morning you represent the appellant when you come up let us know how much time you will lie for both of you even if you've already informed the clerk of that may call the first case how long three minutes please thank you as of course aware this case arises from a summary judgment ruling arising out of the state of michigan involving the injury to mr spencer on a construction site the case really involves two separate theories of liability predicated and two separate duties and their interplay in this case it was presented by plaintiff primarily under construction liability principles in which someone overseeing a construction project is responsible either for its own act of negligence or for its negligence in supervising others who are performing under its  it also involves premises liability principles arising from the duty imposed on one who owns property in this case it was pleaded and presented primarily as a construction liability case but the district court construed as a premises liability case and dismissed it on the basis of the open obvious fact friend which negates a duty on a property owner if the injurious condition is open and obvious unless there are special aspects first of all we argue that the court was in error in failing to recognize or analyze it as a construction liability case in the way it was pleaded according to the court's reasoning because a condition of the property was involved it was exclusively  liability case and if you take that to its logical conclusion consider a case like this a and b push down the plaintiff and when he falls he hits his head on a ro one of the two a owns the property b doesn't under the court's analysis he could not be held liable for pushing the plaintiff down because the rock was a condition the property that caused the injury and to follow through with that reasoning because a condition of the property was involved the owner couldn't be held liable for its negligence and pushing him down however b i don't think that takes i think event if you look at the michigan case law particularly the good fairy case they recognize these as two separate theories of liability arising from two different duties and two different statuses containing two different elements and the firing is clear in saying the open and obvious doctrine which add negates a duty and premises owner doesn't apply to construction liability case and there are several others that we have cited in which the court reaches a sense of the same conclusion implicitly by conducting separate analysis in so the argument is that the court should have considered the case as pleaded under the construction liability theory and that rises or falls on its own regardless of whether the negligent party is the owner and in fact there are several other cases which say that two parties on a construction site each owes a duty of reasonable care for the mistaken the workers compensation carrier would have a lien on any recovery for the amount of the worker's comp benefits that had been paid yeah but if the if  case is that even under the premises liability analysis as the judge specifically recognized that doctrine says there's no duty if it's open  vs unless there are special aspects that's part and parcel of the same analysis and in this case the judge even went to and to say that the plaintiff had to use this where perhaps the in a general danger might be open in obvious but there was something about the situation that the person to whom it was out in an obvious i mean that's not this is not the case law but i am sort of extrapolating a little bit like for example you know there's water there but you don't know had deep it is there you don't know what where the ja rocks are or something like that is how it there might be an open and obvious hazard but the extent of that as or where the nature of the hazard is and that brings it into the special it's actually a little bit different if you look at the lugo opinion itself it has two examples one is if the situation is essentially unavoidable close quote and they use the water analogy if if you can't avoid the water even if it's open and obvious that's based on the idea that you have an ability to avoid it but if you're put in a situation where that condition is essentially the so deep that if you fall you're going to get seriously hurt and so there are really two different structural aspects used in the lugo and analysis and we argue that we fit into both first it's essentially unavoidable just as judge rosen found that he had to encounter that dangerous condition and the second one is because you've got this fall hazard and the  exactly what the case is all about we're suing on the basis of that it was essentially unavoidable in the sense that his job required that one of his coworkers according to testimony told him or asked him to get the come on or the chain fall necessary to move the equipment but hear about this on and it is there an issue that hollingsworth properly adjusted because it didn't it was a short amount for somehow didn't save him from the injury i mean did he i mean one maybe that's the issue of contributory negligence exactly that's exactly the point it there was  grey and removed them so that d t so that the equipment could be worked on my understanding is d e d t e one hundred brand to do it the brand was the actual actor the brand was and there was no way to work on the equipment unless you moved planking right that's disagreed the testimony is splendid the defense people say that  you could have you could do it without the platform doing it without the platform serve some other beneficial purpose argument was that to do it safely you need the platform that's exactly what it's there for it's it's unclear to make wasn't supposed wasn't your client supposed to have doubted that his supervisor before the supervisors before he was consent from g t e to get into this area in fact i think there had been something like thirty four people in the past two days and so and he qualified and all that there were some yeah  part of the maintenance there was some yellow i think what you may be referring to is there was some yellow tape that he crossed through and there was a disagreement as to the meaning of the yellow tape the defendant argues it meant that he shouldn't have gone iraq despite being a word to do so or by his co workers his testimony was that was to keep out unauthorized people but since he was permitted unauthorized he was expected or at least allowed to go past the yellow tape because he was required to do it to accomplish is job function so our ultimate argument is first that the construction liability theory remains viable under the fiery and that the open obvious defense to a premises duty doesn't apply to the separate duty and separate liability and secondly that the court erred in applying the premises liability open obvious doctrine by failing to consider that the two special aspects which were identified in the go thank you yes and the runners tom brannigan from the bowman took law firm for d t e the apple e your honors i was struck by plaintiffs excuse me a poet counsels comment that the trial judge judge rosen did not consider all of the aspects of the plaintiff's complaint in the granting our motion for summary judgment i think that the record below from below including the judge's order opinion in order is crystal clear and that the judge considered every aspect of the plaintiff's complaint judge rosen the trial judge pointed out in his opinion an order that u the court is not the lower court in this court is not bound to accept the labels that a party attaches to a claim so even though the plaintiff appellant tried to style his complaint as a quote retained control common work area doctorin construction site complaint under the holding of the how is it twenty two northwest second at two fifty eight this is a direct cite and quote from the opinion below the court is not bound by the labels that the parties attach their claims but instead must determine the grab them in of this action by reading the complaint as a whole and by looking beyond the mere procedural labels to determine the asp the exact nature of the plaintiff's claims that's exactly what judge rosen did and in doing so the judge determined rightfully in our view based on the record facts that this is on the facts that were presented below and that are available to this court above would allow a premises liability claim but even the premises liability claim against d t e fails because the plaintiff has not brought forth facts to get over two points first he can't get over the fact that he's already emitted that the danger he claims that causes injury was open and obvious if you look at it the appellant's reply brief and page fourteen he said he except that the danger that allegedly causes injury is open an obvious and with respect to the defense to that now which is what he's raising with the exception to the open an obvious defense to a premises owner's potential liability to a business invitee these so called special aspects provision of michigan law there were no facts below there are no facts here that would support a special aspect of this open an obvious risk first as the court in lugo and the court of ha through which we cite in our briefs point out this special aspects exception is a very narrow exception to the open and obvious doctor under michigan law it requires a unique or special circumstance to exist on the land to to do it to a stablished special aspects there must be something special or particular about the open obvious danger in order for the appellate property owner to be expected to anticipate the harm from the condition and there are really two special aspects recognized under michigan law that would negate the open an obvious defense one that the hazard was effectively unavoidable to that they hazard was deposition as follows and i think this is just this is cited in our brief i think it's absolutely critical to this issue question but did anyone tell you stuart the appellant's first name stewart going to cha for all its or yeah one of the guys yeah would you go up there and get a chain fall before i go on let me point out that in the area of the d t facility that the appellant was working the so called west primary here heater there's a lower section and an upper section at the time of the incident the appellant was working with his fellow employees of monarch a contractor in the lower section and there was no work scheduled whatsoever to occur in the upper section where the danger was that he claims caused a century ago one of your neighbor who was the told you that it's or no i don't question and he specifically told you to go up into the upper section to get a chain fall as opposed to just go get the chain fall he answer yes that's right rigging was upstairs question but did he tell you to good up stairs to get a chain fall or just tell you the answer he just asked for a chain fall so then record evidence is critical to the special aspects point because he was not told  is the reason that he says he was up to the danger to the upper level of the west primary air heater because he says incorrectly in a way that is not supported by any record of evidence that the chain falls were only available to him lobster there is evidence record evidence of the stefanki that well that's true but more anything to corroborate is there is no in fact there is act but but on this point what is most critical is that he was not compelled to confront the danger and that what what has not been really elaborated on up until now is the reality of the situation that he confronted once he decided to go climb the stairs go up to the location where he thought chain falls were only located once he got up stairs to the area where he had to traverse on these narrow bridge before he could traverse on those grids which is where he felt he was confronted with a yellow caution rope and hang tag that instructed him not to enter that area he was asked in his deposition did you understand what that meant oh yes that was supposed to go in there did you understand why you weren't supposed to go in there you yes i understood that there was a fair has hurt in this area to be on the yellow caution rope and hanging tag that says you don't have permission to enter the syria he then made his second choice he made the choice to disregard that yellow rope and enter that area and that's where he felt he could have made other choices harness is something that is fitted on as i look at that's what i would have understood art is to big but i had no idea what it can to change for all is this mechanical device that actually has a chain on it and some hooks and you can use it to lift heavy objects and it's a tool the testimony is that there were chain follows near the lower area where he and his fellow monarch employees were working and of course as you point correctly your honor the  that he thought there was a chain fall above the put critical fact here is that no one compelled the appellant to go up to the harm he made that choice as testimony points out he also made the choice to disregard the yellow caution rope and hang tab tang see ten ten that required him to get permission to go beyond that point so under lugo and hoffer which are cited by both parties here on the question of special aspects the plaintiff wasn't confronted with an unavoidable in a staple ball has or he was confronted with a choice and he made the choice to go up to the upper section of the heat or to confront a danger so special access aspects doesn't apply which is why it was appropriate for the trial judge to dismiss this case the on the premises liability theory that is really the going to answer their question you asked i made a note of this us was three workers compensation claim there was and there was a worker's compensation recovery and the worker's compensation carrier was an intervening plaintiff below to enforce its rights rights against the recovery or potential recovering the personal injury case now to answer your question directly the worker's compensation law in the state of michigan wouldn't preclude the the appellant from bringing a claim a premises liability claim against a party that is not his employer in this situation my client d t is the owner of the power plant where the happened there was a construction project going out of the power plant in the appellant was an employee of a contractor company called monarch welding and engineering that was under contract with my client to operate as  general contractor and run the entire construction operation there were other sub contractors hired by monarch so but the appellant was not an employee of my client he was an employee of the general contractor which brings me to the other issues that the appellee has raised the poorly claims that there are facts genuine issues of fact that would support a claim under the skin laws provision called the retain control doctrine of the common work area doctrine and it's our position that there are no facts that create even a question of fact on the issue of retain control retain control is explained in the case that both sides have cited to the court michigan supreme court case called ormsby retain control applies if the owner of a project in this case my client retained so much control over the actual work that was being done that it has essential he stepped into the shoes of the general contractor that hired to do the work we have at least one indicator of some if that's right seems like it's an indicator of some contro over the workplace be your own or your description of the arrangement sounded like the party but the district court was d t e as the owner of the power facility power plant facility in michigan and tradin to a general contractor relationship with monarch and there were also some contracts between monarch and brand and additional contracts between other contractors but the fact that the owner is the district court statement that what indicator of i don't believe so i don't think the just entering that a property owner who just enters into a contract with a general contractor or sub contractor is therefore retaining slight i don't believe so your honor and for the last thirty years michigan courts have been looking at this issue and responded to questions your good question like you just asked in the negative that does not by itself read to vs great lakes steele three fifteen north west second five fifty eight  have concluded that as a matter of long when an owner of the property retains the right to reject contractors hired by a general contractor change the work specifications for the job complete the work on its own impose safety requirements on the general contractor and other contractors terminate employees of subcontractors who did not comply with the owner's own safety rules none of those aspects as a matter of law lead to retain control that's what we have here as a matter of law my client did not retain control there are no facts of record that would even create a question of fact on funk first is general motors from the early one nine hundred seventy s which presents a very different set of facts here so that's where we should look at what retained control looks like that's work really that's where the doctrine was created and any other namely the case of funk versus general motors your honor for the reasons that we have cited to you all in our briefs and for the reasons that i have raised before you this morning we believe that the trial court's decision should be affirmed and that's what we're asking you to do now thank you thank you thank you i agree with counsel on a few points one of them is that indeed the funk and get fiery cases are two critical supreme court decisions regarding retain control there's also another plumber versus bechtel it cited in the brief those are the ones that retain control in this case however the judge never reached that because he didn't even think it was a viable theory in the first place and that's the problem  mind in this case edison was directing brand and directing monitor and we don't know of all of the details except that there are fifteen different contractors on this site and you need construction liability has its elements and one of them is that the danger is readily observable now contrast that with the open an obvious bactrian of premises liability law if you action itself and that's why in my view the courts have consistently looked at these as two different theories of liability  with regard to the special aspects is counsel quoted the evidence is a that he is supposed to get a chain come along it's called sometimes or a chain fall and he testifies that the only one is up there now if you're told to get something which is only in one location assuming you're doing your job you have no alternative and that's what i think the hofner case as well says it's essentially unavoidable and the point is when you get to that position in the context of being told that you have to do it is there a way you can avoid the hazard of the