Plummer v. Bechtel Construction Co.

Boyle, J.

I concur in Justice Levin’s result. I write separately simply to reaffirm that the policy on which the duty recognized in Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), is premised is the implementation of reasonable safeguards against high degrees of injury in common work areas at construction sites. Id. at 104. Where control is effectively retained, a relational obligation is created and a duty is recognized.1 While the *670existence of duty is a question of law, fact issues may be involved in application of the rule. Where varying inferences of fact are possible, the duty imposed will depend on the facts found. Elbert v Saginaw, 363 Mich 463, 469; 109 NW2d 879 (1961).

Funk provided that an owner who "acts in a superintending capacity and has knowledge of high degrees of risk faced by construction workers [is not absolved] from responsibility for failing to require observance of reasonable safety precautions” and may be held liable for its negligence. Id. at 106-107.

Detroit Edison has sought to buttress the Court of Appeals ruling by emphasizing that the evidence regarding its role in the project was "primarily contractual control, safety inspections, and general oversight.” It has argued in this Court that there was no evidence demonstrating its involvement in the actual construction work. To be sure, not all courts agree that retention of control that is contractual alone or that pertains to safety aspects, rather than actual construction, warrants the imposition of a duty on an owner.2 Detroit Edison’s argument would limit the retained-control exception to instances where an owner actually exercised contractually retained control and that control pertained to the manner of con*671struction, but not to control of details of construction relating to the safety aspects of the job.3 The scope of duty recognized by this Court in Funk is limited; the limits are provided by the extent of control retained. Both contractual provisions between the owner, general contractor, and various subcontractors, and the actual control exercised are relevant considerations in determining whether an owner (or general contractor) retained control.

Justice Griffin suggests that the imposition of a duty where control is retained only with respect to the safety aspects of the job presents the possibility that owners will forgo emphasis on worker safety. Post, pp 677-678. I cannot agree that the majority’s result will cause responsible owners to disavow an interest in the safety of workers. Humane, economic, and public relations considerations all counsel against such a course of action.

Thus, an exception to the retention-of-control theory should not be made where the extent of control retained is limited to safety precautions to be provided on the construction site. The Arizona Supreme Court’s discussion in Lewis v Riebe Enterprises, Inc, 170 Ariz 384; 825 P2d 5 (1992), considering the liability of a general contractor is instructive here. The Lewis court noted that interpreting § 414 in that manner "negates any contractual safety responsibility assumed” by the defendant. Id. at 392. Emphasizing that the division of authority in the area of safety may cause accidents by leaving uncertainty regarding whose responsibility various tasks are, the court concluded that, where a defendant contractually assumes the responsibility for safety at a work site, it is liable *672for any injury resulting from its negligent exercise of that responsibility as long as the general contractor (or owner) " '[knew] or by the exercise of reasonable care should [have known] that the subcontractors’ work [was being done in a dangerous manner], and ha[d] the opportunity to prevent it by exercising the power of control which he . . . retained in himself.’ ” Id. at 392 quoting 2 Restatement Torts, 2d, § 414, comment (b), p 388.

The question whether Detroit Edison was negligent is dependent on the degree of control in fact retained by Detroit Edison. The scope of Detroit Edison’s duty is limited by the extent to which it retained control. See Lewis v Riebe Enterprises, Inc, supra, pp 388-389. Thus, if it retained control solely to inspect the job site to determine that it received the benefit of the work for which it contracted, then its duty would be similarly limited.4 In this case, conflicting inferences regarding the extent of retained control were possible.

The evidence regarding Edison’s role at the site was sufficient for a jury to conclude that it retained control of the safety aspects of the job and that its negligence regarding those aspects was a proximate cause of plaintiff’s injuries. Plaintiff presented evidence tending to show that Detroit Edison had extensive experience in constructing power plants, that it had 100 to 125 employees on the site, that it provided a safety coordinator who was at the site on a daily basis, and that the safety coordinator’s job was to assure that each employer had an adequate safety program. Testimony was presented tending to show that Detroit Edison sought to centralize the flow of information necessary to ensure safety at the site. Further testi*673mony was offered tending to prove that Detroit Edison required subcontractors to carry out safety programs, that it was involved in establishing the content of weekly safety meetings held by subcontractors, and that it was entitled to fire, or require Bechtel to fire, any subcontractor not taking appropriate precautions.

Thus, the trial court correctly submitted the issue to the jury. Bonin v Gralewicz, 378 Mich 521, 526-527; 146 NW2d 647 (1966). The factfinder could conclude from this evidence that Detroit Edison retained control of the safety program. If the jury drew this conclusion, then the court was obligated to rule that Detroit Edison had a duty to ensure that it carried out this responsibility without negligence. Whether Detroit Edison properly performed its duties in that regard and whether any failure proximately caused plaintiff’s injuries were also jury questions.

Mallett, J., concurred with Boyle, J.

Although I agree that retention of control regarding safety may give rise to a duty, I do not adopt Justice Levin’s explanation regarding the relationship between the duty and standard of care issues. Similarly, while I do not subscribe to all of the observations in part iv of Justice Levin’s opinion, I agree with his conclusion that there was sufficient evidence to justify the jury’s decision that this *670was a common work area. Funk does not require that two or more subcontractors actually be working at the same time in the same place.

Compare Wilson v Portland General Electric Co, 252 Or 385, 395-396; 448 P2d 562 (1968) (the court concluded that because the right of the defendant to take over safety precautions did not increase the risk to the plaintiff, it could not render the defendant liable to the injured subcontractor’s employee), with Pasko v Commonwealth Edison Co, 14 Ill App 3d 481; 302 NE2d 642 (1973) (the court found that a failure to properly exercise retained control over the safety aspects of the job may give rise to liability), and Smith v United States, 497 F2d 500 (CA 5, 1974) (a prime contractor was held to have retained control on the basis of contractual authority over safety procedures despite the fact that the contractor had not exercised that control).

Because it is undisputed that Detroit Edison exercised contractual authority at least as it related to safety coordination and inspection, no question is presented regarding whether contractually retained authority alone suffices.

An owner who retained control only for the purpose of inspecting work done to ensure receipt of that which was paid for is unlikely to be liable because the duty would be limited in this way.