Ormsby v. Capital Welding, Inc

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

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

FILED JULY 23, 2004

RALPH ORMBSY AND KIMBERLY ORMSBY,

Plaintiffs-Appellees,

v No. 123287

CAPITAL WELDING, INC.,

Defendant-Appellant,

and

MONARCH BUILDING SERVICES, INC.,

Defendant-Appellee,

and

METROPOLITAN BUILDING SERVICES
and RITE AID OF MICHIGAN,

Defendants.
________________________________

RALPH ORMSBY and KIMBERLY ORMSBY,

Plaintiffs-Appellees,

V No. 123289

CAPITAL WELDING, INC.,

Defendant-Appellee,

and
MONARCH BUILDING SERVICES, INC.,

Defendant-Appellant,

and

METROPOLITAN BUILDING SERVICES
and RITE AID OF MICHIGAN,

Defendants.

_______________________________

BEFORE THE ENTIRE BENCH

TAYLOR, J.

We granted leave to appeal in this case to consider

the relationship between the “common work area doctrine”

and the “retained control doctrine,” and to address the

scope of each doctrine. At common law, property owners and

general contractors generally could not be held liable for

the negligence of independent subcontractors and their

employees. In Funk v Gen Motors Corp, 392 Mich 91, 104-

105; 220 NW2d 641 (1974),1 however, this Court set forth a

new exception to this general rule of nonliability, holding

that, under certain circumstances, a general contractor

could be held liable under the “common work area doctrine”

1
Overruled in part on other grounds Hardy v Monsanto
Enviro-Chem Sys, Inc, 414 Mich 29; 323 NW2d 270 (1982).

and, further, that a property owner could be held equally

liable under the “retained control doctrine.”

In this case, the Court of Appeals reversed the trial

court’s grant of summary disposition for both defendants,

holding that these doctrines are two distinct and separate

exceptions to the general rule of nonliability of property

owners and general contractors concerning the negligence of

independent subcontractors and their employees. We

disagree with the Court of Appeals and clarify today that

these two doctrines are not two distinct and separate

exceptions, rather only one—the “common work area

doctrine”—is an exception to the general rule of

nonliability for the negligent acts of independent

subcontractors and their employees. Thus, only when the

Funk four-part “common work area” test is satisfied may an

injured employee of an independent subcontractor sue the

general contractor for that contractor’s alleged

negligence.

Further, the “retained control doctrine” is a doctrine

subordinate to the “common work area doctrine” and is not

itself an exception to the general rule of nonliability.

Rather, it simply stands 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 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. Accordingly, we reverse the decision

of the Court of Appeals and reinstate the trial court’s

grant of summary disposition for both defendants.

I. Facts and Proceedings Below

This case arose out of a construction accident that

occurred during the construction of a Rite Aid store in

Troy, Michigan. Property owner Rite Aid hired defendant

Monarch Building Services, Inc. (Monarch), as the general

contractor for the project. Monarch subcontracted the

steel fabrication and steel erection work to defendant

Capital Welding, Inc. (Capital), which then subcontracted

the steel erection work to Abray Steel Erectors (Abray).

Plaintiff Ralph Ormsby was employed by Abray as a

journeyman ironworker on the site.

Capital delivered the steel for the project, at which

time a crew from Abray began erecting the building using

the steel. During the unloading process, Abray personnel

allegedly disregarded an express warning that Capital had

attached to the steel beams that stated, “Under no

circumstances are deck bundles or construction loads of any

other description to be placed on unbridged joists.” The

warning also cautioned against loading bundles of steel

decking, weighing between two and three tons each, onto the

unsecured erected steel structure.

Plaintiff began working on the unsecured joists to

properly align the joists into position. To do so, he

would strike the unsecured joist with a hammer. While

performing this task, there was a sudden shift in an

unsecured joist that, coupled with the fact that the joist

was loaded with decking, allegedly caused the collapse of

the structure, resulting in plaintiff’s fifteen foot fall

and subsequent injuries.

Plaintiff filed suit against Capital, alleging, among

other things, that Capital retained control of and

negligently supervised the project, and acquiesced to

unsafe construction activities, including loading unwelded

bar joists.2 Plaintiff later amended his complaint and

added the same claims against Monarch.

2
Although both Ormsby and his wife filed complaints,
his wife’s suit is wholly derivative. Therefore, we use
"plaintiff" in the singular.

Capital filed a motion for summary disposition

contending that there was no genuine issue of material fact

regarding whether it retained control over the project

because plaintiff failed to present any evidence that he

was injured in a common work area. Plaintiff opposed the

motion, contending instead that the two doctrines were

separate and distinct, and thus Capital could be held

liable under the “retained control doctrine” even if he

failed to satisfy the elements of the “common work area

doctrine.”

The trial court agreed with Capital and granted its

motion. Combining the doctrines of “common work area” and

“retained control,” the trial court determined that “the

retained control theory applies only in situations

involving ‘common work areas.’” The trial court further

stated, “This Court finds that there was no common work

area that created a high degree of risk to a significant

number of workers” and “there is no evidence that other

subcontractors would work on the erection of the steel

structure.” That is, the trial court found that plaintiff

had failed to satisfy two elements of the “common work area

doctrine,” and thus no genuine issue of material fact

existed regarding whether either doctrine applied to

Capital.

Following Capital’s successful motion, Monarch filed

its own motion for summary disposition under MCR

2.116(C)(10), contending that plaintiff had failed to

provide any evidence to satisfy each of the four elements

of the “common work area doctrine.” In response, plaintiff

moved for leave to amend his complaint to assert that

plaintiff was in fact injured in a “common work area” as

defined in Funk. The trial court granted Monarch’s motion

for the same reasons that it had granted the earlier

Capital motion and denied plaintiff’s motion to amend his

complaint, ruling that the amendment would be futile in

light of its ruling that there was no genuine issue of

material fact regarding the existence of a common work

area.

The Court of Appeals reversed in part, holding (1)

that the “common work area doctrine” and “retained control

doctrine” are two distinct and separate exceptions and (2)

that evidence that “employees of other subcontrators would

be or had been working in the same area where plaintiff’s

injury occurred . . . create[d] a genuine issue of material

fact regarding whether plaintiff’s injury occurred in a

common work area.” 255 Mich App 165, 188; 660 NW2d 730

(2003). Accordingly, the Court permitted plaintiff’s

“retained control” claim to proceed against Capital,3 and

permitted plaintiff’s “common work area” claim to proceed

against both Capital and Monarch. Further, the Court held

that the trial court had erred in denying plaintiff’s

motion to amend his complaint concerning his allegations

that he had been injured in a “common work area.” Both

defendants filed applications for leave to appeal with this

Court, which we granted.4

II. Standard of Review

Summary disposition under either MCR 2.116(C)(8) or

(C)(10) presents an issue of law for our determination and,

thus, "[w]e review a trial court's ruling on a motion for

summary disposition de novo." Straus v Governor, 459 Mich

526, 533; 592 NW2d 53 (1999).

When a trial court grants summary disposition pursuant

to MCR 2.116(C)(8), or (C)(10), the opportunity for the

nonprevailing party to amend its pleadings pursuant to MCR

2.118 should be freely granted, unless the amendment would

3
Regarding Monarch, the Court of Appeals concluded
that the trial court’s order granting Monarch summary
disposition on plaintiff’s retained control theory was
proper because no genuine issue of material fact existed
that Monarch had not retained control over plaintiff’s
work.
4
469 Mich 947 (2003).

not be justified. MCR 2.116(I)(5). An amendment, however,

would not be justified if it would be futile. Weymers v

Khera, 454 Mich 639, 658; 563 NW2d 647 (1997). We will not

reverse a trial court's decision to deny leave to amend

pleadings unless it constituted an abuse of discretion.

Id. at 654.

III. Analysis

As discussed briefly above, 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, this Court set forth an

exception to this general rule of nonliability. There,

property owner General Motors (GM) hired general contractor

Darin & Armstrong (Darin) to expand one of its plants. The

general contractor, in turn, subcontracted a portion of the

work to Funk’s employer, Ben Agree Company. Funk was

injured in a fall from a platform and sued GM and Darin,

alleging that each owed him a duty to implement reasonable

safety precautions and to ensure that workers on the

project used adequate safety equipment to protect against

falls. GM and Darin defended on the basis that, under the

common law, neither had a duty to protect plaintiff from

these types of dangers. Departing from established law,

this Court set forth an exception in circumstances

involving construction projects and affirmed the verdict

against Darin:

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. [Funk, supra at
104.]

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.

Having established that a general contractor could be

held liable for negligence regarding job safety, the Court

then addressed the potential liability of a property owner.

The Court held that, under the new rule, a property owner

could itself be liable if it had “retained control” in such

a way that it had effectively stepped into the shoes of the

general contractor and been acting as such. The Court

first stated:

This analysis [i.e., the “common work area”
test quoted above in reference to the general

contractor] would not ordinarily render a “mere”
owner liable. In contrast with a general
contractor, the owner typically is not a
professional builder. Most owners visit the
construction site only casually and are not
knowledgeable concerning safety measures. . . .
Supervising job safety, providing safeguards, is
not part of the business of a typical owner.
[Id. at 104-105 (emphasis added).]

Then it continued by outlining the circumstances in which

the ordinary rule would not control, saying:

[T]he law does not . . . absolve an owner
who acts in a superintending capacity and has
knowledge of high degrees of risk faced by
construction workers from responsibility for
failing to require observance of reasonable
safety precautions. [Id. at 106-107.]

The Court’s use of the word “ordinarily,” italicized above,

considered in conjunction with its statement that a

property owner cannot escape liability if that owner acts

in a “superintending capacity and has knowledge of high

degree of risk faced by construction workers,” necessarily

implies that, under certain circumstances, the “common work

area” doctrine would render a property owner liable.5 Thus,

it is clear that this Court was applying the identical

5
The Court also stated that “[a]n owner is responsible
if he does not truly delegate—if he retains ‘control’ of
the work—or if, by rule of law or statute, the duty to
guard against the risk is made ‘nondelegable.’” Id. at 101
(emphasis added).

“common work area” analysis to GM, as property owner, on

the basis that it “retained control.”

Applying these new doctrines to the facts in Funk, the

Court noted that Funk had largely created his own

circumstances because he essentially “dug a hole and . . .

[he] fell into it,” id. at 100. The general contractor,

Darin, was fully knowledgeable of the subcontractor’s

failure to implement reasonable safety precautions for a

readily apparent danger where such precautions likely would

have prevented Funk’s fall. Further, the Court held that

GM had exercised “an unusually high degree of control over

the construction project,” and thus was also liable for

Funk’s injuries. Id. at 101. Thus, this Court stated that

the evidence supported a finding of GM’s tacit, if not

actual, control of safety measures or the lack thereof “in

the highly visible common work areas.” Id. at 107.

Accordingly, we conclude that, on the basis of this

Court’s analysis in Funk, the “common work area doctrine”

and the “retained control doctrine” are not two distinct and

separate exceptions. Rather, the former doctrine is an

exception to the general rule of nonliability of property

owners and general contractors for injuries resulting from

the negligent conduct of independent subcontractors or their

employees. Thus, only when the Funk four-part “common work

area” test is satisfied may a general contractor be held

liable for alleged negligence of the employees of

independent subcontractors regarding job safety. The

“retained control” control doctrine is merely a subordinate

doctrine, applied by the Funk Court to the owner defendant,

that has no application to general contractors.6

In her dissent in Funk, Justice Coleman was concerned

that the “common work area doctrine” would devolve in

practice into a strict liability regime where general

contractors would be responsible for any common work area

injury that an employee of an independent subcontractor

suffers. Id. at 116. Although Justice Coleman’s concerns

have not come to fruition,7 Funk has morphed from a

straightforward doctrine conferring liability, under certain

circumstances, on property owners or general contractors for

the negligence of independent subcontractors, into a “two

6
The Funk Court applied the “retained control”
doctrine to the property owner defendant in that case. The
owner of the subject property in this case, Rite Aid, was
dismissed early in the litigation, and its liability is not
at issue. It is therefore unnecessary to address owner
liability, and we express no opinion regarding the Funk
“retained control” doctrine as it applies to property
owners.
7
Neither defendant nor any brief amicus curiae has
urged the Court to overrule Funk, but only to clarify the
nature of the Funk holding.

exception” creation. Indeed, the instant opinion by the

Court of Appeals outlined that progression8 and proceeded to

erroneously conclude that even an entity that is neither a

8
As the Court of Appeals read the cases, Erickson v
Pure Oil Corp, 72 Mich App 330, 335-336; 249 NW2d 411
(1976), distinguished the doctrines of “retained control”
and “common work area” and applied them separately; Signs v
Detroit Edison Co, 93 Mich App 626, 632; 287 NW2d 292
(1979), addressed general contractor liability based on
“retained control” even though it found that the plaintiff
was not injured in a “common work area”; Samhoun v
Greenfield Constr Co, Inc, 163 Mich App 34, 45; 413 NW2d
723 (1987), blended the doctrines of “retained control” and
“common work area”; Johnson v Turner Constr Co, 198 Mich
App 478, 480; 499 NW2d 27 (1993), separately addressed the
two doctrines; Phillips v Mazda Motor Mfg (USA) Corp, 204
Mich App 401, 408; 516 NW2d 502 (1994), addressed the
doctrines of “retained control” and common work area”
separately; Hughes v PMG Building, 227 Mich App 1, 8; 574
NW2d 691 (1997), discussed the “common work area doctrine”
without reference to the “retained control doctrine”;
Kubisz v Cadillac Gage Textron, Inc, 236 Mich App 629, 636;
601 NW2d 160 (1999), discussed the “retained control
doctrine” as a "second main exception" to the general rule
of nonliability for the negligence of an independent
contractor without mentioning the four-part test in Funk or
addressing whether the plaintiff's injury occurred in a
“common work area”; Candelaria v B C Gen Contractors, Inc,
236 Mich App 67, 74; 600 NW2d 348 (1999), stated that the
“retained control doctrine” applies only in those
situations involving “common work areas.”

Unfortunately, our post-Funk decisions that have
addressed the “retained control” and “common work area”
doctrines have been plurality opinions, and, as explained
in Dean v Chrysler Corp, 434 Mich 655, 661 n 7; 455 NW2d
699 (1990), are not binding authority. See Beals v Walker,
416 Mich 469; 331 NW2d 700 (1982), Plummer v Bechtel Corp,
440 Mich 646; 489 NW2d 66 (1992), and Groncki v Detroit
Edison, 453 Mich 644; 557 NW2d 289 (1996).

property owner nor a general contractor (subcontractor

Capital) can be liable under Funk.

IV. Application

To establish the liability of a general contractor

under Funk, a plaintiff must prove four elements: (1) that

the defendant 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.9 Id. at 104.

9
With reference to element four—a common work area—we
agree with the following statement from Hughes, supra at 8-
9, in which the court concluded that an overhang on a porch
did not constitute a common work area:

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.
This Court has previously suggested that the
Court’s use of the phrase "common work area" in
Funk, supra, suggests that the Court desired to
limit the scope of a general contractor's
supervisory duties and liability. We thus read
the common work area formulation as an effort to
distinguish between a situation where employees
of a subcontractor were working on a unique
project in isolation from other workers and a
(continued…)

Funk is simply inapplicable to Capital in this case

because Capital was neither the property owner nor the

general contractor. Thus, the trial court’s order granting

it summary disposition was proper. Accordingly, we reverse

the judgment of the Court of Appeals and reinstate the

trial court’s order granting summary disposition for

Capital.10

Because Monarch was the general contractor, the

“common work area doctrine” may be applicable. The trial

court determined that plaintiff had failed to satisfy

element three, danger creating a high degree of risk to a

(…continued)
situation where employees of a number of
subcontractors were all subject to the same risk
or hazard. In the first instance, each
subcontractor is generally held responsible for
the safe operation of its part of the work. In
the latter case, where a substantial number of
employees of multiple subcontractors may be
exposed to a risk of danger, economic
considerations suggest that placing ultimate
responsibility on the general contractor for job
safety in common work areas will "render it more
likely that the various subcontractors . . . will
implement or that the general contractor will
himself implement the necessary precautions and
provide the necessary safety equipment in those
areas." Funk, supra at 104 (citations omitted).
10
Justice Kelly has concluded in her partial dissent
that plaintiffs’ lawsuit against Capital should be allowed
under Funk. This deviates from Funk because Funk only
authorized claims against owners and general contractors.
Capital is neither.

significant number of workmen, and element four, a common

work area, and thus granted summary disposition for

Monarch. This approach is consistent with Funk and

reflects the understanding that a plaintiff’s failure to

satisfy any one of the four elements of the “common work

area doctrine” is fatal to a Funk claim.11

The Court of Appeals, misapprehending the merit of the

trial court’s approach, reversed the decision of the trial

court on the basis that it erred in finding that no genuine

issue of material fact existed regarding element four—a

“common work area.” Regardless of whether a genuine issue

of material fact existed with respect to element four,

reversal was erroneous because the Court of Appeals

overlooked the fact that the trial court’s order was

premised not just on a deficiency of evidence regarding

element four, but also on the fact that no genuine issue of

material fact existed regarding element three—danger

creating a high degree of risk to a significant number of

11
It is potentially confusing and, indeed, may have
misled some courts, that a test with four elements has been
referred to by only one of its elements—the “common work
area.” What is commonly referred to as the “common work
area doctrine,” however, has four separate elements, all of
which must be satisfied before that doctrine may apply.

workmen.12 Inasmuch as Funk requires a plaintiff to

establish all four elements of the “common work area

doctrine” to prevail, the trial court ruling should have

been affirmed. Thus, the trial court did not abuse its

discretion by refusing to allow plaintiff to amend his

complaint concerning the existence of a “common work area,”

because such an amendment would have been futile.

Accordingly, we reverse the judgment of the Court of

12
Justice Kelly asserts in her dissent that the Court
of Appeals disagreed with the trial court’s conclusion that
plaintiff had failed to establish a genuine issue of
material fact that a high degree of risk to a significant
number of workers existed. This is incorrect. The Court
of Appeals specifically stated that it limited its
discussion and decision to the question whether plaintiff
was injured in a common work area. 255 Mich App at 188.
Justice Kelly goes on to indicate that she would find a
genuine issue of material fact whether a significant number
of workers were exposed to danger on the basis that a mason
was right below plaintiff when he fell, and because any
worker at the site would be working in, around and under
the steel structure after it was erected and all such
workers would be exposed to an extremely dangerous
condition if the structure was not competently constructed.
We disagree. The fact that one worker was below plaintiff
when he fell certainly does not establish a genuine issue
of material fact regarding whether a high degree of risk to
a significant number of workers existed. Justice Kelly’s
vague reference to “any worker” being exposed to danger if
the structure was not competently construed is likewise
insufficient to create a genuine issue of material fact.
The high degree of risk to a significant number of workers
must exist when the plaintiff is injured; not after
construction has been completed.

Appeals and reinstate the trial court’s grant of summary

disposition for Monarch.

V. Conclusion

The doctrines of “common work area” and “retained

control” are not two distinct and separate exceptions.

Rather, under the “common work area doctrine,” a general

contractor may be held liable for the negligence of its

independent subcontractors only if all the elements of the

four-part “common work area” test set forth in Funk have

been satisfied. Further, the “retained control doctrine”

is subordinate to the “common work area doctrine” and

simply stands for the proposition that when the “common

work area doctrine” would apply, and the property owner has

stepped into the shoes of the general contractor, thereby

“retaining control” over the construction project, that

owner may likewise be held liable for the negligence of its

independent subcontractors.13 Because neither Capital nor

Monarch satisfies all four elements of the “common work

area” doctrine, we reverse the judgment of the Court of

13
We reiterate that we are merely clarifying Funk and
we express no opinion concerning whether the Funk Court
properly imposed liability on an owner under the “retained
control” doctrine.

Appeals and reinstate the trial court’s grant of summary

disposition for both defendants.

Clifford W. Taylor
Maura D. Corrigan
Elizabeth A. Weaver
Robert P. Young, Jr.
Stephen J. Markman

S T A T E O F M I C H I G A N

SUPREME COURT

RALPH ORMSBY AND KIMBERLY ORMSBY,

Plaintiffs-Appelleess,

v No. 123287

CAPITAL WELDING, INC.,

Defendant -Appellant,

and

MONARCH BUILDING SERVICES, INC.,

Defendant-Appellee,

and

METROPOLITAN BULDING SERVICES
and RITE AID OF MICHIGAN,

Defendants.
________________________________

RALPH ORMSBY AND KIMBERLY ORMSBY,

Plaintiffs-Appellees,

v No. 123289

CAPITAL WELDING, INC.,

Defendant-Appellee,

and

MONARCH BUILDING SERVICES, INC.,

Defendant-Appellant,
and

METROPOLITAN BUILDING SERVICES
and RITE AID OF MICHIGAN,

Defendants.

_______________________________

CAVANAGH, J. (concurring in result only).

I concur in the result reached by the majority.

However, I write separately because I would reach that

result regardless of whether the doctrines of retained

control and common work area are separate doctrines. I

agree with the majority that the trial court’s grant of

summary disposition to both defendants should be reinstated

because the dispositive issues in this case are not

affected by whether the doctrines are separate or one is

subordinate to the other. I, however, cannot join the

majority because this Court has routinely treated the

doctrines of retained control and common work area as two

separate and distinct doctrines. See Plummer v Bechtel

Constr Co, 440 Mich 646; 489 NW2d 66 (1992); Groncki v

Detroit Edison Co, 453 Mich 644; 557 NW2d 289 (1996).

Regardless of whether the doctrine of retained control

is subordinate to or separate from the common work area

doctrine, it is only applicable to property owners, and

because neither defendant Capital nor defendant Monarch is

the property owner, the trial court was correct to grant

each defendant’s motion for summary disposition with

respect to the doctrine of retained control.

Further, the common work area doctrine does not apply

to subcontractors, thus the trial court was correct to

grant defendant Capital’s motion for summary disposition

with respect to common work area liability. See Funk v Gen

Motors Corp, 392 Mich 91, 104; 220 NW2d 641 (1974). The

trial court was also correct to grant defendant Monarch’s

motion for summary disposition with respect to the common

work area doctrine. Regardless of when the danger to a

significant number of workers must exist, plaintiff failed

to show that a genuine issue of material fact existed about

whether there was danger creating a high degree of risk to

a significant number of workers. Because plaintiff failed

to establish a genuine issue of material fact and because

defendant Monarch was entitled to judgment as a matter of

law, the trial court was correct to grant defendant

Monarch’s motion for summary disposition. Thus, I concur

in the result only.

Michael F. Cavanagh

S T A T E O F M I C H I G A N

SUPREME COURT

RALPH ORMSBY AND KIMBERLY ORMSBY,

Plaintiffs-Appellees,

v No. 123287

CAPITAL WELDING, INC.,

Defendant-Appellant,

and

MONARCH BUILDING SERVICES, INC.,

Defendant-Appellee,

and

METROPOLITAN BUILDING SERVICES
and RITE AID OF MICHIGAN,

Defendants.
_______________________________

RALPH ORMSBY and KIMBERLY ORMSBY,

Plaintiffs-Appellees,

v No. 123289

CAPITAL WELDING, INC.,

Defendant-Appellee,

and

MONARCH BUILDING SERVICES, INC.,

Defendant-Appellant,
and

METROPOLITAN BUILDING SERVICES
and RITE AID OF MICHIGAN,

Defendants-Not participating.
_______________________________

KELLY, J. (concurring in part and dissenting in part).

This Court granted leave limited to whether the

retained control doctrine and the common work area doctrine

are separate and to a discussion of the scope of each

doctrine. 469 Mich 947 (2003). The majority holds that the

doctrines are not separate as applied to general

contractors who utilize subcontractors. Ante at 3-4.

I respectfully dissent. I believe that the retained

control doctrine and the common work area doctrine are

distinct theories of liability. They are founded on

different premises. Like all common law tort theories,

they reinforce distinct social norms.1

The retained control doctrine applies to one who

engages an independent contractor but retains actual

control over the manner in which the work is performed. It

imposes a duty to ensure that the contractor exercises due

1
See generally, 1 Dobbs, The Law of Torts, Aims,
Policies and Methods of Tort Law, Ch 1, Topic B, p 12 ff.

care for the safety of others. See 2 Restatement of Torts

2d, § 414, p 387. It deters undesirable conduct.

The common work area doctrine arises from the

characteristics of common work areas and the efficiency of

imposing responsibility on the entity that has

responsibility over the entire area. Funk v Gen Motors

Corporation, 392 Mich 91, 104; 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).

Whether either of these doctrines applies in a given

case is a question of fact. The majority affirms the trial

court’s determination that plaintiff failed to create a

genuine issue of material fact on the third element of the

common work area doctrine. The trial court held that

plaintiff failed to establish that there was a danger

creating a high degree of risk to a significant number of

workers.2 Ante at 18. The Court of Appeals held that

plaintiff presented evidence that other workers “would be

or had been working in the same area where plaintiff’s

injury occurred”. 255 Mich App 165, 188; 660 NW2d 730

(2003).

2
See Groncki v Detroit Edison Co, 453 Mich 644, 662;
557 NW2d 289 (1996) (Brickley, C.J.), citing Funk, supra at
104.

Plaintiff testified that a mason was working “right

below” him when the steel structure collapsed. This is

evidence that other workers were in, around, and under the

structure while it was being erected. It is reasonable to

infer that other workers would continue to be in, on, and

around it as construction continued. If the structure were

not built competently, an extremely dangerous condition

would exist that the structure would collapse. It is of no

moment that there happened to be only one worker in the

area at the time of the accident.

The Court of Appeals Decision is Correct

I agree with the Court of Appeals. Plaintiff's

testimony is sufficient to create a genuine issue of

material fact regarding whether a significant number of

workers in addition to the mason were exposed to the

danger.

Moreover, plaintiff presented evidence that defendant

Capital Welding retained control over the manner in which

the work of Capital's subcontractor, Abray, was performed.

Capital’s field superintendent stated that he instructed

Abray's ironworkers on proper erection. Plaintiff, Abray's

employee, testified that Capital's superintendent

instructed him on particular aspects of the job.3

The contract between Capital and Monarch obligated

Capital to undertake safety precautions for the steel

erection work. Capital’s field superintendent stated that

he had the authority to remove a contractor from the site

for safety violations. Therefore, Capital retained its

responsibility to ensure that the steel was erected safely

after subcontracting the work to Abray, plaintiff’s

employer.

An analogy between Funk and this case is appropriate.

Funk did not explicitly limit its reasoning to landowners

and general contractors. The landowner there was liable to

its contractor's employee because it retained control over

the safety precautions implemented on the site. See Funk

at 107-108. In this case, plaintiff presented evidence

that Capital retained control over the methods and safety

procedures for Abray's erection of the steel. Capital

stands in the identical position to plaintiff as the

landowner in Funk did as to Funk. Accordingly, it was not

3
Plaintiff was told to fabricate lugs that would be
welded to the structure’s columns.

entitled to summary disposition on the proposition that it

could not be liable to its contractor's employee.

However, with respect to Monarch, plaintiff failed to

establish that Monarch had anything more than general

oversight of the construction. This is insufficient to

establish liability under either the common work area

doctrine or the retained control doctrine. Johnson v

Turner Constr Co, 198 Mich App 478, 480; 499 NW2d 27

(1993). Monarch was entitled to summary disposition.

Possible Unintended Results of the

DeShambo and Ormsby Decisions

DeShambo4 and Ormsby read together could have

unfortunate unintended results in future cases. Under the

tort reform statutes, with few exceptions, liability is no

longer joint but only several. MCL 600.2956. It is based

on fault. MCL 600.2957(1). The fault of a party is

determined by the trier of fact regardless of whether the

party can be held legally liable. MCL 600.6304(1).

4
This case was argued and submitted together with
DeShambo v Anderson, 471 Mich ; NW2d (2004).
DeShambo holds that a landowner is not liable for an
independent contractor’s negligence that injures an
employee of that contractor who is engaged in an inherently
dangerous activity. Slip op at ___. The analysis in
Ormsby could logically be extended to preclude liability of
a landowner under the combined common work area/retained
control doctrine as well.

However, an injured individual can recover only from a

party that can be held legally liable. The trier of fact

may assign fault to one who engages an independent

contractor and then negligently directs the actions of that

contractor. But under today's decisions in Ormsby and

DeShambo, such an employer, landowner or otherwise, could

not be held liable unless an injury occurs in a common work

area. Hence, employers now can conceivably escape all

liability for their own negligence in a given accident.

I believe that this result is not consistent with the

principles underlying the common law. It is inconsistent,

also, with the intent of the tort reform statutes. A

negligent actor should be legally liable for his actions.

Because the majority's decision undermines this principle,

I disagree and would affirm the decision of the Court of

Appeals.

Marilyn Kelly