indeed, like in Hughes, Pinkowski has proffered no evidence to indicate that any other trade would be working in the ceiling area of the pharmacy. As such, the area where Pinkowski was working cannot be considered a common area.
3.
For the same reasons that the area in which Pinkowski was working does not qualify as a common area, it also cannot be said that the live electric line in the ceiling of the pharmacy created "a significant risk to a number of work[ers]." Funk, supra, at 104. Nothing in the record indicates that any worker other than Pinkowski faced the same danger which injured him. This is in sharp contrast to Erikson v. Pure Oil Co., 72 Mich. App. 330 (1976) (common area found), where the plaintiff fell from a roof used by numerous subcontractors, and Plummer v. Bechtel Construction Co., 440 Mich. 646 (1992) (common area found), where the plaintiff fell from a work platform regularly used by the 2500 workers. See also, Hughes, supra at 7-8 (holding that four workers does not constitute a significant number of workers). As such, there was no danger to a significant number of workers.
In short, Pinkowski's situation does not fall within the common work area doctrine imposing liability on the general contractor. Adena is therefore entitled to summary judgment on the issue of common area liability.
C. Inherently Dangerous 1.
Another exception to the general rule that a general contractor is not liable for an independent contractors' negligence is when the activity done by the independent contractor is inherently dangerous. Bosak v. Hutchinson, 422 Mich. 712 (1985). Inherently dangerous speaks to "work which, although not highly dangerous, involves a risk recognizable in advance that danger inherent in the work itself, or in the prescribed way of doing it, may cause harm to others." Id. at 729 (quoting 2 Restatement of Torts, 2d, § 427, comment c.) Liability under this theory, however, may be only 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, or contemplated, at the inception of the contract. Id. at 727-28 (citing 2 Restatement of Torts, 2d, §§ 416, 427).
2.
In arguing that the work he was doing at the time of his accident was inherently dangerous, Pinkowski offers ample evidence indicating that working on a live line cannot be done safely, and that someone such as himself, with only one year of electrical apprentice experience, should not be working on a live line. See deposition of Leon Moeller at 48-51, deposition of Kerster at 84- 85, deposition of Steven Markesino at 47-48; see also, Schultz v. Consumers Power, 443 Mich. 445 (1993) (stating "electrical energy possesses inherently dangerous properties. . . .")
Pinkowski's argument, however, misses the mark. At the time of his accident, Pinkowski was attaching a light fixture to an electric line. According to Kerster, Pinkowski's foreman, this was fairly routine work. The danger was only created by doing the job without disconnecting the line first.
In Samodai v. Chrysler Corp, supra, the plaintiff was injured when he was standing on a rigged-up platform on the prongs of an elevated forklift in order to change some lightbulbs suspended twenty feet in the air. As the plaintiff was being lowered, the forklift lifting mechanism malfunctioned and caused him to fall. The court of appeals determined that the plaintiff was not engaged in an inherently dangerous activity at the time of the accident because neither changing lightbulbs, nor operating a forklift, in themselves, present a peculiar risk or special danger. 178 Mich. App. at 255.
In Justus v. Swope, 184 Mich. App. 91, 96 (1990), the court of appeals again reiterated that "the risk involved in the activity must be . . . inherent in the work itself, or normally to be expected in the ordinary course of the usual or prescribed way of doing it." For example, in Rasmussen v. Louisville Ladder Co., 211 Mich. App. 541 (1995), the plaintiffs, two ironworkers, were using hanging scaffolding to assist them in bolting metal siding to the fame of a building they were constructing. Rather than using metal safety cables, the workers substituted hemp rope for the missing steel cable. The plaintiffs were injured when the rope snapped, and the scaffolding collapsed. The court of appeals held:
the dangerous activity undertaken was the decision to forgo the use of steel safety cables, not the use of hanging scaffolding. The activity recognized by defendant to be performed by plaintiffs involved the fairly routine task of constructing a multistory building using hanging scaffolding. Reasonable safeguards against the injury were expected to be used.Id. at 549.
Likewise, here, the dangerous activity was attaching a light fixture to an electric line without deactivating it; attaching a light fixture to an electric line in and of itself is not dangerous. Pinkowski is a professional electrician and it is reasonable to expected him to exercise reasonable safeguards. To adopt Pinkowski's argument would be to hold that any activity involving electricity is inherently dangerous, thus making a general contractor or owner liable for acts of the electrical contractor, or subcontractor, on every construction job, or in every situation where electricity is involved.
Moreover, there is no evidence that at the time the contract was entered into between Wanko and Adena, that any of the parties contemplated, or should have known that someone was going to work on an electric line without first deactivating it. Wanko is an experienced professional electrical contractor and can be expected to exercise reasonable safeguards. Accordingly, Adena is entitled to summary judgment on the issue of inherent dangerousness.
V. Conclusion
For the reasons stated above, Adena's motion is GRANTED and the case is DISMISSED.
SO ORDERED.