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STATE OF MICHIGAN 

COURT OF APPEALS 

EDDIE L JACOBS and SONYA R JACOBS, 

 Plaintiffs-Appellants, 

UNPUBLISHED 

December 13, 2016 

v No. 328589 

Macomb Circuit Court 

WALBRIDGE ALDINGER COMPANY, 

UNNAMED CONTRACTORS, and UNNAMED 

SUBCONTRACTORS, 

LC No. 2014-001639-NI 

 Defendants-Appellees, 

and 

FORD MOTOR COMPANY, 

 Miscellaneous Intervenor. 

Before: JANSEN, P.J., and CAVANAGH and BOONSTRA, JJ. 

PER CURIAM. 

 Plaintiff1

 appeals by right the trial court’s order granting defendant Walbridge Aldinger 

Company’s (Walbridge) motion for summary disposition in this negligence action. We affirm. 

I. PERTINENT FACTS AND PROCEDURAL HISTORY 

 This case arises out of a workplace accident that occurred at Ford Motor Company’s 

(FMC) Sterling Axle Plant.2

 At the time, FMC was engaged in a demolition project involving 

 

1

 Plaintiff Sonya R. Jacobs, the wife of plaintiff Eddie L. Jacobs, also appeals the trial court’s 

order by right. Because her loss of consortium claim is derivative and she was not involved in 

the events from which this matter arose, we will use the singular term “plaintiff” throughout this 

opinion to refer to Mr. Jacobs. 

2

 Although Ford Motor Company was designated as an intervenor in the trial court’s register of 

actions, it did not actually intervene in this matter. Instead, it appeared as a nonparty, for the sole 
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the removal of old machinery and lighting from a portion of its facility so that it could be 

replaced with new equipment. While attempting to remove an elevated raceway,3 plaintiff, an 

industrial electrician employed by FMC, fell from a ladder and sustained a traumatic brain 

injury, as well as serious injuries to his back, neck, and right shoulder. Plaintiff suffered posttraumatic stress disorder following the accident. According to plaintiff, he was working on a 

large machine with two other FMC electricians, although his coworkers were each working 

independently on different sides of the machine at the time he fell. Describing his fall, plaintiff 

said, “I was getting ready to come down the ladder and all of a sudden the ladder was swept from 

under me. I did not see the ductwork, I did not see it hit me, I really don’t know what 

happened.” 

 The nature and scope of Walbridge’s role with respect to the project are unclear. 

Walbridge was hired to provide “construction services,” which included the services of a 

construction manager and a safety engineer. Although the purchase order incorporated by 

reference FMC’s global specifications, neither the purchase order nor the global specifications 

identified the role of a “construction manager” or a “safety engineer.” The deposition testimony 

of several FMC and Walbridge employees revealed that there was a significant safety component 

to Walbridge’s contractual duties. 

 There were a number of safety policies and procedures in place for the project, including 

the required use of pre-task analyses (PTAs). A PTA is a risk assessment tool that is used to plan 

the work that is typically required to be performed for high risk, non-routine activities, including 

demolition work, work performed at heights, and removal of existing equipment or building 

infrastructure. The person preparing the PTA is required to determine the work sequence of the 

task being analyzed, document each step of the sequence, identify the hazards associated with 

each step, and document the appropriate protective measures or equipment that should be used to 

minimize or eliminate the anticipated hazards. According to plaintiff, Walbridge was involved 

in creating and auditing the project’s PTAs. Plaintiff argued at summary disposition that 

Walbridge was negligent in performing that task because the PTA that was applicable to 

plaintiff’s demolition work failed to adequately notify him that he should work directly with 

partners when performing demolition. 

 Plaintiff filed a single-count complaint alleging that Walbridge was the “general 

contractor or the project contractor” for the job site. As such, Walbridge was “in charge of 

safety and demolition at the job site.” In his complaint, plaintiff articulated Walbridge’s alleged 

duty and negligence as follows: 

 19. At all times relevant, Defendant Walbridge Aldinger Company, as 

General Contractor or Project Contractor, owed a duty to Mr. Jacobs and to all 

other individuals working at the jobsite, to supervise the jobsite activities being 

purpose of obtaining a protective order with respect to a number of confidential internal 

documents it produced in connection with this case. 

3

 A raceway is a square piece of ductwork that encloses wires running between the overhead 

power source and the various equipment or machines. 
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undertaken by all contractors and subcontractors,[4] to ensure that they observed 

reasonable safety precautions when performing their activities, so as not to subject 

other tradesmen to unreasonable risk of injury and harm. 

 20. Notwithstanding its duties in the premises, Defendant Walbridge 

Aldinger Company breached the same by: 

 a. failing to properly oversee its employees, agents, 

contractors and subcontractors; 

 b. failing to properly oversee safety for anyone at the jobsite 

at any time where Walbridge Aldinger controlled, in whole 

or in part, that site; 

 b. [sic] failing to implement reasonable safety measures to prevent 

the raceway and conduit from causing aggravated injuries 

to electricians, including Mr. Jacobs; 

 c. [sic] otherwise failing to maintain the jobsite in a reasonably 

safe condition, and to exercise due care to prevent and to 

obviate the readily observable, avoidable dangerous 

conditions which Defendant Walbridge Aldinger Company 

knew or should have known, posed a high degree of risk to 

Mr. Jacobs and other electricians, in the exercise of its 

reasonably supervisory duties in the premises. 

 After the close of discovery, Walbridge filed a motion for summary disposition pursuant 

to MCR 2.116(C)(10). For purposes of its motion, Walbridge did not dispute that it was the 

general contractor for the project or that it controlled plaintiff’s work—although it also noted that 

both concessions were contradicted by the evidence gleaned during discovery. Nonetheless, 

Walbridge argued that, even if it had been the general contractor for the project, it was still 

entitled to judgment as a matter of law because, ordinarily, “a general contractor does not have a 

duty as to the safety of tradesmen and is not liable for any injuries they may sustain on a 

construction project.” Thus, Walbridge argued, the only way for plaintiff to hold it liable for his 

injuries was by demonstrating that the “common work area doctrine” applied to his claim, which 

Walbridge contended plaintiff was unable to do. 

 In his response to Walbridge’s motion, plaintiff observed that Walbridge’s entire 

argument was premised on the inapplicability of the common work area doctrine. Plaintiff 

agreed that his claim did not fall within the scope of the doctrine because he was not attempting 

 

4

 The parties agree that there were no unnamed contractors or subcontractors working on the 

project during the relevant time frame. However, the unnamed contractor and subcontractor 

defendants were never dismissed from the lower court proceedings and were identified as 

appellees in the claim of appeal filed in this matter. 
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to impose liability on Walbridge based on the negligence of third-party subcontractors. Instead, 

plaintiff asserted that Walbridge was directly liable as a result of its own active negligence. 

Specifically, plaintiff argued that the FMC-Walbridge contract required Walbridge to review the 

PTAs to ensure that they documented anticipated hazards and adequate safeguarding measures. 

Thus, by participating and contributing to the creation of the PTAs, Walbridge assumed a 

common-law duty to perform that undertaking with reasonable care. Plaintiff argued that 

Walbridge was actively negligent because it failed to amend the PTA at issue to notify 

tradesmen, like plaintiff, that they were required to work directly with partners when performing 

demolition work. 

 In a written opinion and order, the trial court granted Walbridge’s summary disposition 

motion. After setting forth the principles of the common work area doctrine and quoting several 

paragraphs from plaintiff’s complaint, the opinion and order read as follows: 

 Plaintiff’s complaint for negligence clearly sets forth a claim based upon 

the common work area doctrine. Plaintiff alleges a duty of care based upon 

defendant’s relationship to the project as the general contractor. Since plaintiff 

does not contest defendant’s motion in relation to the common work area 

doctrine, and plaintiff’s complaint does not allege a theory of liability other than 

the common work area doctrine, summary disposition is appropriate. Plaintiff has 

not filed a motion to file an amended complaint, and has failed to provide the 

Court with argument or facts to justify leave to amend his complaint. Plaintiff’s 

argument that defendant committed negligence by failing to perform contractual 

tasks is insufficient to establish a genuine issue of material fact on his claim as 

pled. . . . 

 Based upon the reasons set forth above, defendant’s motion for summary 

disposition is GRANTED. In compliance with MCR 2.602(A)(3), the Court 

states this Opinion and Order resolves the last claim and closes the case. [First 

emphasis added.] 

 This appeal followed. 

II. STANDARD OF REVIEW 

 This Court reviews de novo rulings on summary disposition motions. Wilson v Alpena 

Co Rd Comm, 474 Mich 161, 166; 713 NW2d 717 (2006). “Summary disposition is appropriate 

under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving 

party is entitled to judgment as a matter of law.” Dancey v Travelers Prop Cas Co, 288 Mich 

App 1, 7; 792 NW2d 372 (2010), quoting West v Gen Motors Corp, 469 Mich 177, 183; 665 

NW2d 468 (2003). “When deciding a motion for summary disposition under this rule, a court 

must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence 

then filed in the action or submitted by the parties in the light most favorable to the nonmoving 

party.” Bialick v Megan Mary, Inc, 286 Mich App 359, 362; 780 NW2d 599 (2009). 
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III. ANALYSIS 

 On appeal, plaintiff argues that the trial court erred because it granted Walbridge’s 

motion based on its conclusion that Walbridge was as a matter of law not liable to plaintiff under 

the common work area doctrine, despite the fact that plaintiff characterized his claim against 

Walbridge as one for active negligence and not as one arising out of the negligence of a thirdparty. We disagree. 

 “In Michigan the primary function of a pleading ‘is to give notice of the nature of the 

claim or defense sufficient to permit the opposite party to take a responsive position.’ ” Thomai 

v MIBA Hydramechanica Corp, 303 Mich App 196, 212; 842 NW2d 417 (2013), rev’d on other 

grounds by 496 Mich 854 (2014), quoting Stanke v State Farm Mut Auto Ins Co, 200 Mich App 

307, 317; 503 NW2d 758 (1993). Therefore, a complaint need only contain a “statement of the 

facts, without repetition, on which the pleader relies in stating the cause of action, with the 

specific allegations necessary reasonably to inform the adverse party of the nature of the claims 

the adverse party is called on to defend[.]” Kincaid v Cardwell, 300 Mich App 513, 529; 834 

NW2d 122 (2013), quoting MCR 2.111(B)(1) (alteration in original). 

 In the context of claims arising from injuries on a construction jobsite, the general rule is 

that only a construction worker’s immediate employer is responsible for the worker’s safety, and 

a general contractor will not typically be held liable for an injury that is caused by the negligence 

of its subcontractor. Latham v Barton Malow Co, 480 Mich 105, 112; 746 NW2d 868 (2008). 

However, the “common work area doctrine” sets forth an exception to this general rule and 

imposes liability on a general contractor for construction related injuries if the plaintiff can 

demonstrate that “(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.” Id. at 108-109. As our Supreme Court observed in Latham, the common work area 

doctrine was adopted to “discourage those in control of the worksite from ignoring or being 

careless about unsafe working conditions . . . .” Id. at 112. The common work area doctrine 

addresses vicarious liability; a general contractor also may be held liable for an injury that is 

directly caused by its own active negligence. Johnson v A & M Custom Built Homes of West 

Bloomfield, 261 Mich App 719, 722; 683 NW2d 229 (2004). Thus, when a general contractor 

engages in a specific undertaking on a construction site, it is obligated to exercise due care in 

performing that undertaking so that it does not “unreasonably endanger the person or property of 

others.” Id. 

 Plaintiff conceded before the trial court, and concedes on appeal, that the common work 

area doctrine is inapplicable to his claim against Walbridge. Given plaintiff’s concession 

regarding the inapplicability of the common work area doctrine to this case, it follows that the 

trial court properly granted summary disposition to Walbridge if, as the trial court held, that was 

the only theory of liability alleged in plaintiff’s complaint. In determining the nature of the 

claim presented by a complaint, Michigan courts are not bound by procedural labels and, instead, 

determine the gravamen of an action by reading the claim as a whole. David v Sternberg, 272 

Mich App 377, 381; 726 NW2d 89 (2006) (citations omitted). Plaintiff contends that the 

allegations in his complaint, when read as a whole, were sufficient to give Walbridge notice that 

it was required to defend itself against a claim of active negligence. We disagree. 
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 In paragraph 19 of plaintiff’s complaint, plaintiff articulated Walbridge’s alleged duty to 

supervise the jobsite activities by reference to its role as general contractor or project contractor. 

In other words, plaintiff asserted that Walbridge’s duty arose from its broad supervisory role for 

the project—the very duty that is at issue in a common work area claim. Latham, 480 Mich at 

112. By contrast, had plaintiff pleaded a claim for active negligence, Walbridge’s duty would 

have arisen from the specific tasks that it performed on the project. Johnson, 261 Mich App at 

722. Plaintiff’s complaint alleged no such specific tasks or any resulting duty. 

 Likewise, paragraph 20 of plaintiff’s complaint articulates how Walbridge allegedly 

breached the duties that had been alleged in paragraph 19 (which, again, related solely to 

supervision in the role of a general contractor or project contractor), and thus also derives from 

the common work area doctrine. Under the doctrine, a general contractor breaches its duty of 

care by failing to “assure that reasonable steps within its supervisory and coordinating authority 

are taken to guard against readily observable, avoidable dangers in common work areas which 

create a high degree of risk to a significant number of workmen.” Id. Using similar language, 

plaintiff alleged in his complaint that Walbridge was negligent because it had failed to exercise 

its oversight authority, implement safety measures, or take other actions that would “prevent and 

obviate the readily observable, avoidable dangerous conditions which Defendant Walbridge 

Aldinger Company knew or should have known, posed a high degree of risk to Mr. Jacobs and 

other electricians, in the exercise of its reasonable supervisory duties in the premises.” Again, 

plaintiff’s allegation of negligence related to Walbridge’s alleged failure to exercise the oversight 

and supervisory authority of a general contractor, rather than its negligent performance of any 

tasks that it had undertaken to perform on the construction site. 

 By way of comparison, this Court in Johnson rejected a contractor defendant’s argument 

that an injured plaintiff’s common-law negligence claim against the defendant was precluded as 

a result of his failure to plead “active negligence” in his complaint. Johnson, 261 Mich App at 

723. The Court reasoned that the plaintiff’s complaint satisfied Michigan’s notice-pleading 

requirements because it alleged that the plaintiff was injured as a result of falling when the 

toeboards that defendant had negligently installed came loose. Id. Thus, because the plaintiff 

had alleged specific actions that he believed the defendant had negligently performed, rather than 

relying solely on a generalized duty imposed under the common work area doctrine, the 

complaint was sufficient to assert an active negligence claim. Id. By contrast, plaintiff’s 

complaint in this case failed to identify any specific tasks that Walbridge performed in a 

negligent manner in violation of its common-law duty of care, instead relying on generalized 

allegations that would have put defendant on notice that plaintiff’s claim was one for vicarious 

liability only under the common work area doctrine. 

 Because we agree with the trial court’s conclusion that plaintiff’s complaint alleged only 

that Walbridge was liable for his injuries under a common work area theory, and because 

plaintiff conceded at summary disposition that the theory was inapplicable to a determination of 

Walbridge’s liability, we conclude that the trial court did not err by granting Walbridge’s 

summary disposition motion on the basis that the doctrine was inapplicable to plaintiff’s claim. 

 Plaintiff also argues that, should this Court determine that he did not properly plead a 

claim of active negligence against Walbridge, he should be allowed to amend his complaint to 

allege a claim for active negligence against Walbridge. Plaintiff did not request leave to amend 
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his complaint in the trial court. An issue is preserved for appellate review if it is “raised before, 

and addressed and decided by, the trial court.” Hines v Volkswagen of America, Inc, 265 Mich 

App 432, 443; 695 Mich App 84 (2005). Thus, because plaintiff did not raise this issue in the 

lower court, it is unpreserved for appellate review. This Court generally reviews for an abuse of 

discretion a trial court’s decision whether to permit a party to amend its pleadings. In re Kostin, 

278 Mich App 47, 51; 748 NW2d 583 (2008). However, because this issue is unpreserved, our 

review is limited to plain error. Kloian v Schwartz, 272 Mich App 232, 242; 725 NW2d 671 

(2006). 

 Generally, leave to amend should be freely granted, and a trial court should only deny 

such leave “for particularized reasons such as undue delay, bad faith or dilatory motive, repeated 

failures to cure by amendments previously allowed, or futility.” In re Kostin, 278 Mich App at 

51-52. However, this general rule in favor of granting leave to amend does not address whether 

a trial court has an affirmative obligation, in the absence of a motion requesting an opportunity to 

amend, to offer a party such relief. 

 In Kloian, 272 Mich App at 241-242, the plaintiff presented an argument identical to that 

pursued by plaintiff in the instant case, i.e., that a trial court erred by denying him an opportunity 

to amend his complaint after granting summary disposition in the defendant’s favor. Addressing 

the unpreserved issue, this Court noted that, under MCR 2.116(I)(5), when a trial court 

determines that summary disposition is appropriate under MCR 2.116(C)(8)-(10), it “shall give 

the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the 

evidence then before the court shows that amendment would not be justified.” Kloian, 272 Mich 

App at 242, quoting MCR 2.116(I)(5). Because it was explicitly incorporated by reference, the 

Kloian Court also considered the rule set forth in MCR 2.118, which provides, in pertinent part, 

that “a party may amend a pleading only by leave of the court or by written consent of the 

adverse party.” Kloian, 272 Mich App at 242, quoting MCR 2.118(A)(2). Reading the two rules 

together, this Court concluded that “[b]ecause plaintiff did not seek leave of the court or obtain 

defendants’ written consent to amend his complaint as required by MCR 2.118(A)(2), 

MCR 2.116(I)(5) did not require the court to sua sponte offer plaintiff an opportunity to amend. 

Therefore, no plain error occurred.” Kloian, 272 Mich App at 242. 

 We find the reasoning of Kloain to be applicable here. Because plaintiff did not seek 

leave to amend in the trial court, or obtain consent for such amendment from Walbridge, the trial 

court did not commit plain error by failing to sua sponte offer plaintiff an opportunity to amend 

his complaint before dismissing the case. Further, under the circumstances presented, a request 

for leave to amend, had it been made, may properly have been denied based on undue delay, bad 

faith or dilatory motive. In re Kostin, 278 Mich App at 51-52. Plaintiff engaged in discovery for 

well over a year, during which time he had ample opportunity to discover that the facts gleaned 

from discovery did not support the theory alleged in his complaint. Assuming that plaintiff truly 

believed that he had pleaded a claim of active negligence, as he argued in the trial court and has 

argued on appeal, the filing of Walbridge’s motion for summary disposition, which was devoted 

solely to arguing against the applicability of the common work area doctrine, should have given 

plaintiff a strong reason to review his complaint for ambiguity. Walbridge’s counsel even 

referenced plaintiff’s failure to amend his complaint during oral argument at the motion hearing. 

Nonetheless, plaintiff never sought leave to amend his complaint to clarify the nature of his 

claim. The trial court took the matter under advisement and did not issue its opinion until nearly 
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four months had passed from the time that Walbridge first raised the issue in its motion for 

summary disposition. Clearly, plaintiff had ample opportunity to make a timely request to 

amend his complaint and failed to do so. Thus, we decline to remand plaintiff’s case to allow for 

the amendment of his complaint. 

 Affirmed. 

/s/ Kathleen Jansen 

/s/ Mark J. Cavanagh 

/s/ Mark T. Boonstra