Michael v. Allegheny Design Management, Inc.

Filing 26

OPINION AND ORDER granting 16 Motion for Summary Judgment. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT MICHAEL,
Plaintiff,
Civil Case No. 13-10760
Honorable Patrick J. Duggan

v.
ALLEGHENY DESIGN MANAGEMENT, INC.,
Defendant.
______________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
This is a negligence action removed from Michigan state court based on
diversity jurisdiction on February 22, 2013. Plaintiff Robert Michael (“Plaintiff”)
alleges in his First Amended Complaint that Defendant Allegheny Design
Management, Inc. (“Allegheny”) is liable for the injuries Plaintiff suffered on
September 17, 2011, when he fell from a scissor lift from which a safety bar had
been removed. In his First Amended Complaint, Plaintiff alleges two counts
against Allegheny: (I) “active negligence” and (2) “common work area.” (ECF
No. 1-2.) Presently before the Court is Allegheny’s motion for summary
judgment, filed pursuant to Federal Rule of Civil Procedure 56 on October 14,
2013. (ECF No. 16.) The motion has been fully briefed and this Court held a
motion hearing on January 30, 2014. For the reasons that follow, the Court grants

Allegheny’s motion.
Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is
appropriate “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. P.
56(a). The central inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52, 106 S. Ct. 2505, 2512 (1986). After adequate time for discovery and
upon motion, Rule 56 mandates summary judgment against a party who fails to
establish the existence of an element essential to that party’s case and on which
that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548, 2552 (1986).
The movant has the initial burden of showing “the absence of a genuine
issue of material fact.” Id. at 323, 106 S. Ct. at 2553. Once the movant meets this
burden, the “nonmoving party must come forward with specific facts showing that
there is a genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986) (internal quotation marks
and citation omitted). To demonstrate a genuine issue, the nonmoving party must
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present sufficient evidence upon which a jury could reasonably find for that party;
a “scintilla of evidence” is insufficient. See Liberty Lobby, 477 U.S. at 252, 106 S.
Ct. at 2512.
“A party asserting that a fact cannot be or is genuinely disputed” must
designate specifically the materials in the record supporting the assertion,
“including depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant’s evidence
and draw “all justifiable inferences” in the non-movant’s favor. See Liberty Lobby,
477 U.S. at 255, 106 S. Ct. at 2513.
Factual Background
When Plaintiff fell from the scissor lift on September 17, 2011, he was
employed as a finish-carpenter for DH Construction Company. Allegheny had
contracted with DH Construction to perform work on a project at a Finish Line
store in the Fairlane Mall in Dearborn, Michigan. Allegheny was the general
contractor on the project. The scope of Allegheny’s subcontract with DH
Construction included the latter’s framing and installing metal studs and drywall in
the retail space.
Larry Walko was Allegheny’s superintendent at the project site. In that
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capacity, Walko was responsible for hiring subcontractors based on a list provided
by Allegheny, preparing Allegheny’s contracts with the subcontractors and
overseeing their execution, scheduling the contractors, and being present at the job
site. (ECF No. 16 Ex. C at 7-8.) On Allegheny’s behalf, Walko had hired several
subcontractors in addition to DH Construction to perform work at the site,
including an electrical company and a sprinkler-fitter company. Walko testified
that there were no more than five to seven people working on the site on the busiest
of days. (Id. at 48.)
The subcontractors working on the Finish Line store used three scissor lifts
at the site: two which had been rented by DH Construction and one which was
owned or rented by the sprinkler-fitter company. (ECF No. 18 Ex. A at 53-54.)
The design of the scissor lift provided by the sprinkler-fitter company prevented
the safety bars in the “bucket” (i.e. where the worker stands) from being removed.
(Id. at 65.) The other two scissor lifts were identical and the design enabled the
removal of at least one safety bar. (Id. at 67-68.) In fact Plaintiff saw a safety bar
from one of the scissor lifts laying around the job site on two of his first three days
working there. (Id. at 66-68.)
Plaintiff, however, had not worked on a scissor lift missing a safety bar
during those first three days. (Id.) It was the common practice at the job site for
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the employees of the various subcontractors to use the scissor lift at the location
where the employees were working; rather than moving the scissor lifts around the
site. (Id. at 53-55.) In other words, a worker would use the scissor lift located in
one the section of the retail space while doing his construction job at that location,
and then move to the scissor lift located closest to the next area where his work
was to be done. (See id. at 53-55.)
On his fourth day working at the job site, September 17, 2011, Plaintiff
began doing drywall finishing work while using the sprinkler-fitter company’s
scissor lift. Another drywall finisher, Anthony Poma, worked on a section of
drywall adjacent to Plaintiff, using one of the scissor lifts provided by DH
Construction. Poma was sick that day, and left the job site soon after arriving.
Shortly thereafter, Plaintiff stepped onto the scissor lift that Poma had been using
in order to complete the work on the drywall that Poma had started. This was the
scissor lift missing a safety bar. Nevertheless, Plaintiff did not realize the bar was
missing when he began using the lift. (Id. at 67, 83-84.) After entering the scissor
lift, Plaintiff elevated the bucket to about twelve feet off the ground and
subsequently fell. As a result of the fall, Plaintiff broke his arm in three areas.
Plaintiff was the only person using the scissor lift when he fell. (Id. at 70.)

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Allegheny’s Arguments and Analysis
Allegheny premises its motion on the common law principle that property
owners and general contractors generally are not liable for the negligence of
independent subcontractors and their employees. See, e.g., Ghaffari v. Turner
Constr. Co., 473 Mich. 16, 20, 699 N.W.2d 687, 689-90 (2005). In Funk v.
General Motors Corp., 392 Mich. 91, 104, 220 N.W.2d 641, 646 (1974), the
Michigan Supreme Court established one exception to this rule: the “common
work area doctrine.” This doctrine allows for recovery against a general contractor
if the plaintiff shows the following:
(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.
Ormsby v. Capital Welding, Inc., 471 Mich. 45, 54, 684 N.W.2d 320, 326-26
(2004). The plaintiff must demonstrate all four elements for the doctrine to apply.
Id. at 59, 684 N.W.2d at 328. Here, Allegheny argues that all of the elements
cannot be established and that summary judgment therefore is warranted.1

1

As stated, the common work area doctrine is an exception to the general
rule that precludes liability of a general contractor for the negligence of
independent contractors and their employees. In his First Amended Complaint,
however, Plaintiff asserts an “active negligence” claim in addition to his “common
(continued...)

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Specifically, Allegheny contends that it was not exercising supervisory
authority or control over the drywall work completed by Plaintiff. Allegheny
further argues that the absence of the safety rail from the scissor lift was not readily
observable to those not using the lift; and that the one other worker who used the
lift that day, although noticing that the bar was missing, did not view it as a safety
risk. Moreover, Allegheny contends that a significant number of workmen were
not exposed to the danger of falling from the scissor lift missing a safety rail.
Lastly, Allegheny maintains that the incident did not occur in a “common work
area” because Plaintiff was the only worker using the lift at the time of the
accident.
Allegheny argues that the first element necessary to invoke the common
work area exception is not satisfied because the undisputed facts establish that “DH

1

(...continued)

work area” claim. (See First Am. Compl. ¶ 13.) Yet Plaintiff’s claim of “direct
negligence” by Allegheny relates only to its superintendent’s alleged failure to
keep the job site safe. There is no evidence that Walko removed the safety bar
from the scissor lift and the evidence is that he was unaware that the safety bar was
missing prior to Plaintiff’s fall. The Court is aware of Walko’s testimony
concerning picking up debris from the site and what he would do if he saw a
worker working in an unsafe manner or under unsafe conditions. Nevertheless, the
Court finds that Plaintiff fails to establish that Allegheny was contractually
obligated or assumed the duty to keep the job site safe. Under Michigan law, that
duty otherwise would only arise where the four elements of the common work area
doctrine are satisfied.
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Construction employees . . . were not receiving supervision or direction from
Allegheny Design Management with respect to performing the drywall work being
completed at the site at issue.” (ECF No. 15 at Pg ID 90.) The evidence instead
shows that Dan Ezzo, a DH Construction employee, supervised DH Construction
employees, such as Plaintiff, at the job site. (Id. Ex. A at 36-38 (describing Ezzo
as the “carpenter foreman”).) Allegheny contends that there is no evidence
establishing that its personnel knew or reasonably should have known that Plaintiff
or any other worker was improperly operating a scissor lift without the safety
guard rail before the accident at issue.
None of the cases cited by the parties focus on this first element of the
common work area doctrine. The Court is not convinced, however, that it
necessarily requires the kind of supervision that Allegheny argues it was not
performing at the job site. As the Supreme Court of Michigan has advised, the
fundamental question is “[w]hat was the danger creating a high degree of risk that
is the focus of the general contractor’s responsibility?” Latham v. Barton Marlow
Co., 480 Mich. 105, 113, 746 N.W.2d 868, 873 (2008). In the present case, it was
the risk of a fall at elevated heights from a scissor lift missing a safety bar.
Nevertheless, Allegheny did not supply the lift in question for its
subcontractors to use at the job site. Further, there is no evidence that Walko
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supervised or controlled the use of the scissor lifts by the subcontractors’
employees. The Court therefore concludes that Plaintiff has not proven this first
element of the common work area doctrine. All four elements are required to
render the doctrine applicable.
Accordingly,
IT IS ORDERED, that Defendant’s motion for summary judgment is
GRANTED.
Dated: February 7, 2014

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Edward M. Turfe, Esq.
Kassem M. Dakhlallah, Esq.
John Mitchell, Esq.

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