Opinion
Docket No. 103017.
Decided February 20, 1990.
Leonard D. McMahon, P.C. (by Leonard D. McMahon), and Conway Wright, P.C. (by Daniel J. Wright), of Counsel, for plaintiff.
Kitch, Saurbier, Drutchas, Wagner Kenney, P.C. (by Gregory G. Drutchas and Susan Healy Zitterman), for defendants.
Before: SAWYER, P.J., and WEAVER and NEFF, JJ.
Thomas C. Plummer, Jr., sued Bechtel Construction Company and The Detroit Edison Company for injuries received during a construction accident. A jury found that plaintiff suffered $1,100,000 in damages. However, the jury apportioned fault at twenty-five percent to plaintiff and seventy-five percent to defendants, thus reducing defendants' liability to $825,000. Defendants appeal as of right. We reverse.
Plaintiff was injured in the course of his employment as a pipe fitter with Babcock and Wilcox on the construction of Edison's Belle River Power Plant. Babcock and Wilcox was a subcontractor working under the general contractor, Bechtel Construction Company.
At the time of the accident plaintiff was installing coal pipe forty feet off the floor. Expert testimony at trial established that plaintiff was drunk, with a blood-alcohol level of between 0.213 and 0.23 percent. To free a caught pipe, plaintiff went out onto a platform that had no guardrails. Plaintiff was wearing a safety belt, but when he went onto the platform he did not "tie off" (attach a safety line from his safety belt to a nearby permanent structure), although he had been instructed to do so. At trial, plaintiff testified that there was no place for him to "tie off." Defendants disputed this testimony. Plaintiff fell from the platform, receiving severe injuries.
The trial court denied defendants' motion for directed verdict after the plaintiff's case was presented, finding both defendants owed a duty to plaintiff. On appeal, defendants contend that there was insufficient evidence to establish either that they owed a duty to plaintiff or that such alleged duty was breached. We agree.
DETROIT EDISON
Edison was the property owner in this case. A property owner is generally not liable in negligence to a contractor's employee unless the owner retains control of the work. Funk v General Motors Corp, 392 Mich. 91; 220 N.W.2d 641 (1974). Upon a review of the record and briefs, we find that Edison retained neither partial nor direct control of the actual construction work, which was carried out by Babcock and Wilcox as subcontractor and by Bechtel as general contractor. Testimony adduced at trial established that any control retained by Edison was primarily contractual and that Edison was responsible for general oversight and safety inspections. Such activity did not amount to "control" of the work. Wolfe v The Detroit Edison Co, 156 Mich. App. 626; 402 N.W.2d 16 (1986), lv den 428 Mich. 865 (1987); Miller v Great Lakes Steel Corp, 112 Mich. App. 122; 315 N.W.2d 558 (1982). Accordingly, insufficient evidence existed to show that defendant Edison owed a duty to plaintiff. Funk v General Motors Corp, supra.
BECHTEL CONSTRUCTION
Similarly, insufficient evidence existed to show that defendant Bechtel, as general contractor, owed a duty to plaintiff to guard him against the injury suffered. A general contractor has a duty to assure that reasonable steps are taken within its supervisory and coordinating authority 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 v General Motors Corp, supra. Here, Bechtel did take reasonable steps within its supervisory and coordinating authority to guard against "readily observable, avoidable dangers" by requiring subcontractors to report what they were accomplishing in their safety programs, to have weekly safety meetings, to educate and inform employees regarding safety, and to equip employees to do their jobs safely. Bechtel also took reasonable steps to see that plaintiff was instructed to use his safety belt when necessary. Plaintiff knew that he was required to "tie off" with his safety belt if he was on a scaffold without guardrails.
A hotly disputed issue at trial was whether plaintiff was able to "tie off" on the platform from which he fell. There was no evidence that plaintiff was ordered to work on the unguarded scaffold or that he was expected to complete his assigned tasks without regard to the absence of safety equipment. Nor was there evidence that any of plaintiff's coworkers or supervisors would have refused safety assistance to plaintiff had he asked for it, as he should have done if there was in fact no place to "tie off."
The conclusion is inescapable that it was unobservable or unforeseeable that plaintiff would get drunk and then leave the guard-railed catwalk to work on an unprotected scaffold without requesting safety assistance or tying off as he had been instructed. Accordingly, insufficient evidence existed to show that defendant Bechtel owed a duty to plaintiff. Funk v General Motors Corp, supra.
CONCLUSION
The question of whether plaintiff established that the defendants came within an exclusion from the general rule of nonliability for property owners and general contractors was one of law for the trial judge. Signs v The Detroit Edison Co, 93 Mich. App. 626; 287 N.W.2d 292 (1979). Viewing the evidence in a light most favorable to plaintiff and giving plaintiff the benefit of every reasonable inference to be drawn from the evidence, reasonable persons could not differ in finding that defendants did not owe a duty to prevent plaintiff's injury. Boggerty v Wilson, 160 Mich. App. 514, 522; 408 N.W.2d 809 (1987), lv den 430 Mich. 851 (1988). Taken as a whole, the evidence on this record did not justify submitting plaintiff's case to the trier of fact. People v Clark, 172 Mich. App. 1, 6; 432 N.W.2d 173 (1988), lv den 432 Mich. 896 (1989).
Because our analysis of this issue is dispositive, we do not address defendants' remaining issues on appeal.
Reversed.