Latham v. Barton Malow 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 APRIL 14, 2008

DOUGLAS LATHAM,

Plaintiff-Appellee,

v No. 132946

BARTON MALOW COMPANY,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

TAYLOR, C. J.

In this case, we analyze what comprises the element of “readily observable

and avoidable dangers” in a lawsuit involving a “common work area” of a

construction site. In Funk v Gen Motors Corp,1 this Court established the

common-work-area doctrine, which by its elements is not a strict liability tort but

is instead one that imposes liability only if the general contractor itself fails to

1
Funk v Gen Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), overruled
in part on other grounds Hardy v Monsanto Enviro-Chem Sys, Inc, 414 Mich 29
(1982).
prevent negligence.2 Thus, the danger cannot be just the unavoidable, perilous

nature of the site itself. Rather, the danger for which a duty attaches is an

avoidable danger to which a significant number of workers are exposed, such as—

in Funk and this case—failure to have fall-protection devices to protect workers

from falling from a height on the project. The lower courts erred in ascertaining

the relevant danger, basing their analyses on the conclusion that an elevated

mezzanine, which at the time of the injury was necessarily without perimeter

protection, itself created a high degree of risk to a significant number of workers.

Instead, the proper danger to focus on was working at dangerous heights without

any protection from falls, and the proper analysis concerned whether a significant

number of workers were exposed to this avoidable risk.

Because both lower courts misapprehended the appropriate danger to

examine and decided the case on that erroneous basis, they also erred on the issue

whether a significant number of workers would be exposed to the relevant peril.

With the appropriate danger clarified, we reverse the judgment of the Court of

Appeals and remand this case to the trial court for further proceedings consistent

with this opinion.

I

Plaintiff was a carpenter employed by B & H Construction to work on the

construction of a new school building. Defendant Barton Malow Company was

2
Funk, supra at 108.

2

the construction manager on the project.3 On the day of plaintiff’s injury, plaintiff

and a coworker were moving sheets of drywall from a scissors lift to the

mezzanine level of the project. They raised the lift to the height of the mezzanine

and removed the cable barrier around the perimeter of the mezzanine, an action

required to allow ingress. When they began carrying the first sheet of drywall

from the lift to the mezzanine, plaintiff was not wearing a fall-protection harness,

contrary to jobsite rules of which he was aware. As plaintiff was moving onto the

mezzanine, the sheet of drywall cracked and plaintiff lost his balance, falling 13 to

17 feet to the floor. He was injured, but undisputedly would not have been had he

been wearing the required protective harness.

Plaintiff sued defendant for negligent performance of a contract4 and

negligence under the common-work-area doctrine, under which a general

contractor may be held liable for injuries caused by dangers in common work

areas. The elements of such a claim are: (1) 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 workers (4) in a common work area.5 Plaintiff

3
For purposes of its summary disposition motion, defendant conceded that
it served as general contractor for the project. Accordingly, the trial court made no
decision regarding that issue.
4
This claim was dismissed by the trial court and is not at issue here.
5
Ormsby v Capital Welding, Inc, 471 Mich 45, 57; 684 NW2d 320 (2004);
Funk, supra at 104.

3

asserted that defendant had failed to ensure that plaintiff would use proper fall

protection while working on the lift and the mezzanine, despite knowing that such

protection was necessary when the perimeter cable was lowered.

Because numerous other workers from other trades would be required to

use the lift to access the mezzanine and lower the cable to enter the mezzanine,

plaintiff argued that the situation created a high degree of risk to a significant

number of workers.

Defendant moved for summary disposition under MCR 2.116(C)(10) (no

genuine issue of material fact), arguing that plaintiff had not shown the existence

of a high degree of risk to a significant number of workers because the area was

not accessible to a significant number of workers at the time of the accident and

because plaintiff’s individual failure to use fall protection did not create a high

degree of risk to a significant number of workers. Defendant also argued that

because plaintiff’s own employer was contractually responsible for its workers’

observing proper safety procedures, plaintiff had not shown that defendant failed

to act reasonably.

The trial court denied defendant’s motion for summary disposition,

concluding that plaintiff had sufficiently created a question of fact regarding the

number of workers using the area. The court did not discuss the nature of the

danger or whether there existed a high degree of risk. The trial court determined

that no dispute existed regarding whether a fall was readily avoidable if personal

4

fall protection had been used and that defendant’s safety supervisor knew this.6

While acknowledging that defendant had presented a serious challenge to

plaintiff’s allegation of unreasonable action, the court held that this was properly a

question for the jury.

The Court of Appeals affirmed.7 It agreed with the trial court that “plaintiff

faced the danger of working on an elevated platform that did not have any

permanent perimeter protection to protect him from falling while loading materials

onto the mezzanine.”8 It said that the trial court properly focused on the

mezzanine’s lack of perimeter protection, not plaintiff’s failure to use personal fall

protection, even though the Court acknowledged that such protection would have

prevented plaintiff’s injuries. The Court determined that a significant number of

workers from other trades would be exposed to the same hazard of having to use

the unprotected mezzanine opening when entering and leaving the lift and

disagreed with defendant that the number of workers present at the specific time of

the injury was relevant.9 The Court concluded that defendant had supervisory and

controlling authority over the jobsite and that the mezzanine was a common work

6
Notably, in its discussion of plaintiff’s active negligence claim, the trial
court observed that “[p]laintiff had tools of the trade available to protect himself
and [sic] which should have been provided by his employer, or which he should
have been trained to use by his employer.”
7
Latham v Barton Malow Co, unpublished opinion per curiam of the Court
of Appeals, issued October 17, 2006 (Docket No. 264243).
8
Id. at 3.
9
Id.

5

area.10 The Court held that the four elements of the common-work-area doctrine

were met because a question of fact existed regarding whether defendant took

reasonable steps to guard against the danger.

Defendant applied for leave to appeal, and we ordered oral argument on

whether to grant the application or take other action, directing the parties to

address (1) whether the proofs presented in the trial court were sufficient to satisfy

the standard for general contractor liability set forth in Ormsby v Capital Welding,

Inc11 and (2) whether defendant’s motion for summary disposition should have

been granted.12

II

This Court reviews de novo a trial court’s grant or denial of a motion for

summary disposition.13 We review a motion brought under MCR 2.116(C)(10) by

considering the pleadings, admissions, and other evidence submitted by the parties

in the light most favorable to the nonmoving party.14 Summary disposition is

10
Id. at 4. Because defendant had conceded for purposes of the motion
hearing that the mezzanine was a common work area, the trial court made no
finding on the issue.
11
Ormsby, n 5 supra.
12
Latham v Barton Malow Co, 477 Mich 1118 (2007).
13
Ormbsy, supra at 52.
14
Greene v A P Products, Ltd, 475 Mich 502, 507; 717 NW2d 855 (2006).

6

appropriate if there is no genuine issue regarding any material fact and the moving

party is entitled to judgment as a matter of law.15

III

In Funk, this Court, exercising its common-law authority, expanded the

duties of those ultimately in control of a construction project worksite (most often

the general contractor) by creating the common-work-area doctrine. This doctrine

was described as follows:

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.[16]

The doctrine is understood as an exception to the general rule that, in the

absence of its own active negligence, a general contractor is not liable for the

negligence of a subcontractor or a subcontractor’s employee17 and that the

immediate employer of a construction worker is responsible for the worker’s job

safety.18

Essentially, the rationale behind the Funk doctrine is that the law should be

such as to discourage those in control of the worksite from ignoring or being

careless about unsafe working conditions resulting from the negligence of

15
Id.

16
Id. at 104.

17
Ormsby, supra at 53.

18
Funk, supra at 102.

7

subcontractors or the subcontractors’ employees. This Court explored the history

of the doctrine in depth in Ghaffari v Turner Constr Co,19 in which we observed

that “‘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.’”20 Subcontractors and their employees, even if they are aware of

hazards, may be unable to rectify the situation themselves or to compel others to

do so.21 In cases in which normal safety precautions can reduce a hazardous

condition so that it no longer creates a high degree of risk to workers, the general

contractor’s duty is to take reasonable steps to ensure that those safety precautions

are taken.22 In such cases, in order to state a cause of action against a general

contractor under the common-work-area doctrine, the plaintiff must show that the

general contractor’s failure to reasonably ensure that workers were observing

safety procedures resulted in a significant number of workers being exposed to a

high degree of risk in a common work area.

The fundamental question presented in this case, in which the general

contractor was in control of the worksite, is: What was the danger creating a high

degree of risk that is the focus of the general contractor’s responsibility? Funk

itself provides assistance in answering this question. There, this Court analyzed a

19
Ghaffari v Turner Constr Co, 473 Mich 16; 699 NW2d 687 (2005).
20
Id. at 20, quoting Funk, supra at 104.
21
Funk, supra at 104.
22
Ormsby, supra at 54, quoting Funk, supra at 106-107.

8

similar common-work-area fall. In Funk, as here, the plaintiff would not have

been injured had he worn a fall-protection device or had netting been provided.

This Court agreed with the Funk plaintiff that the defendants

exposed him to avoidable injury by allowing subcontractors to order
the men to work at dangerous heights without any protection from
falls in a job environment in which laborers were expected to
complete their assigned tasks without regard to the absence of safety
equipment guarding against injury in the event of a mishap.[23]

The Court in Funk was clear that the danger at issue was not the height

itself, but the fact that the men were required to work “at dangerous heights

without any protection from falls.” To hold that the unavoidable height itself was

a danger sufficient to give rise to a duty would essentially impose on a general

contractor strict liability for any injury resulting from a fall from an elevated

common work area. This has never been the law. Moreover, because working at

heights is generally an unavoidable condition of construction work, it cannot, by

itself, be the avoidable danger Funk described. Hazards, including dangerous

heights, are commonplace in construction worksites. In some situations, a general

contractor may be able to remove a particular hazard, but general contractors

simply cannot remove all potential hazards from a construction workplace. If a

hazard cannot be removed, the general contractor can take reasonable steps to

require workers to use safety equipment and procedures, thereby largely reducing

or eliminating the risk of harm in many situations.

23
Funk, supra at 100.

9

 Accordingly, in this case, as in Funk, the danger that created a high degree

of risk is correctly characterized as the danger of working at heights without fall-

protection equipment. It is this danger to which a significant number of workers

must be exposed in order for a claim to exist.24

IV

With the relevant danger correctly perceived, the error of the lower courts’

analyses becomes apparent. While defendant’s motion for summary disposition

identified the correct danger and further raised the issue that plaintiff’s own failure

to wear a fall-protection device did not create a high degree of risk to a significant

number of workers, the trial court and the Court of Appeals erred by

misidentifying the danger and inevitably erred in the subsequent analysis

regarding how many other workers were exposed to the risk.25 We therefore

24
The dissent’s formulation of the common-work-area doctrine is hard to
understand. As we grasp it, its central failing is that the dissent fails to concede
that Funk applies only to avoidable dangers. Heights on construction projects, we
conclude, as did the Funk Court, are not avoidable. Thus, heights are not by
themselves hazards addressed by Funk. We have never said what fall-protection
gear is needed at heights. The question is whether fall protection was available
and whether the general contractor took reasonable steps to see that it was used.
The dissent appears to assert that the issue is, however, one of strict liability for
the general contractor, not an issue of taking reasonable steps. In short, under the
dissent’s analysis, Funk would be not a negligence rule, as it was designed to be,
but would instead be a strict-liability rule.
25
Although we focus here on only one of the common-work-area elements,
we note that plaintiff must satisfy all the elements that give rise to a duty owed by
a general contractor. Funk also requires plaintiff to show that the failure of a
significant number of workers to take safety precautions was readily observable
and that the failure was avoidable. Finally, the plaintiff must, of course, also show
(continued…)

10

reverse the judgment of the Court of Appeals and remand this case to the trial

court for further proceedings consistent with this opinion.

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

(…continued)

that the defendant failed to take reasonable steps to ensure compliance and that the

danger existed in a common work area.

11

 STATE OF MICHIGAN

SUPREME COURT

DOUGLAS LATHAM,

Plaintiff-Appellee,

v No. 132946

BARTON MALOW COMPANY,

Defendant-Appellant.

KELLY, J. (dissenting).

With its opinion in this case, the majority injects further confusion into the

area of negligence law. It does so by defining the danger that was present in this

case as “working at heights without fall-protection equipment.”1 This definition

conflates the questions posed by the first two elements of the common-work-area

doctrine: (1) whether the defendant contractor took reasonable steps within its

supervisory and coordinating authority and (2) whether the danger was readily

observable and avoidable.2

1
Ante at 10.
2
In Ormsby v Capital Welding, Inc, 471 Mich 45, 54; 684 NW2d 320 (2004),
the Court listed the four elements of the common-work-area doctrine: (1) the
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 workers (4) in a
common work area.
 The majority quotes with approval defendant’s argument that “plaintiff’s own

failure to wear a fall-protection device did not create a high degree of risk to a

significant number of workers . . . .”3 This presumes, without explanation, that

wearing personal fall protection was the only reasonable way to avoid the danger of

falling from the mezzanine. The majority makes the injured worker’s failure to

wear personal protection dispositive under the common-work-area doctrine. It does

so even though, under our system of comparative negligence, a worker’s negligence

is separate from the negligence of the general contractor.4

The majority’s resolution of this case may cause unexpected undesirable

repercussions in future negligence cases. This is because it divides the question

whether reasonable measures were taken to protect against a foreseeable risk into

(1) whether a risk existed in the first place and (2) whether plaintiff failed to protect

himself against it. The Court should avoid distorting the law of negligence in this

fashion.

I

As a rule, general contractors are not liable for the negligence of independent

subcontractors and their employees.5 In Funk v Gen Motors Corp,6 the Court set

3
Ante at 10.
4
In Hardy v Monsanto Enviro-Chem Sys, Inc, 414 Mich 29, 39; 323 NW2d
270 (1982), the Court held that a general contractor could not avoid liability “‘by
pointing to the concurrent negligence of the injured worker . . . .’” (Citation
omitted.)
5
Ormsby, 471 Mich at 53.

2

forth the common-work-area exception to this rule. The majority bases its rationale

on a passage from Funk in which the Court summarized the Funk plaintiff’s

argument that the defendants had

exposed him to avoidable injury by allowing subcontractors to order
the men to work at dangerous heights without any protection from
falls in a job environment in which laborers were expected to
complete their assigned tasks without regard to the absence of safety
equipment guarding against injury in the event of a mishap.[7]

Using this passage, the majority concludes:

The Court in Funk was clear that the danger at issue was not
the height itself, but the fact that the men were required to work “at
dangerous heights without any protection from falls.” To hold that
the unavoidable height itself was a danger sufficient to give rise to a
duty would essentially impose on a general contractor strict liability
for any injury resulting from a fall from an elevated common work
area. This has never been the law. Moreover, because working at
heights is generally an unavoidable condition of work, it cannot, by
itself, be the avoidable danger Funk described. Hazards, including
dangerous heights, are commonplace in construction worksites.[8]

The majority misreads the passage from Funk in several respects. First, the

Court in Funk specifically referred to the heights as “dangerous heights.” To say

that elevations that create a foreseeable injury from falling are not inherently

dangerous defies common sense. If such elevations were not inherently

dangerous, there would be no duty to protect the people who work there.

(…continued)
6
Funk v Gen Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), overruled
in part on other grounds by Hardy.
7
Id. at 100.
8
Ante at 9.

3

 Second, according to Funk, while dangerous heights on construction projects

may be unavoidable, injury from a fall is avoidable if reasonable measures are

taken to prevent it. Funk recognized that reasonable measures can be taken to

prevent injuries from falls. That recognition places the common-work-area

doctrine in the negligence regime rather than the strict-liability regime.9

The passage on which the majority relies faulted the general contractor for

allowing subcontractors to send their men to elevated locations “without any

protection from falls” and in “the absence of safety equipment guarding against

9
In her dissent in Funk, Justice Coleman reviewed Michigan law on
inherently dangerous activities and came to the following conclusion:
The Michigan cases are uniform in holding that generally an
employer is not liable for the torts of an independent contractor. An
exception has been developed for activities or tasks which
reasonably can be foreseen as dangerous to third parties, with a few
cases extending the exception to employees. These activities include
those dangerous despite use of all reasonable care and those
dangerous unless reasonable care is exercised . . . . It is clear that
this doctrine imposes a form of strict liability upon the owner or
employer of the independent contractor. However, such liability is
not absolute. [Id. at 135 (Coleman, J. dissenting).]

Justice Coleman correctly recognized that some dangerous activities cannot
be made safe, whereas others can be if reasonable care is exercised. She
incorrectly concluded, however, that either type of danger exposes a general
contractor to strict liability. The majority in Funk held that working on elevations
at construction sites can be made safe through reasonable precautions. In
recognizing the various reasonable precautions that could be taken, the majority
imposed on a general contractor a duty of reasonable care rather than an absolute
duty to make safe.
In Ormsby, 471 Mich at 56, the Court noted that the common-work-area
doctrine had not resulted in the imposition of strict liability on general contractors,
despite Justice Coleman’s prediction.

4

injury in the event of a mishap.”10 The passage essentially shows that the general

contractor did not take reasonable steps to protect those who worked at elevations.

The various reasonable steps identified in Funk were to make provisions for

“suspending nets, scaffolding, bucket cranes, safety belts or harnesses.”11 Thus,

Funk does not compel the conclusion the majority reaches that personal safety

protection is the only way to guard against the risk of falling from heights. Nor does

Funk redefine the danger posed by working at heights as the danger of confronting

heights without personal fall protection, as the majority does.

The majority expressly redefines danger. Implicitly, however, it presumes

that the general contractor took reasonable steps to protect workers on the job from

danger when it opines that

a general contractor may be able to remove a particular hazard, but
general contractors simply cannot remove all potential hazards from
a construction workplace. If a hazard cannot be removed, the
general contractor can take reasonable steps to require workers to
use safety equipment and procedures, thereby largely reducing or
eliminating the risk of resulting harm in many situations.[12]

This statement reveals the majority’s underlying premise that, unlike the general

contractor in Funk, the general contractor here cannot be faulted, given that it

required workers to use safety equipment and procedures. The majority also

implies that the sole cause of plaintiff’s fall was plaintiff’s own negligence in not

10
Funk, 392 Mich at 100 (emphasis added).

11
Id. at 103.

12
Ante at 9 (emphasis added).

5

wearing protective fall gear. If the majority believes that the general contractor

took reasonable measures to prevent falls from the mezzanine, it should say so.

There is no need to redefine the danger in order to reach this result.

II

Plaintiff’s evidence shows that, after the iron workers erected the steel and

the cement workers poured the floor, workers from the following trades needed

access to the mezzanine: carpenters, electricians, plumbers, painters, and a crew to

install heating, ventilation, and cooling equipment. It was estimated that

electricians, plumbers, and carpenters would use the mezzanine on numerous days,

and that workers from several trades would work there at the same time. On the

day of plaintiff’s fall, more than 30 workers were on the construction site, but

plaintiff and his coworker were the only ones working on the mezzanine.

Plaintiff and his coworker attempted to bring drywall to the mezzanine using

a 3-foot-wide scissor lift.13 The 6-foot-long safety cable blocking the opening onto

13
A scissor lift is used to lift workers, materials, and equipment to
elevations. It is attached to a moving piece of equipment and has a work platform.

(continued…)

6

the mezzanine had to be eased in order for them to bring up the drywall. With the

safety cable lowered, 3 feet of open space were left unprotected. On their first run,

plaintiff’s coworker stepped from the scissor lift onto the mezzanine holding one

end of a sheet of drywall. Plaintiff came behind him. When plaintiff stepped onto

the mezzanine, he lost his balance. The drywall that he was holding broke, and he

fell through the unprotected space to the level below.

There should be no dispute that the mezzanine was dangerously high, given

that as it was 12 to 17 feet above the lower level. Because it was more than 6 feet

high, fall protection was required for the workers’ safety. The lower courts

correctly noted that workers from several trades had to work at the mezzanine level

(…continued)

In the picture submitted by plaintiff, the scissor lift appears on the floor to the left

of the mezzanine.

7

at the same time. Hence, an issue of fact was created concerning whether the

mezzanine was a common area. Various subcontractors needed to get onto the

mezzanine numerous times over several days in order to work and load materials

and equipment. By a rough estimate, a dozen workers, including carpenters,

electricians, plumbers, painters, and at least four people to load heating, ventilation,

and cooling equipment needed to get onto the mezzanine. After the wooden frame

for the drywall was put in, there were only two ways to reach the mezzanine: by

ladder and by scissor lift. All these workers faced the danger of falling from the

mezzanine while loading materials or equipment. Accordingly, an issue of fact

arose about whether a significant number of workers employed by various

subcontractors were exposed to the same risk.

There is no dispute that the safety cable did not provide sufficient protection,

given that it had to be lowered to enable access to the mezzanine. One of the

questions that plaintiff raised is whether any other type of perimeter protection was

feasible. In response to defendant’s “Safety Hazard Notification,” plaintiff’s

employer indicated that a wood-framed structure with a removal gate should have

been used. The structure could have protected people from falling through the

open space left after the cable was lowered. It is unclear whether such protection

was feasible. Thus, the Court of Appeals correctly decided that a question of fact

existed about the availability of adequate perimeter protection.

Defendant argues that the only feasible safety protection was the use of a

personal fall-protection device, such as a double-lanyard harness system hooking

8

the worker to an anchorage point. It is undisputed that plaintiff was not wearing

such a device. Plaintiff’s supervisor expressed doubt about a lanyard, saying that,

if plaintiff had worn one, he could not have stepped off the scissor lift onto the

mezzanine.

Assuming that a personal fall-protection device could have been used, the

question arises whether defendant took reasonable steps within its supervisory

authority to require such a device. The project-manual provisions for defendant’s

“On-Site Project Safety and Loss Control Program” state that each subcontractor

“will supply the proper equipment, take the necessary precautions to maintain the

equipment according to current regulations and specifications, and accept

responsibility to ensure that the necessary safety equipment is supplied and used

when required.” The manual further states: “The use of safety belts/harnesses and

lanyards securely attached to an approved anchorage point when working from

unprotected high places is mandatory.” Defendant’s manual makes clear that

defendant required that personal fall protection be used when no other protection

was available. It shifted to the subcontractors the responsibility for providing all

such safety equipment and ensuring its use.

In Funk, the Court observed that, from an economic and practical

standpoint, placing the responsibility for work safety in common areas on the

general contractor will “render it more likely that the various subcontractors . . .

will implement or that the general contractor will himself implement the necessary

9

precautions and provide the necessary safety equipment in those areas.”14 It is

doubtful that, under Funk, a general contractor can entirely absolve itself of

liability by shifting to its subcontractors all responsibility for implementing

workplace safety and for providing safety equipment.

Furthermore, a question of fact exists concerning whether, under his

supervisory authority, defendant’s construction supervisor should have been

expected to enforce defendant’s safety policy. The construction supervisor knew

that plaintiff and his coworker planned to use the scissor lift to hoist drywall onto

the mezzanine. He also knew that they needed to lower the safety cable to do so.

The question is whether the construction supervisor should have inquired about the

safety protection that the carpenters planned to use when the safety cable was

down.

Defendant argues that its supervisor had no authority to tell the workers how

to do their jobs. That is not the issue. Rather, the issue is whether the construction

supervisor had authority to supervise the workers’ safety and to enforce the general

contractor’s safety policy.

Defendant also argues that a general contractor cannot be expected to

monitor whether each worker on the jobsite wears individual safety protection.

Were such monitoring at issue, defendant might be correct because of the burden it

would place on the general contractor. But, on the facts of this case, defendant’s

14
Funk, 392 Mich at 104.

10

construction supervisor was in direct personal contact with plaintiff and his

coworker. He spoke with them personally as they prepared to ascend to the

mezzanine. It might not be unreasonable to expect the supervisor to inquire after

their safety under the circumstances.

More importantly, such an expectation is hardly unreasonable in light of

defendant’s safety policy. Its safety-and-loss-control program makes a difference

only if it is enforced. Certainly, a safety policy can be enforced by issuing a

citation to a subcontractor after an injury occurs, which is what defendant did here.

But it is reasonable to expect that a general contractor will enforce its own policy to

prevent noncompliance and to avoid injury before it occurs.

III

I would affirm the lower courts’ judgments denying defendant’s motion for

summary disposition and would remand the case to the trial court for further

proceedings. This resolution of the case would not be tantamount to imposing

strict liability on the general contractor. On the contrary, it acknowledges that

reasonable minds can differ about the sufficiency of the steps the general contractor

took in this case. Certainly, a jury could find that the general contractor took

reasonable steps, but I would not make that determination as a matter of law. It is

properly an issue for the trier of fact to resolve.

Marilyn Kelly
Michael F. Cavanagh

11