-1- 

### 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Plaintiffs-Appellants, UNPUBLISHED December 13, 2016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 CONTRACTOR S, and UNNAMED SUBCONTRACTORS, LC No. 2014-001639-NI

Defendants-Appellees,

and

FORD MOTOR COMPANY,

Miscellaneous Intervenor.

Before: J ANSEN , P.J., and C AVANAGH and B OONSTRA , JJ.

P ER C URIAM

.

Plaintiff 1 appeals by right the trial court’s order granting defendant Wa lbridge Aldinger Company’s (Walbridge) motion for summary disposition in this ne gligence 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 involvin g

1 Plaintiff Sonya R. Jacobs, the wi fe of plaintiff Eddie L. Jaco bs, also appeals the trial court’s order by right. Because her loss of consortium claim is deriva tive and she was not involved in the events from which this matter arose, we will use the singul ar 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 inter vene in this matter. Instead , it appeared as a nonparty, for the sole-2- 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 ele vated 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 righ t 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 cow orkers 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 c ome 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 p roject are unclear. Walbridge was hired to provide “construction services,” which i ncluded the services of a construction manager and a safety engineer. Although the purch ase order incorporated by reference FMC’s global specifica tions, neither the purchase ord er nor the global specifications identified the role of a “construction manager” or a “safety en gineer.” The deposition testimony of several FMC and Walbridge empl oyees 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 ana lyses (PTAs). A PTA is a risk assessment tool that is used to plan the work that is typically required to be performed for high ri sk, non-routine activities, including demolition work, work performed at heights, and removal of exis ting equipment or building infrastructure. The person prep aring the PTA is required to de termine the work sequence of the task being analyzed, document each step of the sequence, identi fy 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 pl aintiff, 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 tha t he should work directly with partners when performing demolition.

Plaintiff filed a single-count c omplaint alleging that Walbrid ge was the “general contractor or the project contra ctor” for the job site. As suc h, Walbridge was “in charge of safety and demolition at the job site.” In his complaint, plai ntiff articulated Walbridge’s alleged duty and negligence as follows:

19. At all times relevant, Defendant Walbridge Aldinger Compan y, as General Contractor or Project Contractor, owed a duty to Mr. Ja cobs and to all other individuals working at the jobsite, to supervise the jobs ite activities being

purpose of obtaining a protective order with respect to a numbe r of confidential internal documents it produced in connection with this case.

3 A raceway is a square piece of ductwork that encloses wires ru nning between the overhead power source and the various e quipment or machines.-3- undertaken by all contract ors and subcontractors, [4] to ensure that they observed reasonable safety precautions when performing their activities, so as not to subject

other tradesmen to unreasonabl e risk of injury and harm.

20. Notwithstanding its duties in the premises, Defendant Walb ridge 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 jobsit e at any time where Walbridge Aldinger controlled, in whole or in part, that site;

b. [sic] failing to implement reasonable safety measures to pr event the raceway and conduit from causing aggravated injuries to electricians, inc luding Mr. Jacobs;

c. [sic] otherwise failing to mai ntain the jobsite in a reason ably 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 sum mary 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 proj ect or that it controlled plaint iff’s work—although it also noted that both concessions were contradicted by the evidence gleaned duri ng discovery. Nonetheless, Walbridge argued that, even if it had been the general contract or 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 in juries they may sustain on a construction project.” Thus, Walbridge argued, the only way fo r plaintiff to hold it liable for his injuries was by demonstrating that the “common work area doctri ne” 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 doct rine because he was not attempting

4 The parties agree that there were no unnamed contractors or su bcontractors working on the project during the relevant tim e frame. However, the unnamed c ontractor and subcontractor defendants were never dismissed from the lower court proceeding s and were identified as appellees in the claim of a ppeal filed in this matter.-4- to impose liability on Walbridge based on the negligence of thi rd-party subcontractors. Instead, plaintiff asserted that Walbridge was directly liable as a resu lt of its own active negligence. Specifically, plaintiff argued th at the FMC-Walbridge contract required Walbridge to review the PTAs to ensure that they documented anticipated hazards and ade quate safeguarding measures. Thus, by participating and contri buting to the creation of the PTAs, Walbridge assumed a common-law duty to perform that undertaking with reasonable car e. 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 dire ctly with partners when performing

demolition work.

In a written opinion and order, the trial court granted Walbri dge’s summary disposition motion. After setting forth the principles of the common work area doctrine and quoting several paragraphs from plaintiff’s co mplaint, the opinion and order re ad as follows:

Plaintiff’s complaint for negligence clearly sets forth a clai m based upon the common work area doctrine. Plaintiff alleges a duty of car e based upon defendant’s relationship to the project as the general contract or. Since plaintiff

does not contest defendant’s motion in relation to the common w ork area doctrine, and plaintiff’s complaint does not allege a theory of liability other than the common work area doctrine, summary disposition is appropria te. 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 comp laint. Plaintiff’s argument that defendant committed negligen ce by failing to perform contractual tasks is insufficient to establish a genuine issue of material fa ct on his claim as pled

. . . .

Based upon the reasons set forth above, defendant’s motion for summary disposition is GRANTED. In co mpliance with MCR 2.602(A)(3), th e 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 moti ons. 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 a ny 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 dispositi on under this rule, a court must consider the pleadings, a ffidavits, depositions, admission s, and other documentary evidence then filed in the action or submitted by the parties in the lig ht most favorable to the nonmoving party.” Bialick v Megan Mary, Inc , 286 Mich App 359, 362; 780 NW2d 599 (2009).-5- III. ANALYSIS

On appeal, plaintiff argues tha t the trial court erred because it granted Walbridge’s motion based on its conclusion that Walbridge was as a matter o f 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 o ut of the negligence of a thirdparty. We disagree.

“In Michigan the primary function of a pleading ‘is to give no tice of the nature of the claim or defense sufficient to permit the opposite party to tak e 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 onl y contain a “statement of the facts, without repetition, on which the pleader relies in stati ng 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 origina l).

In the context of claims arising from injuries on a constructi on jobsite, the general rule is that only a construction worker’s immediate employer is respons ible for the worker’s safety, and a general contractor will not typ ically be held liable for an i njury 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 exceptio n to this general rule and imposes liability on a general contractor for construction rela ted injuries if the plaintiff can demonstrate that “(1) the defenda nt contractor failed to take r easonable steps within its supervisory and coordinating aut hority (2) to guard against rea dily 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 wor ksite 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 gen eral 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 e ndanger the person or property of

others.” Id

.

Plaintiff conceded before the trial court, and concedes on app eal, 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 summ ary disposition to Walbridge i f, 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 b y procedural lab els and, instead, determine the gravamen of an action by reading the claim as a w hole. David v Sternberg , 272 Mich App 377, 381; 726 NW2d 89 (2006) (citations omitted). Pla intiff contends that the allegations in his complaint, when read as a whole, were suffic ient to give Walbridge notice that it was required to defend itself against a claim of active negl igence. We disagree.-6- In paragraph 19 of plaintiff’s complaint, plaintiff articulate d Walbridge’s alleged duty to supervise the jobsite activities by reference to its role as ge neral contractor or project contractor. In other words, plaintiff assert ed that Walbridge’s duty arose from its broad supervisory role for the project—the very duty that is at issue in a common work are a claim. Latham , 480 Mich at 112. By contrast, had plaintiff pleaded a claim for active neg ligence, Walbridge’s duty would have arisen from the specific tasks that it performed on the pr oject. Johnson , 261 Mich App at 722. Plaintiff’s complaint alleged no such specific tasks or a ny resulting duty.

Likewise, paragraph 20 of plaintiff’s complaint articulates ho w Walbridge allegedly breached the duties that had been alleged in paragraph 19 (whic h, again, related solely to supervision in the role of a gen eral contractor or project cont ractor), and thus also derives from the common work area doctrine. Under the doctrine, a general c ontractor breaches its duty of care by failing to “assure that reasonable steps within its sup ervisory and coordinating authority are taken to guard against read ily observable, avoidable danger s 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 oth er 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 exerc ise of its reasonable superviso ry duties in the premises.” Again, plaintiff’s allegation of negligen ce related to Walbridge’s all eged failure to exercise the oversight and supervisory authority of a g eneral contractor, rather than its negligent performance of any

tasks that it had undertaken t o perform on the construction sit e.

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 com plaint. Johnson , 261 Mich App at 723. The Court reasoned that the plaintiff’s complaint satisfi ed 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 tha t he believed the defendant had negligently performed, rather than relying solely on a generalized duty imposed under the common w ork 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 th at Walbridge performed in a negligent manner in violation of its common-law duty of care, i nstead relying on generalized allegations that would have put defendant on notice that plaint iff’s claim was one for vicarious liability only under the comm on work area doctrine.

Because we agree with the trial court’s conclusion that plaint iff’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 i napplicable 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 b asis that the doctrine was i napplicable to plaintiff’s claim.

Plaintiff also argues that, s hould this Court determine that h e did not properly plead a claim of active negligence against Walbridge, he should be allo wed to amend his complaint to allege a claim for active negligence against Walbridge. Plaint iff did not request leave to amend-7- his complaint in the trial court. An issue is preserved for ap pellate 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 Cour t generally reviews for an abuse of discretion a trial court’s decision whether to permit a party t o amend its pleadings. In re Kostin

, 278 Mich App 47, 51; 748 NW2d 583 (2008). However, because thi s 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 tria l 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 t o 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 co urt erred by denying him an opportunity to amend his complaint after granting summary disposition in th e defendant’s favor. Addressing the unpreserved issue, this C ourt 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 b e 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 p rovides, in pertinent part, that “a party may amend a pleading only by leave of the court o r by written consent of the adverse party.” Kloian , 272 Mich App at 242, quoting MCR 2.118(A)(2). Reading the tw o rules together, this Court concluded that “[b]ecause plaintiff did no t 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 p laintiff an opportunity to amend. Therefore, no plain e rror 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 a mendment from Walbridge, the trial court did not commit plain erro r by failing to sua sponte offer plaintiff an opportunity to amend his complaint before dismissing the case. Further, under the c ircumstances presented, a request for leave to amend, had it been made, may properly have been de nied based on undue delay, bad faith or dilatory motive. In re Kostin , 278 Mich App at 51-52. Plain tiff 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 compla int. Assuming that plaintiff truly believed that he had pleaded a claim of active negligence, as h e argued in the trial court and has argued on appeal, the filing of W albridge’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 or al argument at the motion hearing. Nonetheless, plaintiff never s ought leave to amend his complain t to clarify the nature of his

claim. The trial court took the matter under advisement and di d not issue its opinion until nearly-8- four months had passed from the time that Walbridge first raise d the issue in its motion for summary disposition. Clearly, pl aintiff had ample opportunity to make a timely request to amend his complaint and failed to do so. Thus, we decline to r emand plaintiff’s case to allow for the amendment of his complaint.

Affirmed.

/s/ Kathleen Jansen /s/ Mark J. Cavanagh

/s/ Mark T. Boonstra