TOV Injury and Safety Blog

Federal Court rejects claim that expert testimony is too speculative

V & M Star Steel sued Centimark Corporation, claiming that it suffered more than three million dollars in property damage when roofing contractors negligently left bundled steel on V & M's roof during repairs.  The Plaintiff argued that when roofers encountered  a rain storm, they left supplies in a haphazard and unsafe condition, and bundled steel slid down the roof, destroying structures on the ground below.

Painter loses common work area injury claim

James Shawl suffered injury to his back when a large electrical box  with protruding screws fell and struck him while he was working as a subcontractor painting the entrance to the Saginaw County Event Center.  The General Contractor on the project was Spence Brothers construction company.  Shawl sued Spence Brothers, arguing that it negligently fulfilled its duty to protect employees working in the common area from construction hazards.

The Court of Appeals upheld the dismissal of Shawl's claim.  It ruled that the electrical box did not pose a substantial risk of severe harm and that a significant number of workers were not endangered by the box.  Therefore, the risk it posed did not create a "common work area" duty on the part of Spence Brothers to protect the employees of subcontractors.

Workman injured on Community College sidewalk cannot pursue claim

Brian Little was employed by a sub-contractor working inside a building on the campus of Macomb Community College.  He and a co-worker were making several trips inside the building, carrying equipment used in the renovation, when he fractured an ankle in a fall on ice.  He made a claim against the general contractor and the College, arguing that they were responsible for eliminating hazards on the sidewalk.

Underage press operator cannot sue owner of unguarded press

Joshua Sparks sued Century Tool & Die and several other defendants after severely injuring both hands operating an unguarded press.  The Court of Appeals ruled that the lower court erred in deciding the factual issue of who owned the press, but still upheld the dismissal of the claim against Century.  It ruled that the owner of a press owes no duty to assure that it is properly guarded once it is provided to other parties to operate.  Of course, the underaged employee cannot recover damages from his employer, either, because he is limited to workers' compensation benefits.  And, most likely, since he retains some residual earning capacity and worked for a low wage, he will get nothing in the way of wage loss if the Republicans are successful with "worker's compensation reform."

Woman loses claim arising out of fall from ladder

Deborah Adamczyk suffered a severe head injury when she fell from a ladder provided by K-Mart to employees of Adamczyk's employer, Footstar Corporation.  Adamczyk sued K-Mart, alleging that the ladder was defective because the rubber footings under three of its legs were missing.  She relied on a previous employee's testimony to confirm that the ladder had been in a defective condition for several years and that K-Mart was aware of the hazard it represented.

Court of Appeals sends worker's fall claim back to Oakland County for trial

George Frommert fell twenty feet from a defective scaffold after stepping from a bucket truck to the scaffold to gather construction debris. The scaffold had been moved to its current location by a sub-contractor, Teera Construction Company, and left in an unstable condition without warnings.  Frommert sued Teera for common law negligence.  The trial court and two judges of the Court of Appeals agreed that Teera was entitled to summary disposition, relying on a mistaken interpretation of the Fultz "contractual immunity" holding by the Engler Majority of Michigan's Supreme Court.  Frommert appealed to the Michigan Supreme Court.

Injured oil derrick worker's family cannot sue owner of well

Franklin D. Davis, Jr., suffered very severe injuries when he fell a little over 20 feet after a cable snapped.  He died some time later and his family brought a legal action against the owner of the well, KCS Resources, Inc.  His family's attorneys argued that KCS was negligent in supervising the activities at the well-drilling site and in failing to maintain a safe "common work area."  The Court of Appeals affirmed a decision by the trial court dismissing the claim.  It noted that the owner of the well had sub-contracted the work to Davis's employer and that no other sub-contractors worked on the derrick.  Therefore it was not a "common work area."  Since the owner was no longer in possession of the site, the activity was not "ultrahazardous" and the derrick wasn't a common work area, the owner owed no duty to Davis with regard to safety.

Court dismisses nurse's claim against elevator service company

Nurse Laura Wulff sued the Otis Elevator Company after falling while exiting an elevator at Henry Ford's Maplegrove Medical Center.  Otis had been called in on January 28, 2009 to service an elevator that was not levelling with the floor.  The repairman claimed the elevator was in good order when he left.   The next day, Wulff encountered a six-inch gap while walking out of the elevator, tripped and suffered injuries.  She sued Otis for negligence.

Judge improperly dismisses injury case for lack of scientific evidence

Robert Avery worked as a laborer and welder for Grand Trunk Western Railroad for 28 years before he died as a result of a brain tumor.  Under the Federal Employer's Liability Act (FELA) governing railroad employees, Avery could hold the employer responsible for injuries suffered at work, even if proof of the  "proximate cause" of the injury and damage did not rise to the normal legal threshold.  Avery's widow argued that he suffered the brain tumor and died as a result of various chemical exposures he suffered at work.  The Railroad denied any basis for proving causation, refused to provide discovery to the widow and ultimately persuaded the trial judge to dismiss the widow's claim.

Court of Appeals holds that Circuit Court has jurisdiction to decide "exclusive remedy"

William H. Schmitt was badly hurt when a driver for Jaguar/Land Rover of Lakeside caused a collision  with another vehicle:  Schmitt was a passenger in the dealership's vehicle.  Schmitt delivered cars for Jaguar/Land Rover as an "independent contractor"/porter, however, after he was hurt, Jaguar/Land Rover argued Schmitt could not sue it or the driver because Schmitt was an "employee" and subject to the exclusive remedy of workers compensation. 

The Court of Appeals noted that while Republican judicial activists on the Supreme Court had recently criticized a 1984 ruling that acknowledged the Circuit Court's jurisdiction to decide "employee" status, the Justices had not actually over-turned the thiry-year-old decision in a majority opinion.  Therefore, the opinion remained good law and the Circuit Court has the authority to hear the facts and decide whether the dealership should enjoy the protections of an "employer" when it attempted to structure the relationship as one of principal-agent/independent contractor.

Sears may have to pay for its "independent" installer's negligence

Marcy, Patricia and Christopher Hill sued Sears, Roebuck and others alleging negligence.  They had purchased a new home and bought a new, electric dryer from Sears.  They did not realize, however, that the previous owners of the home had removed a GAS dryer and failed to disconnect or "cap" the gas line.  The Sears installer brought in the electric dryer, did not address the uncapped gas line and in fact located the new dryer in a manner that obscured the uncapped line.

Court of Appeals anticipated Supreme Court's retreat on "contract immunity."

Two judges of the Court of Appeals formulated an opinion this month in Price v. City of Royal Oak that anticipated the Michigan Supreme Court's retreat from an activist interpretation of  "contract immunity."    Just last week six Justices of the Supreme Court agreed that simply signing a contract does not confer immunity on the contracting parties from a common law duty of reasonable care to third-parties.  The Court of Appeals majority in Price apparently anticipated this development when they overturned summary disposition for a sidewalk construction contractor.

Electric utility not responsible for dropping wire that draped over road, striking motorcyclists

Steven Shievely and his wife Carol were biking on Springbrook Road in Jackson County when they struck a nearly-downed electrical power line operated by Consumers Power.  The line had drooped to within three feet of the ground after a tree limb struck a cross-arm on the utility pole, fracturing the cross-arm and causing the line to hang slackly over the road.

The trial court dismissed the motorcyclists' case because they had not hired an adequate expert witness to testify that Consumers' maintenance practices were adequate.  The expert they did hire was a former Consumers Power Company employee who testified that the Company's safety practices were unreasonable and not in conformity with the National Electric Safety Code.  The Court ruled, however, that he did not have enough hand's-on experience with forestry practices, utility line maintenance or the maintenance standards used by other Michigan utilities to quailify him to explain to the jury what Consumers did wrong.

Court attempts to eliminate confusion over "contract immunity"

In a rare step back from judicial activism, the Republican majority of Michigan's Supreme Court retreated from the suggestion that signing a contract confers immunity on the signers from any duty to act with reasonable care toward third parties.  Lower court judges and defense attorneys had interpreted the language of the Court's 2004 Fultz v. Union-Commerce decision as doing exactly that:  granting immunity to the parties to a contract if they caused harm to a third-party.  This week, in Loweke v. Ann Arbor Ceiling, six of the seven Justices joined an opinion that rejected such a broad interpretation of Fultz.  While the Loweke holding still suggests some ambiguity, it thoroughly repudiates the suggestion that simply signing a contract with someone relieves the signer's duty to exercise reasonable care for other persons.  Some of the Justices continue to suggest, however, that the duties created within the contract won't form the basis for a suit by an injured stranger to the contract--even if the duties are performed negligently.  The victim must identify a duty of care existing outside the terms of the contract.

Injured employee cannot sue general contractor who pays comp benefits for uninsured subcontractor-employer

 Manual  Martinez-Alvarado was injured while roofing a project run by J.D. Pollard, Inc., as the General Contractor.  Pollard had hired a series of sub-contractor roofers who did not carry workers compensation coverage;  as a result, as the "principal" of an uninsured injured worker, it was obligated to substitute in for the employer to pay Martinez-Alvarado's workers compensation benefits.  In the workers compensation claims process, the worker and Pollard stipulated that Pollard had become Martinez-Alvarado's statutory "employer."

Home-made scaffolding erected 15 minutes earlier is not a common work area

The sub-contractor employer who employed Wayne Goodfallow on a job site run by  Glennwood Custom Builders built a home-made scaffolding to install 3 windows on the second floor. Within 15 minutes, it collapsed, causing Goodfallow to fall 15 feet and suffer permanent injuries.  Only Goodfallow and one co-worker were on the scaffolding and no other subcontractor's workers would have used the scaffolding, as there were manufactured scaffolding elements present at the site.  On this basis, the court concluded that the scaffolding did not contitute a "common work area" because it did not endanger a signficant number of workers.  The court pointed out that even if a number of workers were endangered, the danger involved was not "readily observeable" by the general contractor, as it had only just been erected.

The Court also rejected Goodfallow's argument that the men working below the scaffolding were endangered by the scaffolding, thus endangering  a significant number of people:  the workers under the scaffolding were held to be subject to a different danger than workers on the scaffolding.  Another fine piece of semantic analysis by Judge Kirsten Kelly, the insurer's advocate.

Carpenter can sue contractor who left unguarded holes in concrete at worksite

Michael Sanderson was badly hurt when his scaffolding collapsed after one leg of the scaffolding fell into a hole in the concrete floor of his job site.  Skyline Concrete Floors, a sub of Cahill Construction, had paved the floor, preserving numerous holes intended to be utilized as drains.  The Defendant had covered these holes with plywood, which Sanderson claimed was an inadequate protection for workers in the common area who would be working on scaffolding.  The trial court dismissed  Sanderson's claim, holding that Skyline owed no duty to Sanderson and other workers on the site.

Contractor who moved and erected scaffold cannot sue owner

Wayne Lockard was an independent contractor using a scaffold to maintain ceiling lights in Defendant Siegfried's building, when the scaffold collapsed and he was badly hurt.  The scaffold collapsed because one of the spring-loaded holding pins in a scaffolding leg was not anchored in the corresponding hole, apparently.  The owner of the building had rented the scaffolding for Lockard and others to use in refurbishing and maintaining Siegfried's property.  Lockard believed that the owner should be liable for the injury because it was his duty to provide a safe scaffolding for Lockard to use.

Satellite TV installer may be "agent" of DISH provider

Linda Sue Wolford was badly hurt in a car accident, when a dish TV installer's service truck crossed the centerline at high speed and struck her vehicle.  The installer, Phillip Pikarski, had just completed one installation, and was dropping the paperwork off at the TV-service retailer's headquarters between installations when the accident occurred.  Wolford's attorneys sued Pikarski and the retailer, however, the Circuit Court judge dismissed her claims against the retailer, Thumb Home Real Video, LLC.

Plumber's employee can sue "contract manager" for breach of common work area doctrine

Frank DeBeul, a plumber, sued the Barton Malow Company after he was injured after tripping over rebar at a Southfield School system job site.   He claimed his trip injury was caused by  Barton Malow's failure to maintain safety in a common work area.  Barton Malow argued that its only duties arise by contract with the school system and that it owed no separate common law safety duty to the Plaintiff.  The trial court agreed and dismissed DeBeul's claim.

Lenawee County groundwater contamination case is reinstated

Thomas and Robert Robarge sued the Tecumseh Products Company, alleging that Tecumseh's manufacturing activities had diminished the use, enjoyment and market value of their property by reason of a spreading plume of groundwater contamination. The lower court dismissed their case after the Defendant raised an "Engler Majority" holding that the Defendants argued should apply to the Robarge claim. 

Blind assisted living resident can sue one of two contractors who caused his fall

Christopher Tucker was a legally blind resident at  Mavalena Assisted Care, LLC when he was hurt in 2005.  He was being guided out of the home by a care worker walking behind him, when he tripped and fell over a tool box left in front of the exit by  Richard Carson.  Mr. Carson was on the property as a subcontractor for Vincent Pipitone, d/b/a Pro Built Construction.  Carson was placing vinyl siding on the structure when he left the tool box in front of the doorway.

Victim cannot sue equipment rental agency for negligent entrustment

Joseph Burlingame was paralyzed when Jason Brown accidentally dropped the boom of  a rented rough terrain forklift  on him drring operation.  Burlingame sued Brown for negligence, and sued Brown's mother, who rented the forklift, as well as the forklift rental owner, NationsRent, Inc.  He obtained a default judgment against Jason, who was apparently uninsured, and pursued independent actions against Mrs. Brown and NationsRent.

Court of Appeals overturns lower court rulings involving ambulance wreck

James Schmeling, an EMT, was badly hurt when his co-worker drove an ambulance into the path of a Waste Management truck that had the right of way.  Schmeling sued Waste Management and its driver, claiming that the driver was exceeding the speed limit and contributed to the collision.   The lower court held that since Schmeling's "exclusive remedy" against his employer and co-worker was worker's compensation, Waste Management could not assign "fault" to these third-parties to reduce any verdict against it.  The Court of Appeals overturned this decision, holding that regardless of whether Schmeling had a "remedy" against the co-worker and employer, their fault would still reduce his potential recovery.

Allstate loses effort to avoid coverage under homeowner policy

David Mian, the owner and sole employee of a small business, purchased a press from another company with the intention of removing a vise attached to the press, for use in his business.  After removing the vise, he intended to sell the press for scrap.  Several years later, it was more convenient to simply  give the press to another company, Century Tool and Die.  In use at Century, a defect in the press caused serious injury to Joshua Sparks.  Sparks sued Mian, alleging that his negligence was a cause of the injury.  Allstate provided  homeowners' insurance to Mian, providing liability coverage in the event of Mian's negligence.   It filed suit, asking the Court to rule that it did not have to provide coverage for this incident, because it had an exclusion in the policy for injuries resulting from the insured's "business activities."

Worker's claim of negligence against equipment repairman is dismissed

Randall Carnell was hurt when he slipped on a puddle of hydraulic oil and fell in his his employer's industrial garage.   Crandall slipped on an oil spill leaking from the rear hub and chain case of a skid steer that had been repaired by a Wolverine Tractor & Equipment repairman three days earlier.  Nevertheless, the mechanic claimed that while he checked the hub and chain case fluid level, he did not perform any work on it.  His bill didn't charge for any work on the hub and chain case.

The Court held that since the skid steer was moved  into the garage after the mechanic completed his work--and could have been tampered with over the weekend--it was "mere speculation" for the injured man to claim that the mechanic had done something to cause the oil leak.  As a result, the injury claim could not be submitted to the jury to test the veracity of his testimony.

Is a negligent actor immune from liability because it is acting under a contract with a third party?

The Fultz case re-surfaced again this week, when the Court of Appeals dismissed an injury claim brought by George Frommert against Teera Construction Company.  Frommert fell with a collapsing scaffolding erected by Teera, a different sub-contractor on a building site, and claimed that Teera was negligent either in the erection of the scaffolding or in marking it out of service.

Court of Appeals examines "common work area" fall protection claim

Douglas Latham fell and suffered injury while unloading drywall from a scissors lift to an elevated island in a middle school contruction site.  The island was designed to hold hvac equipment and was enclosed on three sides. On the fourth side, a six-foot wide opening was retained for the delivery of materials and hvac equipment.  The opening utilized a single cable for fall protection, and the cable was removed during deliveries.

Freight driver is an "employee," not an independent contractor on day of collision

Jason Judy was driving a First Flight Freight Services truck at Detroit Metropolitan Airport in 2006, when he cause injuries to David Baum.  Judy was insured by Progressive Michigan for no fault coverage, while the truck he was driving was insured by Citizens.  The two carriers disagreed over which of them had primary responsibility to provide coverage for Baum's injuries.  The trial court had ruled that Progressive had primary responsibility, but the Court of Appeals overturned the lower court judge's decision.

Court of Appeals finds ambiguity and refuses to enforce indemnity agreement

Susie Poole suffered severe injury when she fell over a rolled floor mat at the Down River Community Federal Credit Union.  She sued the Credit  Union and also the Cintas Corporation, arguing that a Cintas employee was negligent in his delivery of the rolled mat.  Cintas argued that it was entitled to indemnification by Down River because it's standard contract with customers states that "Customer hereby agrees to defend, indemnify and hold harmless Company from any claims and damages arising out of or associated with this agreement, including any claims arising from defective products."

Court rejects product claim against bungee cord seller and distributor

Keith Fowler suffered a serious eye injury while fastening lumber to a trailer with a heavy duty bungee cord.  Sadly, this is a common injury associated with bungee cords:  I think our firm, alone, has investigated more than half a dozen of these cases.  Fowler was pulling the cord tight over the lumber when the cord separated from the hook on the opposite end and snapped back into his eye.  Virtually every claim we have investigated has occurred in the same fashion.  Bungee cords are deceptively dangerous pieces of equipment. In Fowler's case, the Court rejected Fowler's argument that the cords should be sold with a warning advising purchasers of the danger they present.

"Common work area" premises liability claim by injured worker is analyzed on appeal

George Madley sued Centex Real Estate Corporation after he was hurt on the jobsite.   He argued that Centex was negligent in controlling a common work area for the safety of sub-contractors' employees.    Centex had subbed out construction at a Macomb County residential housing development where Madley was hurt after being dispatched to finish "shoe and hardware" installation [installation of trim, door knobs, etc.].  Arriving at the dark, unlit and unfinished home he had been directed to trim out, Madley fell eight feet into the basement of the home after failing to recognize that another sub-contractor had removed the basement stairs to perform foundation work.

Contractor's insurer cannot avoid liability obligation by arguing ambiguity

Ernie Morgan was injured when a Menasha Corporation employee accidentally opened a loading platform underneath Morgan while he was delivering wood chips.  Morgan secured a verdict against Menasha, however, Menasha argued that Fairhaven Wood Harvesting was obligated to pay the verdict under an indemnification contract.  Fairhaven's insurance company, Essex Insurance Company argued that it was not bound by the insurance contract and did not owe a duty to pay the verdict.

Court again evaluates survivability of employee's claim that injury was intentionally caused by employer

Normally, an employee cannot sue his employer for negligently-caused, on-the-job injuries.  At the turn of the century, most states created workers compensation schemes that provided injured workers with compromised benefits (usually medical and partial wages) in return for the elimination of employer liability.  In Michigan, the sole exception to the employer's immunity from negligent conduct arises out of a statutory exception holding employers liable for injuries that they cause intentionally.  In previous cases, the Michigan appellate courts have narrowly interpreted this exception to exclude even cases where, statistically evaluated, employee injury was almost certain to result.  One line of cases has emerged to define when an employee can sue for "intentional" injuries, and the Court of Appeals addressed the issue in the recent case of Sandra Johnson and Hiram Jones v. Detroit Edison Company.

Another party denied justice by Engler Majority's decision eliminated "continuing wrong" statute of limitations.

For decades, Michigan did not allow the statute of limitations to run if a wrong-doer continued engaging in the same wrongful conduct.  This policy encouraged victims to be patient in responding to negligence and nuisance and to seek out non-litigious solutions and negotiated settlements.  Several years ago, however, the insurance-friendly majority of the Michigan Supreme Court handed down a ruling completely wiping out the "continuing wrong" doctrine.  Under the reactionary approach of the Engler justices, the statute of limitations would run from the first day of any trespass or tort, and regardless of how many times it was repeated, the victim would have no recourse after the statute of limitations was applied to that first transgression.

Insurer loses argument over providing coverage; must defend construction claim

FH Martin Construction Company contracted with Cimarron Services to act as a sub on a Kroger remodeling site.  Cimarron was required to provide indemnity insurance for FH Martin, and it bought liability insurance from Secura Insurance Holdings, Inc. to fulfill that obligation.   In 2008, the FH Martin Company was sued by David Slater, another subcontractor on the construction site where FH Martin was the General.  Slater argued that the General contractor had breached its duty to provide a common work area, and FH Martin argued that Slater's claim arose out of Cimarron activities. 

Slater's claim was summarily dismissed, however, in the meantime, FH Martin sued Secura for failing to provide it the coverage Cimarron had purchased.  Secura had agreed to insure "any person or organization for whom Cimarron was performing operations" if there was an underlying agreement for coverage, but it argued that this language did not apply because FH Martin wasn't a Named Insured on the policy.  The Court held that the insuring language unambiguously granted coverage to FH Martin and dismissed Secura's appeal.  I guess that one sad interpretation of this story is that insurance provides better protection to a corporation's money than it provides to a worker's safety.

Negligently stacked cement board injures work man; subcontractor who stacked is not responsible

Richard Loweke filed suit against Ann Arbor Ceiling and Partition Company after he was injured on a construction jobsite.  Twenty sheets (several hundred pounds) of cement board stacked against a hallway wall had fallen on Loweke, causing serious injury to his leg.  He sued the sub-contractor who delivered and stacked the cement board for negligence.  The Court of Appeals applied an Engler Majority interpretation of negligence law to invalidate Loweke's claim.  The judges cited the Fultz decision of the Engler Majority in ruling that when Ann Arbor, a subcontractor, signed a contract to deliver the cement board, it was relieved of its common law "duty of reasonable care" to third-parties, and thus owed no duty to Loweke.

Three no fault insurers but no PIP benefits, and insurers complain about frivolous lawsuits clogging the courts

Young Tabarak was walking home from school when a car jumped the curb and pinned her against a building, causing multiple fractures and serious injuries.  Tabarak lived with her mom in Dearborn Heights.  Her dad had originally come to the U.S. to escape Saddam Hussein, however, when Hussein was toppled, he returned to Iraq to seek employment and to build a new life there for his family.  He was there for almost two years, living with a sister and hoping to find the means to reunite his family, when Tabarak was hurt.  He had purchased car insurance on a stored vehicle from Farm Bureau.  His wife's car was insured with Bristol West.  Both insurers refused to pay Tabarak's medical bills and PIP benefits, so Citizens Insurance was assigned to pay the claims:  it also refused to pay, forcing Tabarak's mother and Children's Hospital of Michigan to sue all three insurers.

Court refuses to require Dow to respond to subpoena regarding alleged contaminant

Joanne Branham sued Rohm and Hass Company in Pennsylvania, alleged that her deceased husband's rare brain cancer was caused by chemical pollution from the Defendant's nearby plant.  Branham's attorneys subpoenaed several categories of Dow Chemical records through the Michigan Courts, seeking information regarding the alleged offending chemical.  The family sought Dow's studies of the chemical's carcinogenicity, and information relating to Dow's communcations with the Defendant.  Dow refused to honor the subpoena, raising multiple excuses.

Court deems jury must decide question of agency and liability

Stephen Krywy suffered devastating injuries when he was rear-ended by a Detroit Newspaper Agency [Detroit News] delivery contractor's substitute driver.  The trial judge dismissed Krywy's claim against the News, finding that the substitute driver, like the owner of the delivery route, was not an agent of the newspaper, but rather was an independent contractor.  The Court of Appeals noted that this case was almost identical to a case which the Supreme Court had decided 40 years ago--and that in the prior unanimous decision the Court had held that a jury must decide whether the driver "fell within the scope of an agency relationship" with the News.

After reviewing the facts pertinent to the News' control over the newspaper delivery route, the Court of Appeals concluded that--just as forty years ago--there were enough facts to create a jury question over whether the News was responsible for the delivery driver.  The case was returned to the lower court where a jury will have to weigh the indices of employment and assess whether the delivery contractor and its "sub-agent" were really employees of the News or whether they were truly independent contractors with a property interest in their route and sufficient freedom and flexibility to be something other than "employees."

Court criticizes, but reluctantly enforces "contract immunity"

Brandon Carrington was walking alongside an area of new highway construction, in the dark, when he stepped over a new "curb" into a deep hole.  He suffered injuries that resulted in surgery, and his family investigated the cause of his fall.  They found that he fell in to an area where one subcontractor, Cadillac Asphalt, had failed to backfill or barricade a deep hole adjacent to the new curb.  When Carrington sued, Cadillac argued that under the "Engler Majority's" new analysis of contract liability, Cadillac owed no duty to Carrington or the public in general, because its failure to backfill or barricade fell within the contractual duties it had assumed to the State of Michigan as part of the construction project.  In other words, Cadillac argued that because it was obligated to perform its duties safely under its contract with the State, it was relieved of any duty to act reasonably to protect innocent third-parties.

Woman injured during terminal escalator renovation cannot sue Northwest Airlines for unsafe premises

Elizabeth Banaszak was badly hurt when she fell and became entangled in the machinery of an airport escalator at Metro Airport.  An employee of a subcontractor engaged in repairs, Banaszak filed suit against Otis Elevator, the Hunt Construction Group and Northwest Airlines, arguing that each of these entities had contributed to the condition that caused her injuries.  Her attorneys were required to name each potentially "at-fault" entity because Michigan has almost eliminated "joint and several" or "deep-pocket" liability--leaving the victim to bear the loss associated with any at-fault who is underinsured, under-capitalized or unavailable.  Banaszak's case made it to the Michigan Supreme Court this week, where the more moderate Court [after conservative activist Clifford Taylor lost his bid for re-election] reversed two lower court decisions that had been decided in favor of injured plaintiffs.

Daimler-Chrysler must respond to injury claim arising out of allegedly dangerous trap door

Timothy Jones suffered severe injuries when he fell through a trap door that a subcontractor's employees had just opened in a mezzanine walkway in Defendant's Sterling Heights Plant.  A millwright, Jones was in the plant during change-over to convert conveyor components. He filed suit against D-C, arguing that D-C was responsible for the negligent location and construction of the trap door, and for the negligence of sub-contractor employees in opening the door without erecting barricades.  The trial court dismissed his claim, noting that Daimler-Chrysler had no notice of the open trapdoor during the seconds before Jones fell. 

Worker scalded while dismantling plumbing cannot sue company that was refurbishing dairy

David Apsey was burned over most of his torso and thighs while attempting to dismantle sterilizing lines at his employer, Dean Foods-Liberty Dairy.  He sued Northwest Kent Mechanical, arguing that the company was negligent in the manner in which it reconstructed Liberty's plumbing and sterilizing system.  Apsey was hurt when scalding water released from a line that Apsey believed had been drained and depressurized:  his attorneys claimed that Northwest was responsible for negligence in selecting or advising over the use of ball valves installed in the line and for failing to incorporate a "pressure release system."

Employee of subcontractor cannot sue general when wall collapses

The Plaintiff in a recent unpublished case sued Viva Homes after he was injured in a wall collapse.  He was working as a brick layer on one of two homes being constructed simultaneously by Viva, and had been asked by the foremen of two subs (his own and the carpenters') to assist in bracing the wall.  The Court of Appeals dismissed his claim, holding that he was not injured in a "common work area" because the risk of erecting the wall did not endanger a "significant" number of workers, and therefore did not implicate the general contractor. 

Oddly, the court also held that the inherently dangerous activity rule--which would have provided a separate theory of recovery--did not apply to protect persons actually engaged in dangerous activities.  This seems like a mis-reading of existing Michigan law, although the underlying theory has been significantly eroded over the past two decades.  While the inherently dangerous activity rule unquestionably applied to men working on towers and telephone poles, for example in Dowell v. General Telephone in the 1970s, its application has been greatly limited by tort "reforming" judicial activists.

Insurer denied right to treat cleaning agents as "pollutant" and avoid liability coverage

Safety King Incorporated provides cleaning services and specializes in cleaning and treating ductwork.  It uses a sanitizing agent, triclosan, which is an antimicrobial found in a variety of uses, including personal hygiene products and cosmetics, although it is also categorized as a pesticide. Safety King purchased liability coverage through Hastings Mutual Insurance Company.  In 2007, a homeowner filed suit against Safety King, arguing that the children in the home suffered injury by mis-use of the sanitizing agent.  Hastings Mutual argued that it did not have to provide coverage to Safety King because its pollution exclusion applied to Safety King's use of a known pesticide.  The trial court agreed and refused to enforce the liability insurance contract.

Employer held accountable, beyond workers compensation, for traumatic amputation

Kristi Fries lost both hands above the wrist when the stamping machine she was operating cycled in response to her loose clothing.  She sued her employer, Mavrick Metal Stamping, arguing that it was responsible beyond workers compensation benefits because it had intentionally caused her injury.  An employer in Michigan is immune even from gross negligence or willful misconduct, if an employee is covered by workers compensation:  the courts have been exceedingly slow to allow employees to recover more than medical and partial wages, no matter how egregious the employer's fault is causing an injury.  The Court of Appeals allowed Fries to recover outside work comp, however, after reciting the facts leading up to her horrible injury.

Employee limited to work comp as exclusive remedy for injuries

Zoran Saveski attempted to sue the Ford Motor Company, alleging that he suffered injury as a direct result of intentional misconduct by a supervisor.  Saveski , a toolmaker, was directed to assist with maintenance on a "Lamb" machine while the plant was shut down.  During maintenance, he was left holding a 100 pound component, causing a blown disc.  He maintained that the supervisor intentionally placed him in a position likely to cause injury.  The Court held that he had not pleaded sufficient facts to document an exception to the workers comp "exclusive remedy" provision applicable to injuries suffered at work.  In order to avoid that provision and sue his employer for negligence, Saveski would have needed to show that the supervisor actually intended his injury; it was not enough to show that an injury was "likely" or "probable".

Trucker can sue for lumber yard employees' negligence

Wilmer Floyd fell 13 feet from the top of a flatbed load of lumber as he was attempting to cover it with a tarp that weighed 150 pounds.  Floyd had been sent to the Insulspan, Inc., lumberyard to pick up the lumber and was attempting to cover it prior to transport.  Despite instructions to the contrary, the Insulspan employees allegedly had left the lumber stacked out in a snowstorm and loaded it on Floyd's flatbed without removing several inches of snow fromt the materials.  Floyd claimed that he slipped on the snow and fell while adjusting the tarp, and sued Insulspan for negligence in failing to cover the lumber or remove the snow prior to loading.  The lower court dismissed Floyd's claim, applying the "open and obvious" exclusion to premises liability to obviate any duty by Insulspan.  The Appellate Court reversed, pointing out that the claim was one for negligence unrelated to Insulspan's  possession of the property and not alleging a hazard on the property.

Farm Bureau punished for "lying in the weeds" on experts

Laura Putnam-Wesener suffered a head injury, apparently, in a motor vehicle collision.  She sued the other driver and she also had to fight with her own insurer, Farm Bureau, to collect PIP benefits.  Ultimately, she settled the claim against the at-fault.  In the meantime, Farm Bureau sought leave of the court to add as expert witnesses the neurologist and neuropsychologist who had examined the injured woman for the at-fault's insurer.  The problem was that Farm Bureau sought to add the experts 18 months late, and the Court had already extended the expert witness deadline once to accommodate Farm Bureau's request to add expert physicians.