Ghaffari v. Turner Construction Co.

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 12, 2005

LOUIS GHAFFARI,

Plaintiff-Appellant,

v No. 124786

TURNER CONSTRUCTION COMPANY,

Defendant, Cross-Plaintiff,
Third Party Plaintiff-Appellee,

and

HOYT, BRUM & LINK, and GUIDELINE
MECHANICAL, INC.,

Defendants,
Cross-Defendants-Appellees,

and

R.W. MEAD & SONS, INC., and CONTI
ELECTRIC, INC.,

Third-Party Defendants,

and

ACOUSTICAL CEILING AND PARTITION
COMPANY,

Defendant,

and

THE EDISON INSTITUTE a/k/a HENRY FORD
MUSEUM & GREENFIELD VILLAGE,
 Defendant, Third-Party Plaintiff.
_______________________________________/

LOUIS GHAFFARI,

Plaintiff-Appellant.

v No. 124787

TURNER CONSTRUCTION COMPANY,

Defendant, Cross-Plaintiff,
Third-Party Plaintiff-Appellee,

and

HOYT, BRUM & LINK,

Defendant,
Cross-Defendant-Appellee,

and

GUIDELINE MECHANICAL, INC.,

Defendant, Cross-Defendant,

and

ACOUSTICAL CEILING & PARTITION
COMPANY,

Defendant,

and

THE EDISON INSTITUTE a/k/a HENRY FORD
MUSEUM & GREENFIELD VILLAGE,

Defendant, Third-Party Plaintiff,

and

CONTI ELECTRIC, INC.,

Third-Party Defendant.
_______________________________________/

2

BEFORE THE ENTIRE BENCH

MARKMAN, J.

The question presented is whether the “open and

obvious” doctrine has any application in a claim brought

under the “common work area” doctrine. We conclude that it

does not.

I. FACTS AND PROCEDURAL HISTORY

This case arises out of a slip and fall incident that

occurred during construction of an IMAX theater at Henry

Ford Museum in Dearborn. The premises were owned by the

Edison Institute, better known as the Henry Ford Museum and

Greenfield Village (Edison). Edison signed a construction

contract with defendant Turner Construction Company

(Turner), whereby Turner agreed to act as the construction

manager for the project. Pursuant to this contract, Turner

then negotiated trade contractor agreements with

subcontractors on behalf of Edison, and administered them

as the construction manager.

Plaintiff, an employee of electrical subcontractor

Conti Electric, Inc., was injured on the construction site

when he tripped on pipes left on the floor of a storage

area that he alleged had served as a passageway.

Plaintiff further alleged that the pipes were owned by one

of two other subcontractors: either defendant Guideline

Mechanical, Inc. (Guideline), the pipefitting
3
subcontractor, or defendant Hoyt, Brum & Link (Hoyt), the

plumbing subcontractor.

Plaintiff testified that he had rounded a corner and

walked through an archway that, until recently, had been

covered with plywood. Plaintiff claimed that he slipped on

the pipes as he entered the storage area from behind

gangboxes that stood in the walkway. He testified that

other pipes closer to eye level distracted his vision as he

rounded the gangboxes.

The trial court granted defendants’ motion for summary

disposition on the ground that the hazard was open and

obvious, citing this Court’s then-recent decision in Lugo v

Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001).

The trial court also granted summary disposition to

Guideline on the additional ground that no evidence was

presented to indicate that the pipes in question belonged

to Guideline. The Court of Appeals affirmed in an

unpublished per curiam opinion, which was later published

at defendants’ request. Ghaffari v Turner Constr Co, 259

Mich App 608; 676 NW2d 259 (2003).

We granted leave to appeal and directed the parties to

address whether the open and obvious doctrine has any

application in a claim under the common work area doctrine

described in Ormsby v Capital Welding, Inc, 471 Mich 45,

54; 684 NW2d 320 (2004), and, if so, how the open and
4
obvious doctrine could be reconciled with Hardy v Monsanto

Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1992),

in which this Court concluded that the goal of safety in

the workplace would be enhanced by the application of

principles of comparative negligence. See Ghaffari v

Turner Constr Co, 471 Mich 915 (2004).

II. STANDARD OF REVIEW

This case requires that we consider whether the open

and obvious doctrine is applicable in the construction

setting. The applicability of a legal doctrine is a

question of law that we review de novo. People v Thousand,

465 Mich 149, 156; 631 NW2d 694 (2001). We also review de

novo a circuit court’s grant of summary disposition.

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).

III. ANALYSIS

The question presented is whether a general

contractor,1 when confronted with potential liability for a

job site injury suffered by the employee of a

subcontractor, may avoid liability on the basis that the

condition giving rise to the injury was open and obvious.

1
Although, under the terms of its contract with the
premises owner, Turner was in fact a “construction
manager,” and not a “general contractor,” the distinction
is one without a difference for purposes of our analysis in
this case. Because our common work area jurisprudence has
heretofore referred to “general contractors,” we will
continue to use that term.

5

In order to answer this question, we must first examine two

relevant common-law doctrines: the common work area

doctrine and the open and obvious doctrine.

A. The Common Work Area Doctrine

At common law, property owners and general contractors

generally could not be held liable for the negligence of

independent subcontractors and their employees. However,

in Funk v Gen Motors Corp, 392 Mich 91, 104; 220 NW2d 641

(1974), this Court departed from this traditional framework

and set forth an exception to the general rule of

nonliability in cases involving construction projects:

We regard it to be part of the business of a
general contractor to assure that reasonable
steps within its supervisory and coordinating
authority are taken to guard against readily
observable, avoidable dangers in common work
areas which create a high degree of risk to a
significant number of workmen. [Emphasis added.]

We also articulated several practical considerations

that supported this exception:

Placing ultimate responsibility on the
general contractor for job safety in common work
areas will, from a practical, economic
standpoint, render it more likely that the
various subcontractors being supervised by the
general contractor will implement or that the
general contractor will himself implement the
necessary precautions and provide the necessary
safety equipment in those areas.

[A]s a practical matter in many cases only
the general contractor is in a position to
coordinate work or provide expensive safety
features that protect employees of many or all of
the subcontractors. . . . [I]t must be
6

 recognized that even if subcontractors and
supervisory employees are aware of safety
violations they often are unable to rectify the
situation themselves and are in too poor an
economic position to compel their superiors to do
so. [Id. (internal citation and quotation marks
omitted).]

In Ormsby, supra at 54, we listed the elements of what

had become known since Funk as the common work area

doctrine:

That is, for a general contractor to be held
liable under the “common work area doctrine,” a
plaintiff must show that (1) the defendant,
either the property owner or general contractor,
failed to take reasonable steps within its
supervisory and coordinating authority (2) to
guard against readily observable and avoidable
dangers (3) that created a high degree of risk to
a significant number of workmen (4) in a common
work area. [Emphasis added.]

We made clear in Ormsby that only when this test is

satisfied may a general contractor be held liable for the

alleged negligence of the employees of independent

subcontractors with respect to job site safety. Id. at 55-

56. The failure to satisfy any one of these elements is

fatal to a Funk claim. Id. at 59.

B. The Open and Obvious Doctrine

In general, a premises possessor must exercise

reasonable care to protect invitees from an unreasonable

risk of harm caused by a dangerous condition on the land.

Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185

(1995). However, this duty does not generally require the

7

removal of open and obvious dangers. In Lugo, supra at

516-517, we rearticulated the open and obvious doctrine:

[W]here the dangers are known to the invitee
or are so obvious that the invitee might
reasonably be expected to discover them, an
invitor owes no duty to protect or warn the
invitee unless he should anticipate the harm
despite knowledge of it on behalf of the invitee.

* * *

In sum, the general rule is that a premises
possessor is not required to protect an invitee
from open and obvious dangers, but, if special
aspects of a condition make even an open and
obvious risk unreasonably dangerous, the premises
possessor has a duty to undertake reasonable
precautions to protect invitees from that risk.
[Internal citations omitted; emphasis added.]

We also stated that the open and obvious doctrine

should not be viewed as “some type of ‘exception’ to the

duty generally owed invitees,” but rather viewed “as an

integral part of the definition of that duty.” Id. at 516.

C. Compatibility of the Two Doctrines

Defendants urge us to find that the two doctrines—the

common work area doctrine and the open and obvious

doctrine—are compatible and can be applied harmoniously.

However, as noted above, for a general contractor to be

held liable under the common work area doctrine, a

plaintiff must show that the general contractor has failed

“to guard against readily observable and avoidable dangers

. . . .” Ormsby, supra at 54. Yet, one could replace the

phrase “readily observable and avoidable” as used in Ormsby
8

with the phrase “open and obvious” without significantly

changing the meaning of this passage. Thus, an

irreconcilable conflict immediately arises: one doctrine

(common work area) imposes an affirmative duty to protect

against hazards that are open and obvious, while the other

(open and obvious) asserts that no duty exists if the

hazards are open and obvious.2 Because of this logical

conflict, we have no difficulty in concluding that the open

and obvious doctrine and the common work area doctrine are

incompatible.

The Court of Appeals recognized in this case that

Michigan courts have not expanded the open and obvious

doctrine into a general-contractor liability context.

Ghaffari, supra at 614. However, the Court then proceeded

to conclude that “there is nothing in the history of the

open and obvious danger doctrine . . . to suggest that the

doctrine should not apply in other contexts.” Id. With

this conclusion, we respectfully disagree.

In addition to the logical conflict noted above, we

recognize that there are several critical distinctions

between the two doctrines that demonstrate that they serve

different objectives. First, our jurisprudence makes clear

2
At least, absent “special aspects.” Lugo, supra at
517-518.

9

that the two doctrines are applicable in entirely different

contexts. The open and obvious doctrine is specifically

applicable to a premises possessor. Lugo, supra at 516-

517. The common work area doctrine, meanwhile, is not

applicable to the premises possessor, but rather to a

general contractor whose responsibility it is to coordinate

the activities of an array of subcontractors. See,

generally, Funk and Ormsby.

In Perkoviq v Delcor Homes—Lake Shore Pointe, Ltd, 466

Mich 11; 643 NW2d 212 (2002), this Court recognized the

distinction inherent in these two contexts. In Perkoviq,

the plaintiff worker was injured when he fell from the roof

while painting a partially constructed house. He brought

suit against the defendant, the owner and general

contractor of the subdivision development, on both premises

liability and contractor liability theories. In reversing

the Court of Appeals conclusion that genuine issues of

material fact existed regarding the plaintiff’s premises

liability claim, we observed:

The Court of Appeals seems to have confused
general contractor liability with the liability
of a possessor of premises. In explaining its
conclusion that defendant could be liable on a
premises liability theory, the Court used
analysis that was irrelevant to that theory and
would be applicable only to a claim against a
general contractor. . . .

The fact that defendant may have additional
duties in its role as general contractor,
10
 however, does not alter the nature of the duties
owed by virtue of its ownership of the premises.
[Id. at 19.]

Thus, contrary to the Court of Appeals analysis, Perkoviq

makes clear that different duties are owed under each

doctrine, and that the legal analyses employed in the two

contexts are distinct.

Moreover, Ormsby itself implicitly recognized the

fundamental difference between these two contexts. While a

premises owner who hires an independent contractor is

generally not liable for injuries that the contractor

negligently causes,3 we noted in Ormsby that a premises

owner may still be liable for injuries to workers under

limited circumstances. Where the premises owner retains

sufficient control over the construction project, the owner

“steps into the shoes of the general contractor and is held

to the same degree of care as the general contractor.”

Ormsby, supra at 49. In such a case, the owner would face

liability under the “retained control doctrine,” which we

described as standing for the proposition

that when the Funk “common work area doctrine”
would apply, and the property owner has
sufficiently “retained control” over the
construction project, that owner steps into the
shoes of the general contractor and is held to
the same degree of care as the general

3
See, e.g., DeShambo v Anderson, 471 Mich 27, 31; 684
NW2d 332 (2004).

11

 contractor. Thus, the “retained control
doctrine,” in this context, means that if a
property owner assumes the role of a general
contractor, such owner assumes the unique duties
and obligations of a general contractor. [Id.
(emphasis added).]

Ormsby made clear that the owner’s liability in such a

situation would stem not from the owner’s status as the

premises possessor, but from his or her status as the de

facto general contractor. In making such a distinction,

Ormsby recognized the distinction between the duties a

premises possessor owes by virtue of his or her status as a

possessor, and the duties owed by virtue of retaining

control as a contractor over a common work area. Because

these duties—articulated in the open and obvious doctrine

and the common work area doctrine, respectively—are

distinct, so too must be the doctrines that articulate such

duties.4

A second distinction between the two doctrines that

our cases make apparent concerns the issue of worker

4
We note that the retained control doctrine is not
implicated in the instant case, because none of the
remaining defendants is the premises owner. We refer to
that doctrine only to point out its recognition that the
nature of the liability faced by one who possess premises,
and by one who controls premises during their construction,
are distinct.

12

safety.5 We note that the application of the open and

obvious doctrine in the construction setting would conflict

with the reasoning underlying this Court’s holding in

Hardy, because it would largely nullify the doctrine of

comparative negligence in the construction setting, and

effectively restore the complete bar to a contractor’s

liability abolished when Hardy eliminated contributory

negligence in that setting.

In Hardy, supra at 39, this Court addressed “whether

the Funk policy of promoting safety in the workplace would

be undermined or enhanced by the application of the

principles of comparative negligence.” In adopting

comparative negligence, we observed:

In Funk, this Court found the total bar of
contributory negligence to be inconsistent with
the public policy of promoting safety in the
workplace. The Court refused to allow a general
contractor and a landowner to “avoid” liability
“by pointing to the concurrent negligence of the
injured worker in using the [unsafe] equipment.”
Before Funk, the contractor could entirely avoid

5
While the foundational consideration underlying the
common work area doctrine is one of job site safety, safety
concerns of course are not limited to the construction
setting. While our opinion today distinguishes the common
work area doctrine from the open and obvious doctrine, we
emphasize our view that the latter doctrine also promotes
safety concerns, albeit in a different manner. As is
apparent from our discussion later in this opinion of the
hazards typically found in a construction site, what
constitutes “ordinary care” in a premises liability setting
may differ substantially from what constitutes “ordinary
care” in the construction setting.

13

 liability by convincing the finder of fact that
the plaintiff was even 1% negligent. Apparently
it was feared that some contractors might succumb
to the temptation of employing skilled defense
counsel instead of adequate safety devices. . . .

“To allow defendants in this case to invoke
the protection of the contributory negligence
doctrine would be tantamount to subverting the
very safety concerns that the . . . Funk court[]
extolled as of paramount importance. Such a
position might allow a manufacturer to escape its
duty of due care . . . .”

* * *

In stark contrast, the defense of
comparative negligence never allows a contractor
to entirely “avoid” liability and thus “escape”
the duty of due care. Under Placek [v Sterling
Hts, 405 Mich 638; 275 NW2d 511 (1979)], the
defendant must pay the full percentage of damages
caused by his negligence. [Id. at 39-40
(citations omitted).]

The adoption of the open and obvious doctrine in the

general contractor setting would tend to thwart the goals

of workplace safety advanced by our decisions in Funk and

Hardy. If we were to adopt the rule set forth below by the

Court of Appeals, we would effectively return to a

contributory negligence regime. In such a case, no matter

how negligent the general contractor was in creating or

failing to ameliorate the hazard, the employee would be

barred from recovery because the hazard was open and

obvious.

Hardy recognized that such bars to recovery “provide a

strong financial incentive for contractors to breach the

14

duty to undertake reasonable safety precautions.” Id. at

41. Indeed, such a rule might lead to a paradoxical

result—the more egregious (i.e., obvious) the safety

violation, the less incentive the contractor would have to

ameliorate the hazard, because of the knowledge that

obviousness of the hazard would bar the contractor's

liability for the resulting injury. Instead, Hardy adopted

a comparative negligence rule on the grounds that such a

rule retains a strong incentive for general contractors to

maintain workplace safety.6 Accordingly, we believe that

Hardy supports the conclusion that the open and obvious

doctrine should remain distinct from the common work area

doctrine.

As a third distinction between the two doctrines, we

offer a final observation grounded in the nature of the

different harms confronted in the realms in which each

doctrine is applicable. In particular, there exist unique

and distinct attributes of the construction setting that

would make the rules applicable in the typical premises

liability setting inappropriate.

6
In addition, such a rule also ensures that the worker
also bears responsibility for his or her own conduct. A
comparative negligence regime “enhances the goal of safety
in the workplace under these conditions . . . .” Hardy,
supra at 41.

15

 Construction sites typically involve the comings and

goings of multiple subcontractors and their materials, a

physical venue that is constantly being subjected to

alteration, with any number of open hazards that are

evolving by the moment. The hazards existing at

construction sites are numerous and may typically come from

any one of three dimensions, including from above. These

hazards may often be in motion. Loud and sudden noises may

surround and distract the construction worker, with many of

these noises emanating from the dangerous activities

carried out by fellow workers who may be near.

Nonetheless, at the same time that he or she is confronted

with such an environment, the construction worker must move

at a business-like pace in order to carry out his or her

job—one that may require considerable physical exertion,

and require attention to detail and compliance with

demanding professional standards—in a timely manner. This

is in contrast to the typical premises liability case in

which the open and obvious hazard is found on or near

ground level, and in which distractions, although they may

sometimes exist, are of a considerably less urgent and

persistent character than those faced by the construction

worker. While the construction worker still bears the

responsibility of carrying out his or her work in a

reasonable and prudent manner, the worker will typically
16
encounter more dangers of a more diverse character, and

more distractions coming from more directions, than will

persons shopping in retail establishments or walking in

parking lots or visiting the residences of others, and will

generally be less able to avoid a given hazard than the

typical invitee or licensee, even if the hazard may be seen

after the fact as open and obvious.

It is the general contractor who has the coordinating

power and supervisory authority to ensure that this unusual

array of physical risks does not devolve into chaos, and it

is the general contractor upon whom ultimate responsibility

for the safe completion of a project rests. As the overall

coordinator of this activity, the general contractor is

best situated to ensure workplace safety at the least cost.

Because of this position, the duty to keep common work

areas safe reasonably falls on the general contractor.

As our analysis today attempts to make clear, the two

doctrines at issue are independent of and distinct from one

another. The open and obvious doctrine serves as an

“integral part of the definition” of the duty a premises

possessor owes invitees, Lugo, supra at 516, while the

common work area doctrine “is an exception to the general

rule of nonliability for the negligent acts of independent

subcontractors and their employees,” under which “an

injured employee of an independent subcontractor [may] sue
17
the general contractor . . . .” Ormsby, supra at 49. The

two doctrines involve completely distinct sets of

plaintiffs and defendants, and therefore, as noted in

Perkoviq, different sets of duties.

Thus, contrary to the Court of Appeals conclusion,

this Court’s cases have not suggested that the two

doctrines are compatible, but rather have made clear that

the rationale and practical considerations underlying the

open and obvious doctrine are separate and distinct from

those that underlie the common work area doctrine. Because

we reaffirm that the two doctrines are, in fact, distinct,

we hold that the open and obvious doctrine has no

applicability to a claim under the common work area

doctrine, and therefore the trial court erred in granting

summary disposition in favor of defendants on the basis

that the pipes at issue were an open and obvious hazard.

D. Subcontractor Liability

The question remains regarding the liability of the

defendant subcontractors, Hoyt and Guideline. Plaintiff

argues that summary disposition should not have been

granted because a question of fact existed with regard to

“whether defendants negligently performed their contractual

obligations to clean up and remove safety hazards.”

Plaintiff and defendant Hoyt disagree regarding the

18

relevance of our decision in Fultz v Union-Commerce Assoc,

470 Mich 460; 683 NW2d 587 (2004).

Moreover, with respect to defendant Guideline, besides

granting summary disposition because the condition was open

and obvious, the trial court granted summary disposition on

the additional ground that no evidence was presented to

indicate that the pipes in question belonged to Guideline.

Plaintiff argues to this Court, as he did to the Court of

Appeals, that summary disposition was inappropriate with

regard to Guideline, because a genuine issue of material

fact was presented concerning whether it owned the pipes

that caused plaintiff’s fall. However, in light of its

conclusion that the open and obvious doctrine barred

plaintiff’s claim, the Court of Appeals never addressed

this alternate ground for summary disposition.

Because our decision in Fultz was released nine months

after the Court of Appeals decision in this case, and

because the Court did not address the matter of Guideline’s

ownership of the pipes, remand to the Court of Appeals is

necessary for resolution of these issues. On remand, the

Court shall first consider whether a genuine issue of

material fact exists regarding Guideline’s ownership of the

pipes. If it concludes that no such issue exists, then it

shall affirm the trial court’s grant of summary disposition

for Guideline on that ground. Should the Court conclude
19
that an issue of fact does exist, then the Court shall

consider if Guideline, along with Hoyt, owed plaintiff any

duty under Fultz.

If the Court concludes that Hoyt, Guideline, or both

owed plaintiff a duty under Fultz, the Court shall then

remand to the trial court for further proceedings against

the relevant subcontractor(s) and Turner. However, should

the Court conclude that the subcontractor(s) owed plaintiff

no contractual duty, then it shall dismiss Hoyt and

Guideline from the suit and remand for further proceedings

against Turner only.7

IV. CONCLUSION

The open and obvious doctrine has no applicability to

a claim brought under the common work area doctrine. The

two doctrines are conceptually distinct, and our case law

7
While we decline to review plaintiff’s contract-based
claim of liability in advance of the Court of Appeals, we
note in passing that the subcontractors face no liability
under the other theories addressed in this opinion. No
liability could attach under a premises liability theory,
because the subcontractors were not the premises
possessors. See Lugo, supra at 516-517. Nor can the
subcontractors face liability under the common work area
doctrine, because they did not have control of the work
area. We recognized in Ormsby, supra at 56-57, that the
common work area doctrine is only applicable to a general
contractor or to a property owner who retains sufficient
control of the work so as to act in a superintending
capacity (under the “retained control” doctrine). Here,
the subcontractors acted as neither. Thus, neither of
these doctrines serves as a basis for imposing liability on
Hoyt or Guideline.

20

has treated them as such. Accordingly, the decision of the

Court of Appeals is reversed.

However, because the Court of Appeals declined, on the

basis of its findings regarding the applicability of the

open and obvious doctrine, to review the alternate ground

for summary disposition given with respect to defendant

Guideline, and because our decision in Fultz was released

after the Court of Appeals decision in the instant case, we

remand to that Court to determine the outstanding questions

concerning the liability of the subcontractors. Once it

has resolved these questions, the Court of Appeals is

instructed to further remand to the trial court for further

proceedings consistent with this opinion with regard to

Turner and, if applicable, Hoyt and Guideline.

Stephen J. Markman
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.

21