{concurring in result only). I agree with the result reached by the majority in this case. However, I write separately to point out that the majority takes no cognizance of the effect of its analysis when read together with its decision in Ormsby v Capital Welding, Inc, 471 Mich 45; 684 NW2d 320 (2004). I believe that our jurisprudence requires that a landowner retaining control over the performance of inherently dangerous work should be liable for an injury to an independent *42contractor’s employee. The decision in this case, when read with the decision in Ormsby, suggests otherwise.1
A landowner is generally not liable to the employee of a contractor for injuries caused by the contractor’s negligence. Ante at 31. An exception has been made where the landowner retained control of the job site and inherently hazardous activities were undertaken.
The Court holds today that a landowner is not liable for a contractor’s negligence that injures the contractor’s employee engaged in an inherently dangerous activity. Ante at 38. The Court adopts Justice BRENNAN’s dissenting analysis in McDonough v Gen Motors2 and holds that the landowner has “ ‘neither the legal right nor the capability to supervise [the independent contractor’s] work.’ ” Ante at 36, quoting McDonough at 456. The landowner here is not alleged to have retained control of the job site.
As previously indicated, a landowner is liable to a contractor’s employee if he retained control over hazardous work and was positioned to ensure that the contractor took adequate precautions. Funk v General Motors Corp, 392 Mich 91, 105; 220 NW2d 641 (1974), overruled in part on other grounds by Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982).
The retained control doctrine is a distinct theory of liability. It applies where the entity engaging the services of the independent contractor has the legal right and the capability to supervise the work. Plummer v Bechtel Constr Co, 440 Mich 646, 659; 489 NW2d 66 *43(1992) (opinion by Levin, J.). The doctrine is applicable regardless of whether the employer is a landowner or a general contractor.
This case was argued and submitted together with Ormsby v Capital Welding, Inc. The Court in Ormsby holds that the retained control doctrine, applied to general contractors who utilize subcontractors, is merely an element of the common work area doctrine. It is not an independent theory of liability. Ormsby at 55-56.
If Ormsby is held to apply to landowners, the decisions here and in Ormsby, read together, could have unfortunate unintended results in future cases. The inference to be drawn from them is this: a landowner who retains control of inherently dangerous work on a job site will not be liable for injuries to a contractor’s employee unless the injury occurred in a common work area. The majority denies the validity of this inference. Id. at 60 n 13. However, the opinion’s language strongly belies that denial.
Under the tort-reform statutes, liability is almost always several only and not joint. MCL 600.2956. Legal liability is distinct from fault, although it is based on fault. Fault is determined by the trier of fact3 who assigns it, regardless of whether a party can be held legally liable. MCL 600.6304(1). However, an injured party can recover only from a party that can be held legally liable.
Under the preceding tort-reform statutes, the trier of fact can assign fault to a landowner who has directed the actions of an independent contractor engaged in an inherently dangerous activity. The Court’s opinions in DeShambo and Ormsby could be interpreted to hold *44that such a negligent landowner could escape all liability for injury caused to the employee of his contractor. The landowner cannot be held liable under the inherently dangerous activity doctrine. DeShambo. Neither can he be held liable under the retained control doctrine. Ormsby.
I believe that this result would be inconsistent with principles underlying the common law. Moreover, it would be inconsistent with the intent of the tort-reform statutes. A negligent actor is intended to be legally liable for his actions. The majority potentially undermines this principle with the holdings in these two cases. Absent language correcting this problem, the analysis in the majority opinion is unacceptable to me and I concur only in the result reached by the majority.
I dissented from the decision in Ormsby on the ground that the inherently dangerous activity doctrine and the retained control doctrine are distinct theories of tort liability.
McDonough v Gen Motors Corp, 388 Mich 430; 201 NW2d 609 (1972).
MCL 600.2957(1).