PER CURIAM

UNPUBLISHED

Oakland Circuit Court, LC No. 2017-160326-NO

Before: Stephens, P.J., and Sawyer and Servitto, JJ.

PER CURIAM

Plaintiff, Aaron Batchelder, appeals by right a judgment of no cause of action, entered following a jury trial, in favor of defendant Cindav Construction, Inc. ("CCI"). We affirm.

I. FACTUAL BACKGROUND

This case arises out of injuries plaintiff allegedly sustained in July 2015 when he slipped and fell while descending a stairway after performing plumbing work at a new-construction home. On the date of the accident, plaintiff was employed by a plumbing subcontractor, which had been hired to perform work at the new-construction house owned by general contractor Elkow Homes. Other subcontractors worked at the property, including CCI, who was responsible for the finished carpentry work. Plaintiff tripped and fell on carpentry debris while descending the basement staircase, which, at the time, had no handrail. Plaintiff injured his shoulder and required several surgical procedures to repair it.

Plaintiff subsequently initiated this action, alleging several claims against CCI, which he captioned as claims for premises liability, respondeat superior, negligent supervision and training, and vicarious liability. After CCI filed a motion for summary disposition, which the trial court denied, it sought leave to appeal in this Court on an interlocutory basis. This Court denied CCIs application "for failure to persuade the Court of the need for immediate appellate review." Batchelder v. Echelon Homes, unpublished order of the Court of Appeals, entered October 24, 2019 (Docket No. 350664) (Batchelder I).

Before this case proceeded to trial, the parties filed a joint pretrial order, which summarized both the disputed and undisputed points of fact and law. The parties informed the trial court that they would file supplemental briefs before trial concerning the disputed legal issues, including, as relevant here, (1) whether plaintiffs claims regarding CCIs failure to install a handrail on the property's basement staircase sounded exclusively in premises liability, not also in ordinary negligence; (2) whether CCI could, as a subcontractor, be held liable under the "common work area" doctrine; (3) whether CCI owed plaintiff a statutory legal duty, for purposes of negligence, under MIOSHA; and (4) if so, whether evidence of MIOSHA violations would be admissible at trial and whether the jury would be instructed with M Civ JI 12.05 ("Violation by Defendant of Rules or Regulations Promulgated Pursuant to Statutory Authority"). After the briefs were filed, the trial court ruled that: plaintiffs claims against CCI sounded exclusively in premises liability; CCI could not be held liable under the "common work area" doctrine, and; while neither OSHAnor MIOSHA regulations impose legal duties on defendants for purposes of negligence, evidence of alleged OSHA or MIOSHA violations would be admissible at trial and that plaintiff was entitled to M Civ JI 12.05. However, the trial court also invited CCIs trial counsel to submit further briefing on the OSHA/MIOSHA issue if he could identify any binding caselaw contrary to the trial court's ruling. CCI subsequently did so, filing a motion for reconsideration under MCR 2.119(F)(3), which the trial court granted.

Thereafter, this case proceeded to a jury trial. Due to the court's pre-trial rulings, the jury received only a special-verdict form, which focused on CCIs potential liability under a premises-liability theory and CCIs various defenses, including contributory negligence and nonparty fault. The jury found that CCI was not "the possessor" of the subject property on the date of plaintiff s accident. Consistent with that verdict, the trial court subsequently entered the no-cause judgment that plaintiff appeals here.

II. ANALYSIS

A. NATURE OF PLAINTIFF'S CLAIMS

Plaintiff first argues on appeal that the trial court erred by holding that his claims regarding CCI 's failure to install a handrail on the property's basement staircase sounded exclusively in premises liability, not also in ordinary negligence. We disagree.

"Whether one party owes a duty to another is a question of law reviewed de novo," Brown v. Brown, 478 Mich. 545, 552; 739 N.W.2d 313 (2007), as is the question of whether a claim sounds in ordinary negligence, Estate of Swanzy v. Kryshak, ___Mich App___, ___;___N.W.2d___ (2021) (Docket No. 351649); slip op at 3, lv pending. The "traditional elements of a negligence action" are "(1) duty, (2) breach, (3) causation, and (4) damages[.]" Hannay v. Dep't of Transp, 497 Mich. 45, 63; 860 N.W.2d 67 (2014) (quotation marks and citation omitted). To prevail on a claim in the context of premises liability, a plaintiff must satisfy those same essential elements. See, e.g., Mouzon v. Achievable Visions, 308 Mich.App. 415, 418; 864 N.W.2d 606 (2014). In the absence of any material factual disputes, it is a question of law for the court to decide whether a legal duty exists. Braun v. York Props, Inc, 230 Mich.App. 138, 141; 583 N.W.2d 503 (1998) ("Generally, the existence of a duty is a question of law for the court to decide, but where certain factual circumstances give rise to a duty, and there are disputed facts, a jury must determine whether those factual circumstances exist.").

In support of his instant argument, plaintiff relies heavily on Johnson v. A & M Custom Built Homes of West Bloomfield, LPC, 261 Mich.App. 719, 722-723; 683 N.W.2d 229 (2004). In Johnson, 261 Mich.App. at 720, the plaintiff employee of a subcontractor "was permanently incapacitated after falling from a roof on a construction job" when "a toe board installed by another subcontractor, Olewnick, dislodged and failed to stop" the plaintiff. Recognizing that the plaintiffs claim against Olewnick regarded alleged negligence in installing the toe board—not negligence in failing to install one—this Court held that the plaintiffs claim sounded in "active" negligence. Id. at 722-723. Thus, this Court held that the claim was actionable under an ordinary negligence theory, reasoning as follows:

Even if [Olewnick] had no direct duty to take proactive measures to make an otherwise unsafe work place safe, and therefore no duty to install toe boards to prevent [the plaintiff] from falling, [Olewnick's] common-law duty remained intact: "[a]s between two independent contractors who work on the same premises, either at the same time or one following the other, each owes to the employees of the other the same duty of exercising ordinary care as they owe to the public generally." 65A CJS § 534 p. 291. Thus, where a subcontractor actually performs an act, it has the duty to perform the act in a nonnegligent manner. [Johnson, 261 Mich.App. at 723 (footnote omitted; first three alterations added).]

In contrast, plaintiffs instant argument regards CCI's alleged failure to install a handrail. In other words, it involves "passive" negligence which legally distinguishable from the "active" negligence addressed in Johnson.

This state's jurisprudence recognizes a distinction between "passive" and "active" forms of negligence. See Chelik v. Capitol Transp, LLC, 313 Mich.App. 83, 91; 880 N.W.2d 350 (2015). The passive form, "nonfeasance, . . . is passive inaction or the failure to actively protect others from harm," while the active form, "misfeasance, . . . is active misconduct causing personal injury." Id. "The common law has been slow in recognizing liability for nonfeasance because the courts are reluctant to force persons to help one another and because such conduct does not create a new risk of harm to a potential plaintiff." Williams v. Cunningham Drug Stores, Inc, 429 Mich. 495, 498; 418 N.W.2d 381 (1988). "Thus, as a general rule, there is no duty that obligates one person to aid or protect another." Id. at 498-499.

An exception to that general rule is recognized when a "special relationship" between the parties justifies imposing a duty on the defendant to act. Id. at 499. "The rationale behind imposing a duty to protect in these special relationships is based on control. In each situation one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself." Id. "The duty to protect is imposed upon the person in control because he is best able to provide a place of safety." Id. Because claims sounding in premises liability regard nonfeasance—i.e., the failure of a premises possessor to take the necessary steps "to keep the premises within [its] control reasonably safe," Bailey v. Schaaf 494 Mich. 595, 604-605; 835 N.W.2d 413 (2013)—such claims rely on the "special relationship" between premises possessors and those present on their land, see, e.g., id.; Williams, 429 Mich. at 499-500.

Given that plaintiffs claim against CCI concerned nonfeasance with regard to dangerous conditions on the land, we cannot conclude that the trial court erred by holding that the claim sounded exclusively in premises liability. "Courts are not bound by the labels that parties attach to their claims. Indeed, it is well settled that the gravamen of an action is determined by reading the complaint as a whole, and by looking beyond mere procedural labels to determine the exact nature of the claim." Buhalis v. Trinity Continuing Care Servs, 296 Mich.App. 685, 691-692; 822 N.W.2d 254 (2012) (quotation marks, citations, and brackets omitted). "Michigan law distinguishes between claims arising from ordinary negligence and claims premised on a condition of the land. In the latter case, liability arises solely from the defendant's duty as an owner, possessor, or occupier of land." Id. at 692 (citations omitted; emphasis added). "If the plaintiffs injury arose from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence[.]" Id.

In this instance, plaintiff alleged that he was injured as a result of several dangerous conditions: the lack of a handrail, inadequate lighting, and a piece of wood trim left on the stairs.Because each is a dangerous condition that was present on the land (i.e., within the subject property), this action sounds in premises liability, not ordinary negligence. See, e.g., Kachudas v. Invaders Self Auto Wash, Inc, 486 Mich. 913, 914; 781 N.W.2d 806 (2010) ("the plaintiff in this case is alleging injury by a condition of the land, and as such, his claim sounds exclusively in premises liability"); Pugno v. Blue Harvest Farms, LLC, 326 Mich.App. 1, 14; 930 N.W.2d 393 (2018) (holding that the plaintiffs claim, which was captioned as a claim for ordinary negligence, actually sounded in "premises liability only" because all of the allegations of negligence regarded a dangerous condition on the land—a "stack of pallets"—that had allegedly caused the plaintiffs injuries); Buhalis, 296 Mich.App. at 691-692. Thus, the trial court did not err by holding, as a matter of law, that this action sounded exclusively in premises liability, not also in ordinary negligence.

B. "COMMON WORK AREA" DOCTRINE

Plaintiff next argues that the trial court erred by holding that CCI could not be held liable to plaintiff under the "common work area" doctrine. We disagree.

The "common work area" doctrine is a common-law doctrine, see Ormsby v. Capital Welding, Inc, 471 Mich. 45, 48; 684 N.W.2d 320 (2004), and "[t]he applicability of a legal doctrine is a question of law" that this Court reviews de novo, James v. Alberts, 464 Mich. 12, 14; 626 N.W.2d 158 (2001). "At common law, property owners and general contractors generally could not be held liable for the negligence of independent subcontractors and their employees." Ormsby, 471 Mich. at 48. However, in Funk v. Gen Motors Corp, 392 Mich. 91; 220 N.W.2d 641 (1974), overruled in part on other grounds by Hardy v. Monsanto Enviro-Chem Sys, Inc, 414 Mich. 29 (1982), our Supreme 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' and, further, that a property owner could be held equally liable under the 'retained control doctrine.'" Ormsby, 471 Mich. at 48 (emphasis added). There are four essential elements for a claim under the "common work area" doctrine: "(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." Latham v. Barton Malow Co, 480 Mich. 105, 109; 746 N.W.2d 868 (2008).

Although plaintiff candidly admits that CCI was a subcontractor—not the general contractor or the owner of the subject property—plaintiff nevertheless argues that the trial court erred by concluding that CCI could not be held liable to plaintiff under the "common work area" doctrine, at least under the facts presented here. We reject that argument as contrary to several binding decisions of both this Court and our Supreme Court. See Ghaffari v. Turner Constr Co, 473 Mich. 16, 31 n 7; 699 N.W.2d 687 (2005) (Ghaffari II) ("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)") (emphasis added); Ormsby, 471 Mich. at 58 & n 10 ("Funk is simply inapplicable to Capital in this case because Capital was neither the property owner nor the general contractor."); Funk, 392 Mich. at 104 n 6 (holding that the "common work area" doctrine is not applicable "where the employee of a subcontractor seeks to recover from another subcontractor"); Hughes v. PMG Bldg, Inc, 227 Mich.App. 1, 12; 574 N.W.2d 691 (1997) ("The 'common work area' exception . . . does not apply where the employee of one subcontractor seeks to recover from another subcontractor."). In light of such authority, the trial court correctly held that CCI's status as a subcontractor rendered the "common work area" doctrine inapplicable to it.

C. OSHA AND MIOSHA

Plaintiff lastly argues that the trial court erred by concluding that CCI did not owe a duty to plaintiff under either MIOSHA or OSHA. Plaintiff further argues that the trial court's purported error in that regard led it to abuse its discretion by excluding any evidence at trial concerning OSHA and MIOSHA and by refusing to instruct the jury with M Civ JI 12.05. We perceive no error in those respects.

A trial court's legal conclusion whether a duty is owed for purposes of a negligence claim is reviewed de novo. Zaremba Equip, Inc v. Harco Nat'l Ins Co, 280 Mich.App. 16, 26; 761 N.W.2d 151 (2008). Likewise, in the instant context, "[w]e review claims of instructional error de novo." Case v. Consumers Power Co, 463 Mich. 1, 6; 615 N.W.2d 17 (2000). On the other hand, "[a] trial court's decision whether to admit evidence is reviewed for an abuse of discretion, but preliminary legal determinations of admissibility are reviewed de novo[.]" Albro v. Drayer, 303 Mich.App. 758, 760; 846 N.W.2d 70 (2014). "An abuse of discretion occurs when the court's decision results in an outcome that falls outside the range of principled outcomes," Epps v. 4 Quarters Restoration LLC, 498 Mich. 518, 528; 872 N.W.2d 412 (2015), or is founded upon legal error, Ronnisch Constr Group, Inc v. Lofts on the Nine, LLC, 499 Mich. 544, 552; 886 N.W.2d 113 (2016).

As this Court explained in Kennedy v. Great Atlantic & Pacific Tea Co, 274 Mich.App. 710, 721; 737 N.W.2d 179 (2007):

In Michigan, the violation of a statute creates a rebuttable presumption of negligence, and the violation of an administrative regulation constitutes evidence

of negligence. However, MIOSHA and the regulations enacted under MIOSHA apply only to the relationship between employers and employees and therefore do not create duties that run in favor of third parties. Accordingly, MIOSHA does not impose a statutory duty in favor of third parties in the negligence context. Nor do administrative regulations enacted under MIOSHA impose duties in favor of third parties in the negligence context. [Quotation marks and citations omitted.]

In addition, "MIOSHA does not provide an independent tort remedy." Id. at 721 n 2. Hence, a plaintiff in a premises-liability action "may not rely on MIOSHA and the MIOSHA regulations to escape application of the open and obvious danger doctrine[.]" Id. at 721; accord Hottmann v. Hottmann, 226 Mich.App. 171, 177-178; 572 N.W.2d 259 (1997) (noting that, although "MIOSHA does not create new common-law or statutory rights, duties, or liabilities of employers and employees," evidence of MIOSHA violations may be considered as "evidence of comparative negligence"), citing MCL 408.1002(2) ("Nothing in this act [i.e., MIOSHA] shall be construed . . . to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.").

Similarly, in pertinent part, 29 USC 653(b)(4) provides:

Nothing in this chapter [i.e., OSHA] shall be construed . . . to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

Thus, OSHA regulations do not create any new legal duty on behalf of either employees or employers for purposes of a negligence claim, though evidence of OSHA violations may be introduced "as evidence of comparative negligence" on behalf of a plaintiff employee. Zalut v. Andersen & Associates, Inc., 186 Mich.App. 229, 235-236; 463 N.W.2d 236 (1990). Accord Ghaffari v. Turner Constr Co, 259 Mich.App. 608, 613; 676 N.W.2d 259 (2003) (Ghaffari I) ("plaintiffs contention that either MIOSHA or OSHA imposed a statutory duty in a negligence context . . . is plainly without merit"), rev'd and remanded on other grounds 473 Mich. 16 (2005).

In light of such authority, we cannot conclude that the trial court erred by holding, as a matter of law, that CCI did not owe any statutory duty to plaintiff under OSHA or MIOSHA that would support a negligence-related claim, including a claim sounding in premises liability. Moreover, although evidence of OSHA or MIOSHA violations might have been admissible as evidence of comparative negligence committed by plaintiff, see Hottmann, 226 Mich.App. at 177-178, and Zalut, 186 Mich.App. at 235-236, the trial court did not abuse its discretion by excluding any evidence of such violations as proof of CCI's purported negligence, see Hottmann, 226 Mich.App. at 180 ("[T]he trial court did not abuse its discretion in ruling that the MIOSHA regulations are inadmissible . . . . The issue for the trier of fact is whether defendant violated the standard of conduct of a reasonable person, not whether defendant failed to comply with the MIOSHA regulations.") (citation omitted).

Consequently, we also cannot conclude that the trial court erred by holding that plaintiff was unentitled to have the jury instructed with M Civ JI 12.05. Because the trial court properly excluded any evidence of the purported OSHA and MIOSHA violations, it necessarily follows that no admissible evidence could have supported providing M Civ JI 12.05 at trial. See Estate of Goodwin v. Northwest Mich. Fair Ass'n, 325 Mich.App. 129, 163-166; 923 N.W.2d 894 (2018) (holding that a trial court did not err by refusing to provide M Civ JI 12.05 when there was "no evidence" to support a finding that the disputed regulation had actually been violated or that its alleged violation was the proximate cause of the decedent's injuries).

Affirmed.

Cynthia Diane Stephens, David H. Sawyer, Deborah A. Servitto