Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED APRIL 14, 2008 DOUGLAS LATHAM, Plaintiff-Appellee,

v No. 132946 BARTON MALOW COMPANY, Defendant-Appellant.

BEFORE THE ENTIRE BENCH TAYLOR, C. J. In this case, we analyze what compri ses the element of “readily observable and avoidable dangers” in a lawsuit involving a “common work area” of a construction site. In Funk v Gen Motors Corp , 1 this Court established the common-work-area doctrine, which by its elemen ts is not a strict liability tort but is instead one that imposes liability only if th e general contractor itself fails to

1 Funk v Gen Motors Corp , 392 Mich 91; 220 NW2d 641 (1974), overruled in part on other grounds Hardy v Monsanto Enviro-Chem Sys, Inc , 414 Mich 29 (1982).prevent negligence. 2 Thus, the danger cannot be ju st the unavoidable, perilous nature of the site itself. Rather, the danger for which a dut y attaches is an avoidable danger to which a significant number of workers are exposed, such as—
in Funk and this case—failure to have fall-pr otection devices to protect workers from falling from a height on the project. The lower courts erred in ascertaining the relevant danger, basing their analyses on the conclusion that an elevated mezzanine, which at the tim e of the injury was nece ssarily without perimeter protection, itself created a hi gh degree of risk to a signi ficant number of workers. Instead, the proper da nger to focus on was working at dangerous heights without any protection from falls , and the proper analysis c oncerned whether a significant number of workers were exposed to this avoidable risk. Because both lower courts misapp rehended the appropriate danger to examine and decided the case on that erroneous basis, they also erred on the issue whether a significant number of workers would be exposed to the relevant peril. With the appropriate danger clarified, we reverse the judgment of the Court of Appeals and remand this case to the trial court for furt her proceedings consistent with this opinion.
I Plaintiff was a carpenter employed by B & H Construction to work on the construction of a new scho ol building. Defendant Barton Malow Company was

2 Funk, supra at 108.

2the construction manager on the project. 3 On the day of plain tiff’s injury, plaintiff and a coworker were moving sheets of drywall from a scissors lift to the mezzanine level of the project . They raised the lift to the height of the mezzanine and removed the cable barrier around the perimeter of the mezzanine, an action required to allow ingress. When they began carrying the first sheet of drywall from the lift to the m ezzanine, plaintiff was not weari ng a fall-protection harness, contrary to jobsite rules of which he was aware. As plaintiff wa s moving onto the mezzanine, the sheet of drywa ll cracked and plainti ff lost his balance, falling 13 to 17 feet to the floor. He was injured, bu t undisputedly would not have been had he been wearing the required protective harness. Plaintiff sued defendant for ne gligent performan ce of a contract 4 and negligence under the common-work-area doctrine, under which a general contractor may be held liable for injuri es caused by dangers in common work areas. The elements of such a claim are: (1) the defendant contractor failed to take reasonable steps within its supervisory and coordinating authority (2) to guard against readily observable an d avoidable dangers (3) that created a high degree of risk to a significant number of workers (4) in a common work area. 5 Plaintiff

3 For purposes of its summary dispositio n motion, defendant conceded that it served as general contractor for the project. Accordingl y, the trial court made no decision regarding that issue. 4 This claim was dismissed by the trial court and is not at issue here. 5 Ormsby v Capital Welding, Inc , 471 Mich 45, 57; 684 NW2d 320 (2004); Funk, supra at 104.

3asserted that defendant had failed to en sure that plaintiff w ould use proper fall protection while working on th e lift and the mezzanine, despite knowing that such protection was necessary when the perimeter cable was lowered. Because numerous other workers from other trades would be required to use the lift to access the mezzanine and lo wer the cable to en ter the mezzanine, plaintiff argued that the situation created a high degree of risk to a significant number of workers. Defendant moved for summary dispos ition under MCR 2.116(C)(10) (no genuine issue of material fact), arguing th at plaintiff had not shown the existence of a high degree of risk to a significant number of workers because the area was not accessible to a significant number of wo rkers at the time of the accident and because plaintiff’s indivi dual failure to use fall prot ection did not create a high degree of risk to a signifi cant number of workers. D efendant also argued that because plaintiff’s own employer was c ontractually responsible for its workers’ observing proper safety proce dures, plaintiff had not sh own that defendant failed to act reasonably. The trial court denied defendant ’s motion for summary disposition, concluding that plaintiff had sufficiently created a que stion of fact regarding the number of workers using the area. The court did not discuss the nature of the danger or whether there existe d a high degree of risk. The trial court determined that no dispute existed regarding wheth er a fall was readily avoidable if personal

4fall protection had been used and that defendant’s safety supervisor knew this. 6 While acknowledging that defendant ha d presented a serious challenge to plaintiff’s allegation of unreas onable action, the court held that this was properly a question for the jury. The Court of Appeals affirmed. 7 It agreed with the tr ial court that “plaintiff faced the danger of working on an elevated platform that did not have any permanent perimeter protection to protect him from falling while loading materials onto the mezzanine.” 8 It said that the trial court properly focused on the mezzanine’s lack of perimeter protection, not plaintiff’s failure to use personal fall protection, even though th e Court acknowledged that su ch protection would have prevented plaintiff’s injuri es. The Court determined that a significant number of workers from other trades would be exposed to the same hazard of havi ng to use the unprotected mezzanin e opening when entering and leaving the lift and disagreed with defendant that the number of workers presen t at the specific time of the injury was relevant. 9 The Court concluded that defendant had supervisory and controlling authority over th e jobsite and that the m ezzanine was a common work

6 Notably, in its discussi on of plaintiff’s active ne gligence claim, the trial court observed that “[p]lain tiff had tools of the trade av ailable to protect himself and [sic] which should have been provided by his empl oyer, or which he should have been trained to use by his employer.” 7 Latham v Barton Malow Co , unpublished opinion per curiam of the Court of Appeals, issued October 17, 2006 (Docket No. 264243). 8 Id. at 3. 9 Id

.

5area. 10 The Court held that the four el ements of the comm on-work-area doctrine were met because a question of fact exis ted regarding wheth er defendant took reasonable steps to guard against the danger. Defendant applied for leav e to appeal, and we or dered oral argument on whether to grant the application or take other action, directing the parties to address (1) whether th e proofs presented in the trial court were sufficient to satisfy the standard for general cont ractor liability set forth in Ormsby v Capital Welding,
Inc 11 and (2) whether defendant’s motion for summary dispos ition should have been granted. 12
II This Court reviews de novo a trial cour t’s grant or denial of a motion for summary disposition. 13 We review a motion brought under MCR 2.116(C)(10) by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. 14 Summary disposition is

10 Id. at 4. Because defenda nt had conceded for pu rposes of the motion hearing that the mezzanin e was a common work area, the trial court made no finding on the issue. 11 Ormsby, n 5 supra . 12 Latham v Bart on Malow Co , 477 Mich 1118 (2007). 13 Ormbsy, supra at 52. 14 Greene v A P Products, Ltd , 475 Mich 502, 507; 717 NW2d 855 (2006).

6appropriate if there is no genuine issue regarding any ma terial fact and the moving party is entitled to judgm ent as a matter of law. 15
III
In Funk , this Court, exercising its co mmon-law authority, expanded the duties of those ultimately in control of a construction project worksite (most often the general contractor) by crea ting the common-work-area doctr ine. This doctrine was described as follows: We regard it to be part of the business of a general contractor to assure that reasonable step s within its supervisory and coordinating author ity are taken to guard ag ainst readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen. [16] The doctrine is understood as an excep tion to the general rule that, in the absence of its own active ne gligence, a general contractor is not liable for the negligence of a subcontractor or a subcontractor’s employee 17 and that the immediate employer of a construction work er is responsible for the worker’s job safety. 18 Essentially, the rationale behind the Funk doctrine is that the law should be such as to discourage those in control of the worksite from ignoring or being careless about unsafe working conditions resulting fro m the negligence of

15 Id. 16 Id . at 104. 17 Ormsby, supra at 53. 18 Funk, supra at 102.

7subcontractors or the subcont ractors’ employees. This Co urt explored the history of the doctrine in depth in Ghaffari v Turner Constr Co , 19 in which we observed that “‘in many cases only the general contract or is in a position to coordinate work or provide expensive safety feat ures that protect employees of many or all of the subcontractors.’” 20 Subcontractors and their employ ees, even if they are aware of hazards, may be unable to rectif y the situation themselves or to compel others to do so. 21 In cases in which normal safet y precautions can reduce a hazardous condition so that it no longer creates a high degree of ri sk to workers, the general contractor’s duty is to take reasonable st eps to ensure that t hose safety precautions are taken. 22 In such cases, in order to state a cause of action against a general contractor under the common-work-area doctrine, the plaintiff must show that the general contractor’s failure to reasonabl y ensure that work ers were observing safety procedures resulted in a significan t number of workers being exposed to a high degree of risk in a common work area. The fundamental question presented in this case, in which the general contractor was in control of the worksite, is: What wa s the danger creating a high degree of risk that is the focus of the general contractor’s responsibility? Funk itself provides assistance in answering this question. There, this Court analyzed a

19 Ghaffari v Turner Constr Co, 473 Mich 16; 699 NW2d 687 (2005). 20 Id . at 20, quoting Funk, supra at 104. 21 Funk, supra at 104. 22 Ormsby, supra at 54, quoting Funk, supra at 106-107.

8similar common-work-area fall. In Funk , as here, the plain tiff would not have been injured had he worn a fall-protection device or ha d netting been provided. This Court agreed with the Funk plaintiff that the defendants exposed him to avoidable injury by allowing subcontractors to order the men to work at dangerous he ights without any protection from falls in a job environment in which laborers were expected to complete their assigned tasks withou t regard to the absence of safety equipment guarding against injury in the event of a mishap. [23] The Court in Funk was clear that the danger at issue was not the height itself, but the fact that the men were required to wo rk “at dangerous heights without any protection from falls .” To hold that the unavoidable height itself was a danger sufficient to give rise to a dut y would essentially impose on a general contractor strict liability for any injury res ulting from a fall fr om an elevated common work area. This has never been th e law. Moreover, because working at heights is generally an unavoidable condition of construction work, it cannot, by itself, be the avoidable danger Funk described. Hazards, including dangerous heights, are commonplace in construction work sites. In some situations, a general contractor may be able to remove a p articular hazard, but general contractors simply cannot remove all potential hazard s from a construction workplace. If a hazard cannot be removed, the general co ntractor can take reasonable steps to require workers to use safety equipment and procedures, there by largely reducing or eliminating the risk of harm in many situations.

23 Funk, supra at 100.

9Accordingly, in this case, as in Funk , the danger that creat ed a high degree of risk is correctly characterized as the danger of working at hei ghts without fall

protection equipment . It is this danger to whic h a significant number of workers must be exposed in order for a claim to exist. 24
IV With the relevant danger correctly perceived, the erro r of the lower courts’ analyses becomes apparent. While defe ndant’s motion for summary disposition identified the correct danger a nd further raised the issue th at plaintiff’s own failure to wear a fall-protection device did not create a high degree of risk to a significant number of workers, the trial court and the Court of Appeals erred by misidentifying the danger and inevitably erred in th e subsequent analysis regarding how many other workers were exposed to the risk. 25 We therefore

24 The dissent’s formula tion of the common-work-area doctrine is hard to understand. As we grasp it, its central fa iling is that the dissent fails to concede that Funk applies only to avoidable dangers. Heights on construc tion projects, we conclude, as did the Funk Court, are not a voidable. Thus, heights are not by themselves hazards addressed by Funk . We have never said what fall-protection gear is needed at heights. The questi on is whether fall protection was available and whether the general contractor took reasonable step s to see that it was used. The dissent appears to assert that the i ssue is, however, one of strict liability for the general contractor, not an issue of ta king reasonable steps. In short, under the dissent’s analysis, Funk would be not a negligence rule, as it was designed to be, but would instead be a strict-liability rule. 25 Although we focus here on only one of the common-work-area elements, we note that plaintiff must satisfy all the elements that give ri se to a duty owed by a general contractor. Funk also requires plaintiff to show that the failure of a significant number of workers to take s afety precautions was rea dily observable and that the failure was avoidable. Finally , the plaintiff must, of course, also show (continued...)

10reverse the judgment of the Court of Ap peals and remand this case to the trial court for further proceedings consistent with this opinion.

Clifford W. Taylor Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

(...continued) that the defendant failed to take reasonable steps to en sure compliance and that the danger existed in a common work area.

11v S T A T E O F M I C H I G A N SUPREME COURT

DOUGLAS LATHAM, Plaintiff-Appellee,
No. 132946 BARTON MALOW COMPANY, Defendant-Appellant.

KELLY, J. ( dissenting ). With its opinion in this case, the majority injects further confusion into the area of negligence law. It does so by defi ning the danger that wa s present in this case as “working at heights with out fall-protection equipment.” 1 This definition conflates the questions posed by the firs t two elements of the common-work-area doctrine: (1) whether the defendant contractor took r easonable steps within its supervisory and coordinatin g authority and (2) whet her the danger was readily observable and avoidable. 2

1 Ante at 10. 2 In Ormsby v Capita l Welding, Inc , 471 Mich 45, 54; 6 84 NW2d 320 (2004), the Court listed the four elements of the common-work-area doctrine: (1) the general contractor failed to take reasonable steps within its supervisory and coordinating authority (2) to guard against readily observ able and avoidable dangers (3) that created a high degree of risk to a significant nu mber of workers (4) in a common work area.The majority quotes with approval defendant’s argum ent that “plaintiff’s own failure to wear a fall-protection device did not create a high deg ree of risk to a significant number of workers . . . .” 3 This presumes, with out explanation, that wearing personal fall protection was the only reasonable way to av oid the danger of falling from the mezzanine. The majority makes the in jured worker’s failure to wear personal protection dispositive under the common-work-area doctrine. It does so even though, und er our system of comparative negl igence, a worker’s negligence is separate from the negligen ce of the general contractor. 4 The majority’s resolution of this cas e may cause unexpected undesirable repercussions in future negligence cases. This is because it divides the question whether reasonable measures were taken to protect against a foreseeable risk into (1) whether a risk existed in the first place and (2) whether plaintiff failed to protect himself against it. The Cour t should avoid distorting the law of negligence in this fashion.
I As a rule, general contractors are not lia ble for the negligen ce of inde pendent subcontractors and their employees. 5 In Funk v Gen Motors Corp , 6 the Court set

3 Ante at 10. 4 In Hardy v Monsanto Enviro-Chem Sys, Inc , 414 Mich 29, 39; 323 NW2d 270 (1982), the Court held that a general contractor could not avoid liability “‘by pointing to the concurrent negligence of the injured worker . . . .’” (Citation omitted.) 5 Ormsby, 471 Mich at 53.

2forth the common-work-area exceptio n to this rule. The majo rity bases its rationale on a passage from Funk in which the Court summarized the Funk plaintiff’s argument that the defendants had exposed him to avoidable injury by allowing subcontractors to order the men to work at dangerous he ights without any protection from falls in a job environment in which laborers were expected to complete their assigned tasks withou t regard to the absence of safety equipment guarding against injury in the event of a mishap. [ 7 ] Using this passage, the majority concludes: The Court in Funk was clear that the danger at issue was not the height itself, but the fact that the men were required to work “at dangerous heights without any protec tion from falls.” To hold that the unavoidable height itself was a da nger sufficient to give rise to a duty would essentially im pose on a general contractor strict liability for any injury resulting from a fa ll from an elevated common work area. This has never been the law. Moreover, because working at heights is generally an unavoidabl e condition of work, it cannot, by itself, be the avoidable danger Funk described. H azards, including dangerous heights, are commonpl ace in construction worksites. [8] The majority misread s the passage from Funk in several respects. First, the Court in Funk specifically referred to the heights as “dangerous heights.” To say that elevations that create a foreseeable injury from falli ng are not inherently dangerous defies common sense. If such elevations were not inherently dangerous, there would be no duty to protect the pe ople who work there.

(...continued) 6 Funk v Gen Motors Corp , 392 Mich 91; 220 NW2d 641 (1974), overruled in part on other grounds by Hardy

. 7 Id. at 100. 8 Ante at 9.

3Second, according to Funk , while dangerous heights on construction projects may be unavoidable, injury from a fall is avoidable if reasonable measures are taken to prevent it. Funk recognized that reasonable m easures can be taken to prevent injuries from falls. That recognition places the common-work-area doctrine in the negligen ce regime rather th an the strict-liability regime. 9 The passage on which the ma jority relies faulted th e general contractor for allowing subcontractors to send their me n to elevated locations “without any protection from falls” and in “ the absence of safety equipment guarding against

9 In her dissent in Funk , Justice Coleman reviewed Michigan law on inherently dangerous activities and came to the following conclusion: The Michigan cases are uniform in holding that generally an employer is not liable for the torts of an independent contractor. An exception has been de veloped for activities or tasks which reasonably can be foreseen as dangerous to third parties, with a few cases extending the exception to employees. These activities include those dangerous despite use of all reasonable care and those dangerous unless reasonable care is exerci sed . . . . It is clear that this doctrine imposes a form of strict liability upon the owner or employer of the independent contract or. However, such liability is not absolute. [ Id . at 135 (Coleman, J. dissenting).] Justice Coleman correctly recognized that some dangerous activities cannot be made safe, whereas others can be if reasonable care is exercised. She incorrectly concluded, however, that e ither type of dang er exposes a general contractor to strict liab ility. The majority in Funk held that workin g on elevations at construction sites can be made s afe through reasonabl e precautions. In recognizing the various reasona ble precautions that could be taken, the majority imposed on a general contract or a duty of reas onable care rather than an absolute duty to make safe. In Ormsby , 471 Mich at 56, the Court noted that the common-work-area doctrine had not resulted in th e imposition of strict liability on general contractors, despite Justice Coleman’s prediction.

4injury in the ev ent of a mishap.” 10 The passage essentially shows that the general contractor did not take reasona ble steps to protect those who worked at elevations. The various reasonable steps identified in Funk were to make provisions for “suspending nets, scaffolding, bucket cranes, safety belts or harnesses.” 11 Thus, Funk does not compel the conclusion the ma jority reaches that personal safety protection is the only way to guard against the risk of falling from heights. Nor does Funk redefine the danger posed by working at heights as the danger of confronting heights without personal fall prot ection, as the majority does. The majority expressly redefines danger. Implicitly, however, it presumes that the general contractor to ok reasonable steps to protect workers on the job from danger when it opines that a general contractor may be able to remove a particular hazard, but general contractors simply cannot remove all potential hazards from a construction workplace. If a hazard cannot be removed, the general contractor can take reasonable steps to require workers to use safety equipment an d procedures, thereby largely reducing or eliminating the risk of resu lting harm in many situations. [12] This statement reveals the majority’s underlying premis e that, unlike the general contractor in Funk , the general contractor here can not be faulted, given that it required workers to use safety equipment a nd procedures. The majority also implies that the sole cause of plaintiff’s fall was plaint iff’s own negligence in not

10 Funk , 392 Mich at 100 (emphasis added). 11 Id . at 103. 12 Ante at 9 (emphasis added).

5wearing protective fall gear. If the majority believes th at the general contractor took reasonable measures to prevent falls fro m the mezzanine, it should say so. There is no need to redefine the dang er in order to reach this result.
II Plaintiff’s evidence show s that, after the iron work ers erected the steel and the cement workers poured the floor, workers from the following trades needed access to the mezzanine: carpenters, electric ians, plumbers, painters, and a crew to install heating, ventilation, and coolin g equipment. It was estimated that electricians, plumbers, and carpenters w ould use the mezzanine on numerous days, and that workers from several trades would work there at the same time. On the day of plaintiff’s fall, more than 30 workers were on the co nstruction site, but plaintiff and his coworker were the onl y ones working on the mezzanine. Plaintiff and his coworker attempted to bring drywall to the mezzanine using a 3-foot-wide scissor lift. 13 The 6-foot-long safety cable blocking the opening onto

13 A scissor lift is used to lift work ers, materials, and equipment to elevations. It is attached to a moving piece of equipment and has a work platform.

(continued...)

6the mezzanine had to be eased in order for them to bring up the drywall. With the safety cable lowered, 3 feet of open space were left unprotected. On their first run, plaintiff’s coworker stepped from the sc issor lift onto the mezzanine holding one end of a sheet of drywall. Plaintiff came behind him. When plaintiff stepped onto the mezzanine, he lost his balance. The drywall that he was holding broke, and he fell through the unprotected space to the level below. There should be no dispute that the mezzanine was dangero usly high, given that as it was 12 to 17 feet above the lo wer level. Because it was more than 6 feet high, fall protection was required for th e workers’ safety. The lower courts correctly noted that workers from several trades had to work at the mezzanine level

(...continued) In the picture submitted by plaintiff, the sc issor lift appears on the floor to the left of the mezzanine.

7at the same time. Hence, an issue of fact was created co ncerning whether the mezzanine was a common area. Various subc ontractors needed to get onto the mezzanine numerous times over several days in order to work and load materials and equipment. By a r ough estimate, a dozen wo rkers, including carpenters, electricians, plumbers, painters, and at least four people to load heating, ventilation, and cooling equipment needed to get onto the mezzanine. Aft er the wooden frame for the drywall was put in , there were only tw o ways to reach the mezzanine: by ladder and by scissor lift. All these wo rkers faced the danger of falling from the mezzanine while loading materi als or equipment. Accord ingly, an issue of fact arose about whether a significant numb er of workers employed by various subcontractors were exposed to the same risk. There is no dispute that the safety cable did not provide sufficient protection, given that it had to be lo wered to enable a ccess to the mezzanine. One of the questions that plaintiff raised is whether any other type of perimeter protection was feasible. In response to defendant’s “S afety Hazard Notification,” plaintiff’s employer indicated that a wood-framed stru cture with a removal gate should have been used. The structure could have pr otected people from falling through the open space left after the cable was lowered. It is uncl ear whether such protection was feasible. Thus, the Court of Appeals correctly decided that a question of fact existed about the ava ilability of adequate perimeter protection. Defendant argues that the only feasible safety pr otection was the use of a personal fall-protection device, such as a double-lanyard harness syst em hooking

8the worker to an anchorage poin t. It is undisputed that plaintiff was not wearing such a device. Plaintiff’s supervisor e xpressed doubt about a lanyard, saying that, if plaintiff had worn one, he could not have stepped off the scissor lift onto the mezzanine. Assuming that a personal fall-protecti on device could have been used, the question arises whether defendant took re asonable steps within its supervisory authority to require such a device. The project-manual provisi ons for defendant’s “On-Site Project Safety and Loss Control Program” state that each subcontractor “will supply the proper equipment, take th e necessary precautions to maintain the equipment according to current regulat ions and specifica tions, and accept responsibility to ensure that the necessary safety equipm ent is supplied and used when required.” The manual further states : “The use of safety belts/harnesses and lanyards securely attached to an approve d anchorage point when working from unprotected high places is mandatory.” Defendant’s manual makes clear that defendant required that personal fall prot ection be used when no other protection was available. It shifted to the subcon tractors the responsibility for providing all such safety equipment and ensuring its use.
In Funk , the Court observed that, from an economic and practical standpoint, placing the responsibility fo r work safety in common areas on the general contractor will “render it more likel y that the various subcontractors . . . will implement or that the general contract or will himself implement the necessary

9precautions and provide th e necessary safety equipment in those areas.” 14 It is doubtful that, under Funk , a general contractor can entirely absolve itself of liability by shifting to its subcontract ors all responsibility for implementing workplace safety and for providing s afety equipment. Furthermore, a question of fact exists concerni ng whether, under his supervisory authority, defendant’s constr uction supervisor s hould have been expected to enforce defendant’s safety po licy. The construction supervisor knew that plaintiff and his cowork er planned to use the scisso r lift to hoist drywall onto the mezzanine. He also knew that they needed to lower the safety cable to do so. The question is whether the co nstruction supervisor should have inquired about the safety protection that the carpenters pla nned to use when the safety cable was down. Defendant argues that its s upervisor had no authority to tell the workers how to do their jobs. That is not the issue. Rather, the i ssue is whether the construction supervisor had authority to supervise th e workers’ safety and to enforce the general contractor’s safety policy. Defendant also argues that a general contractor cannot be expected to monitor whether each worker on the jobsite wears individual safety protection. Were such monitoring at issue, defendant might be correct because of the burden it would place on the general cont ractor. But, on the facts of this case, defendant’s

14 Funk , 392 Mich at 104.

10construction supervisor was in direct pe rsonal contact with plaintiff and his coworker. He spoke with them persona lly as they prepared to ascend to the mezzanine. It might not be unreasonable to expect the supervisor to inquire after their safety under the circumstances. More importantly, such an expectation is hardly unreasonable in light of defendant’s safety policy. Its safety-and-loss-control program makes a difference only if it is enforced. Certainly, a safet y policy can be enfo rced by issuing a citation to a subcontract or after an injury occurs, which is what defenda nt did here. But it is reasonable to expect that a general contractor will enforce its own policy to prevent noncompliance and to avoid injury befo re it occurs.
III I would affirm the lower courts’ judg ments denying defendant’s motion for summary disposition and woul d remand the case to the trial court for further proceedings. This resolution of the cas e would not be tant amount to imposing strict liability on the gen eral contractor. On the contrary, it acknowledges that reasonable minds can differ about the sufficiency of the step s the general contractor took in this case. Certainl y, a jury could find that the general contractor took reasonable steps, but I would not make that determination as a matter of law. It is properly an issue for the trier of fact to resolve.

Marilyn Kelly Michael F. Cavanagh

11