NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0521n.06 Nos. 12-1624/12-1641 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT MI CHEL L E RI CHTER , Administratrix of the Estate of Micha el D. Richter, D ece ased Plaintiff – Appellant Cross - Appe llee,

v. AMERI CAN AGGREGA TES CORP ORATI ON, Def endant – Appe llee Cross - Appe llant, and PROCES S MACHI

NERY, I NCORPORATED, Def endant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED S TATES DI STRI CT COURT FOR T H E E A S T E R N D IS T R IC T O F MI CHI GAN

Be fore : MOORE and STRANCH, Circuit J udg es; HOOD , District J udg e * JANE B. STRANCH , Circuit J udg e. Michae l Richter died in a mine construction acc ident

on April 6, 1991, while wo rki ng for a subcontrac tor, Wheatland Machine & Welding, I nc. (“WMWI ”). Richter’s wife, Michelle Richter, filed a wrong ful-death suit in fede ral court on behalf of his estate. She broug ht suit ag ainst the g ener al contra ctor of the projec t, Process Machine ry , I nc., (“PMI ”), and the owner of the mine, Americ an Ag g reg ates Corporation (“A AC”), alleg ing various Michig an state-law neg lige nce claims. PMI enter ed into a consent judgme nt and is no longe r a defe ndant in the case . We now consider wh et h er Ms. Richter may continue to pursue her claim

The Honorable J oseph Martin Hood, Un i t ed S t ates District J udg e for the Eastern District * of Ke ntucky , sitti ng by

desig nation.ag ainst AAC. Despite an extraordinary delay in the prosec ution of the case , and a shift in Michig an

job-site tort law, we conclude that she may

. After PMI ’s 1996 consent judgme nt, Ms. Richter’s action ag ainst AAC was suspende d for

over a deca de as PMI pursued indemnific ation from var ious parties. When Ms. Richter’s c ounsel
eventua lly re- initiated the proce eding s, AAC moved to dismiss the suit for failure to prosec ute and moved for summary judgme nt on the merits. The district co urt denied the failure -to-prose cute motion, but ultimately g rante d summary judgme nt to AAC on the basis of an intervening decision in Ormsby v. Capital W

elding, Inc. , 684 N.W.2d 320 (Mich. 2004). Ms. Richter appea led, and AAC then cr oss-appe aled the de nial of its failure- to-prosec ute motion. For the rea sons outlined below, we conclude that the district court did not abuse its discretion in deny ing AAC’s failure -to-prose cute motion. On the merits, howeve r, a g enuine dispute of materia l fac t ex i s t s as to whether AAC may be liable for the neg lige nce of its g ener al contra ctor under Michig an’s “common-w ork-a rea ” doctrine. There fore , we REVERSE the district court’s g rant of summary judgme nt and REMAND the case for further proce eding s consistent with this opinion. I. F acts The district court rec ounted the fac ts of the case in a 1995 order g ranting in part and deny ing in part AAC’s initial motion for summary judgme nt: Def endant AAC hired Def

endant [P MI ] to desig n and ere ct materia ls nece ssary to construct an a dvance d automated 400TPH sand and g rave l pla nt. The work included the assembly of a new 1200 Ft. convey er and was to be perf ormed at a site owned by AAC in Romeo, Michig an. PMI enter ed into two subcontrac ts to complete the job – one with Wheatland Machine & W el d ing, I nc. (“WMWI ”) to perf orm the hands-on construction and assembly work, and the other with Gre enville Manufa cturing Works (“G MW”), a wholly owned subsidiary of AAC, to perf orm the

2elec trical port i o n of the contra ct. On Saturday , April 6, 1991, WMW I employ ees

attempted to pull a long convey er belt onto the convey or fra me, employ ing a rig g ing method. Plaintiff’s dece dent, Michae l Richter, a WMW I emplo y ee , stood on the convey or’s eleva ted walkwa y , adjac ent to the sheave block portion of the rig g ing sy stem. His job was to signa l the end loader opera tor who was pulling the cable. 1 During the convey or belt pull, a one-quarte r i nch wire cord, w hich was a ttached to the “come along ” used in the rig g ing sy stem, snapped. This cause d the sheave block to strike Michae l Richter in the head, partially deca pitating him and killing him instantly

. The acc ident was appar ently cause d by the one-qua rter inch cord attache d to the come- along , which was crimped in a number of place s. Howeve r, the Gre enlee hook sheave used in the rig g ing proce ss, which had been loaned to WMW I by GMW, was also inappropria tely used. The sheave was intended for use with elec trical cable , not wire cord. Neither AAC nor GMW e mploy ees wer e prese nt on the Saturday of Michae l Richte r’s acc ident. There was, howeve r, an AAC supervisor continuously on the job site Monday s throug h Fr iday s, and he was there on the prec eding Fr iday , when the instant rig g ing w as set up. Nov. 22, 1995 Mem. Op. 1–2, App. 309–10. On the Saturday of the acc ident, WMW I worke rs wer e schedule d to work on the second half of the belt pull for a larg e section of the convey or. PMI ’s field repr esenta tive, Way ne Ritchie, had
set up to beg in the belt pull on Tuesday of that wee k. See Sny der Dep. 53, R. 174-1 at Pag eI D# 1466; Ritchie Dep., App. 418–23. Workers descr ibed the initial task as pulling the bottom half of the l arg e belt into place on the c onvey or structure . I t is not entirely clea r whe ther some pulling of the top half of the belt occur red on Fr iday or whether on that day only the set up of the pulley sy stem

was completed. See Hooper Dep. 236, at Pag eI D# 2127; Sny der Dep. 44, 50, R. 174-1, at Pag eI D# 1457, 1463. On Saturday , work was briefly delay ed due t o weather. Richter’s acc ident then

occur red a s the WMW I employ ees w orked on pulling the top ha lf of the be lt into pl ace . After the

A loader is a ty

pe of trac tor or bulldoz er commonly used on construction sites. The worke rs 1 in this case had attache d a cable or wire to the loader and using machine to pull the belt up onto the convey or fr ame. 3acc ident, the belt pull was suspended. Severa l day s later, WMW I and PMI re- initiated and finished

the task they had been working on that Satu rd ay . See Sny der Dep. 98–100, R. 174-1 at Pag eI D# 1511–13; Id. at 275–76, 295–96, R. 176-1 at Pag eI D# 1748–49, 1768–69; Mullins Dep. 89, 132, R. 172-2 at Pag eI D #1142, 1185; West Dep. 93–94, R. 177-1 at Pag eI D #1908–09. There afte r, the team proce eded with simil ar pulls for differ ent belt sections of the same convey or. See Ritchie Dep., App. 435–36. Acc ording to WMW I worke rs, AAC—the owner —and PMI

—the g ener al contra ctor—both took leade rship roles on the job site. J oe Enochs, the repr esenta t i ve of AAC, was “the job site eng ineer .” Hooper Dep. 169–70, App. 229–30. Enochs revie wed the safe ty proce dures of t h e 2 subcontrac tors—for ex ample, telli ng WMW I worke rs t hat t hey had to wea r hardhats while on t he job. See Ritch i e De p . 75, App. 240. Enochs would monitor tasks and ask worke rs to opera te equipment in a differ ent manner , see Hooper Dep. 169–70, App. 229–30, and was the individual on the site who would approve or not approve a subcontrac tor’s work, see Ritchie Dep. 75, App. 240, 396. Var ious worke rs observe d Way ne Ritchie, the field repr esenta tive for PMI , p re p ar ing the rig g ing for the belt pull ear lier in the wee k. See AAC Offic e Mem., R. 179-3 at Pag eI D #2110–11; Hooper Dep. 222–24, R. 179-4 at Pag eI D #2120–22. And, after the acc ident, Ritchie worke d on 3

There is some confusion in the rec ord as to whether the AAC job-site eng ineer was named 2 J oe Enochs or J oe Ennis. Her e, forc ed to choose one or the other without further g uidance , we will ref er to him as Enoc hs. Ritchie denies setting up the rig g ing for the belt pull, but, for the purpose of revie wing this 3 motion for summary judgme nt, we revie w the fac ts in t h e light most favor able to the nonmoving party

. Ms. Richte r provided testimony from various source s to support her contention that Ritchie “devise d” the belt-pull rig g ing, see Appellant’s Br. 6–7, and Ritchie testified that the m ethod was in plain sight whe re he could see it if he had looked. Ritchie De p., App. 426. 4repa iring the g as-powe red winch, a device intended for belt-pulling that had been out of service and

which was subsequently used to complete the rema ining belt pulls. Sny der Dep. 275–76, R. 179-5
at Pag eI D #2131–32. WMW I ’s owner , Rod M u l l i n s , testified that PMI “wa nted to control ever

y

move . . . . We could not start any thing or finish any

thing without them coming and try ing to tell us how to do it.” Mullins Dep. 106, R. 179-15 at Pag eI D #2324. On the day of the acc ident, howeve r, neither Enochs nor Ritchie was on the job site. I n fac t, the three PMI employ ees, four AAC employ ees, and seven of the GMW employ ees working on the projec t wer e not prese nt. Only six WMW I employ ees—Richter , Michae l Sny der, Gar rett Hooper , 4 Chris J ackson, Hea ly Bur

kes, and Rick West—out of the thirteen WMW I employ ees working on the projec t wer e in or around the are a of the acc ident when it occur red. See MSHA Report 5–6, R. 179- 11 at Pag eI D #2190–91. Mullins was also on the job site, but not in the are a of the acc ident, at the time that it occurre d. Mullins Dep. 72, R. 172-1 at Pag eI D #1125. When the acc ident happene d, Sny der was opera ting the front-e nd loader that was providing the power to pull the cable throug h the rig g ing sy stem. Richter, Hooper , and Bur kes wer e standing

on the “catwalk” eleva ted walkway linin g t he convey or. The catwalk provided the onl y acc ess t o

cer tain sections of the convey or, and there is evidenc e that on other day s GMW employ ees used the
catwa lk to work on the convey or’s elec trical sy stems and that employ ees of PMI and AAC also used the catwa lk to inspect the opera tion and fix problems. See Ritchie Dep., App. 378–81, 383. When the first half of the belt pull had been completed ear lier in the wee k, the convey or are a was not

Ritchie testified that, including himself there wer e three PMI employ ees who worke d on site 4 at t he pro j ec t , t h at there wer e seven GMW employ ees working on the project, and that four AAC employ ees w orked on the site at times. See Ritchie Dep., App. 384–88, 395–95, 404. 5blocked off in any way , nor did Ritchie g ive any instructions to subcontrac tor employ ees to stay out

of the vicinity

. Id. at 427. After the acc ident, the fede ral Mine Safety and Hea lth Administration (“MSHA” ) car ried out

an investiga tion and published an acc ident repor t. The repor

t conclude d that the direc t cause of the

acc ident was the failure of the come- along wire rope that had been used as part of the rig g ing sy stem. Prior to the acc ident, the cable h ad been “ser iously damag ed” by other uses during the rig g ing chang es, and tha t damag e had c ontributed to its failure. The come- along also was inappr opriately used, as it was a “hand opera ted tool of insufficient streng th for use with a machine capa ble [of] brea king any and all parts of the device .” MSHA Report, R. 179-11 at Pag eI D #2199. The front-e nd loader used to pull throug h the rig g ing sy stem “could produce a forc e sufficie nt to destroy any part of the rig g ing used.” Id. The MSHA issued a citation, finding that the rig g ing “had been improperly assembled.” Id. at 8, Pag eI D #2193. II. P roce dural h istory Ms. Richter filed her fede ral complaint on April 1, 1994. She alleg ed that AAC was liable for neg lige nce as the owner of the g rave l-mine projec t and that PMI was liable for neg lige nce as the g ener al contra ctor. AAC filed an initial motion for summary judgme nt, r ely ing on the rule that an

owner g ener ally is not liable for the neg lige nce of an independe nt contra ctor. I n response, Ms. Richter defe nded her action with ref ere nce to two established exceptions to that rule: (1) the inhere ntly dang erous activities exception and (2) what was then ref err ed to as the “re tained control” exception. The district court narr owed the clai m s at issue in a November 22, 1995 order

. The court considere d and reje cted the application of the inhere ntly dang erous activities exception to the fac ts

6of the case , finding that the risk was cre ated by improper use of equipment and was not inhere nt in

the nature of the work. Th e co u rt al so deter mined that Ms. Richter had waived other arg uments p l au sibly alleg ed in the complaint—such as claims based on a “Safe Place to Work” theory or a failure -to-wa

rn premises-liability theory

. But there was, the court found, sufficie nt evidenc e to raise

a g enuine dispute as to whether AAC had reta ined suffic i en t control of the construction site to invoke the then-de nominated “re tained co ntrol” exception to owner nonliability

. AAC

unsucce ssfully

moved for r econside ration. The long delay beg an the following y ear . I n late 1996, PMI enter ed a consent judgme nt for $1,000,000 with Ms. Richter. The district court subsequently stay ed further action on Ms. Richter’s “re tained control” cause of action ag ainst AAC as PMI pursued an indemnification suit in Kentucky
state court ag ainst WMW I and its insurers. PMI and Ms. Richter fi l ed a notice of satisfac tion of judgme nt with the fede ral district court on Marc h 26, 2004, but PMI ’s ultimate l y u n s u cc essful indemnification litigation was not final until October 24, 2007. On Fe bruar y 14, 2008, counsel for Ms. Richter contac ted counsel for AAC to advise that she planned to re- commence her suit ag ainst AAC. Sorting out the eff ects of various intervening corpo rate transac tions cause d further delay

. After the case was stay ed, AAC was broken up a nd sold by

its pa rent corpor ation, CSR

. The bulk of AAC was sold to another corpor ation, Martin Marietta Materia ls, I nc. (“Ma rtin Marietta” ). The portion of AAC that included the Michig an opera tions was sold to a third corpor ation, L evy I ndiana Slag Co. (“L ev y ”) , an d t h en later CSR itself was acquir ed by a fourth corpor ation, CEMEX. I n addition, the g ener al-liabilit y i nsurer orig inally responsible for defe nding AAC in the Richter litigation bec ame insolvent and w as liquidated in 2003. On F ebrua ry 24, 2010, AAC (and Ma rtin

7Marietta) reque sted permission to file a third-par ty complaint in the Richter litigation, alleg ing that AAC should be defende d and indemnif i ed b y C S R , CEMEX, and L evy pursuant to lang uag e in a stock-purc hase ag ree ment. A y ear and a half later, the third-par ty complaint was dismiss ed and the district court ente red a

stipulated order

requiring the re lief AAC had soug ht. On October 19, 2011, AAC filed the motion that led to the summary judgme nt decision we

now revie w. AAC reque sted that M s . R i chter ’s suit be dismiss ed for failure to prosec ute under FRCP 41(b); moved for FRCP 60(b) relief from the court’s 1996 judgme nt deny ing rec onsideration of its initial summary -judg ment motion; and reque sted that summary judgme nt now be g rante d on the “re tained control” theory —on the basis of the intervening Michig an Supreme Court decision in Ormsby , 684 N.W.2d 320. Under Ormsby , the theory of reta ined control can only result in liability if the plaintiff also meets all four prong s of the “common work are a” test derive d from Funk v. Gen. Motors Corp., 220 N.W.2d 641, 646 (Mich. 1974). AAC arg ued that Ms. Richter could not meet all four pr ong s of that test. The district court g rante d summary judgme nt to AAC. The court declined to dismiss the suit for failure to prosec ute, finding no evidenc e that Plaintiff had acte d in bad faith or been dilatory and

no evidenc e of prejudice to defe ndant. But the court g rante d AAC’s Rule 60(b)( 6) motion, awa rding summary judgme nt to and ag ree ing with AAC that Ms. Richter could not meet the third and fourth prong s of the common-w ork-a rea test. On appea l, Plai n ti f

f prese nts two issues: (1) whether the district court err ed in concluding that Plaintiff could not meet the common-work- are a test; and (2) whether the distric t co u rt err ed in dismiss ing the case even though the Plaintiff’s complaint had al l ege d gener al neg lige nce ag ainst AAC, which could be satisfied by demonstra t i n g AAC’s vicar ious liability for PMI ’s “ac tive

8neg lige nce.” AAC counter s that the district court abused it s d i s cr et i o n in deny ing the Rule 41

motion for failure to prosecute

. III. Discussion A. F ailure to prosec ute I n revie wing a district court’s decision on a motion to d i s miss for lack of prosec ution, we apply an abuse- of-discr etion standard. Schafer v. City ofDefiance Police Dept. , 529 F.3d 731, 736 (6th Cir. 2008). “A district c ourt abuses its discretion when it relies on c lear ly err oneous finding s of fac t, when it improperly applies the law, or uses an err oneous leg al standard.” Id. (quoting Stough v. May ville Cmty. Sch. , 138 F.3d 612, 614 ( 6th Cir.1998)). Fe d

. R

. C i v . P. 41(b) provides district courts with authority to dismiss a case wher e “the plainti ff fa i l s t o p rosec ute or to comply with [t he Fe dera l Rules of Civil Procedur e] or a court order [.] ” This court ev al u at es four fac tors to deter mine whether a Rule 41(b) dismiss al is appropr iate: “(1) whether the party ’s failure is due to willfulness, bad faith, or fault; (2) whether the adver sary was prejudice d by the dismiss ed p ar ty ’s conduct; (3) whether the dismiss ed party was

war ned that failure to cooper ate could lead to dismiss al; and (4) whether less drastic sanctions wer e imposed or considere d befor e dismiss al was order ed.” Knoll v. Am. Tel. & Tel. Co. , 176 F.3d 359, 363 (6th Cir. 1999). T h e d i strict court identified the corr ect leg al standard and considere d eac h of these fo u r fac tors. Whil e the court acknow ledg ed that AAC’s motion serve d as notice to Ms. Richter, the court found the notice fac tor here was outweig hed by the other three

. The court found no bad faith on Ms. Richter’s part, no prejudice to AAC, and no rea son to consider less drastic sanctions. Thus, the court conclude d, dismiss al was ina ppropriate

. 9Wit h regard to bad faith, the district court specific ally noted that the court had g iven Ms.

Richter leave to suspend prosec ution while PMI ’s indemnity action was pursue d, and that Ms. Richter had contac ted AAC to r einitiate proce eding s within a few months of the date at which that indemnity action beca

me final. AAC arg ued that the district court had advised Ms. Richter to repor t

on the status of the indemnity action and that she had failed to do so. The court, howeve r, noted that there was no e vidence in the rec ord that Ms. Richter ha d been r equire d to make such a repor t. Wit h reg ard to prejudice , the court interpre ted AAC’s theory as an arg ument that it had been prejudice d by the loss of evidenc e th at occur red due to the passag e of time. AAC alleg ed that it could not f

ind five of the witnesses who had been deposed in the case , that a box of files could not be found, and that other files may have been destroy ed. The court reje cted that arg ument, noting that AAC was in possession of the deposition testimony of unavailable witnesses and there fore that any evidenc e lost was not irre trievable

. Now, contesting the district court ’s d ec i s ion, AAC does not arg ue that the district court applied the wrong leg al standard or that its fac tual finding s wer e err oneous. Nor does AAC attempt to spe cify exactly

what pre judice it would fac e fr om r enew ed prosec ution. I nstead, it c onfines the briefing on cross-a

ppeal to the arg ument th a

t the district court should have presumed prejudice solely from the extended passag e of ti m e. T h e case law AAC marshals in support of this arg ument, howeve r, does not sug g est an abuse of discretion. We have held that prejudice may be presumed from an unrea sonable delay

. See Refior v. Lansing Drop Forge Co. , 124 F.2d 440, 444 (6th C ir. 1942). We have not held, as AAC seems to arg ue, that prejudice must be found in ever y case —even wher e, as he re, swor

n deposition testimony

of a missing witness exis ts.

10Finally , at oral arg ument, AAC asser ted that it was prejudice d by the 2003 liquidation of its g ener al-liability insurer. Whil e AAC mentioned the fac t of liquidation in briefing its motion, it did not expl icitly

arg ue ther e that pre

judice had r esulted. I ndeed, g iven the web of indemnification in this c ase, it is not immediately clea r that AAC would be pr ejudiced by the liquidation or even that the i nsurer would have be en contr actua lly obliga ted to defe nd AAC had it not been liquidated. I n any case , AAC did not arg ue in its appe llate brief ing that the district c ourt abused its discr etion by failing to find prejudice cause d by the i nsurer ’s failure, and this court ge nera lly d o es n ot consider theories raised for the first time at oral arg ument. See United States v. Archibald , 589 F.3d 289, 298 n.7 (6th Cir. 2009). The delay in this case is c erta inly substantial. But, as the district court noted, dismiss al for failure to prosec ute “is a harsh sanction which the court should o rd er only in extreme situations showing a clea

r rec ord of contumacious conduct by the plaintiff.” W u v. T.W

. W ang, Inc. , 420 F.3d 641, 643 (6th Cir. 2005). Moreove r, a dis t ri ct court “must be g iven substantial discretion” in manag ing its docket and deter mining whether a delay results in unnece ssary burdens on the court and

o n opposing parties. Knoll , 176 F.3d at 363. The district court here applied the correc t l ega l standard and justified eac h finding with rele vant evidenc e from the rec ord. We th er ef o re find no abuse of discretion, and w e af

firm the denia l of AAC’s motion to dism iss for fa ilure to prosec ute. B. Su m m ary judgm ent We revie w a motion for summary judgme nt de novo . Brooks v. Am. Broad. Cos. , 932 F.2d 495, 500 (6th Cir. 1991). Summary judgme nt is proper if there is no g enuine issue as to any materia l fac t and the moving party is entitled to judgment as a matter of la

w. Fe d. R. Civ. P . 56.

11Be cause fede ral jurisdi ction in this case is based on diversity of citi ze n ship, fede ral courts

apply the substantive law of the forum state of Michig an. See Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78 (1938). “I n resolving issues of Mi chig an law, we look to th e fi n al d ecisions of that state’s highe st court, and if there is no decision direc tly on point, then we must make an E r i e g uess to deter min e how that court, if prese nted with the issue, would resolve it.” Conlin v. Mortg. Elec. Registration Sys., Inc. , --- F.3d

--- -, No. 12-2021, 2013 WL 1442263, at *2 (6th Cir. Apr. 10, 2013). “I n making this deter

mination, ‘[i] ntermedia te state a ppellate c ourts’ dec isions are a lso viewed as persua sive unless it is shown that the state’ s highe st court would dec ide the issue diffe rently .” Id. (quoting Savedoff v. Acc ess Grp., Inc. , 524 F.3d 754, 762 (6th Cir.2008)). Cf. Morrison v. B. Braun Med. Inc. , 663 F.3d 251, 257 n.1 (6th Cir. 2011) (noting that decisions of the Michig an intermediate
courts ar e binding authority under Michig an law)

. Ms. Richter arg

ues that the district court improperly g rante d summ ar y judgme nt to AAC beca use there are two avenue s throug h which AAC may be held liable under Michig an law: first, under the “common work are a” exception t o t h e gen er al rule that an owner is not liable for the neg lige nce of independe nt contra ctors; and second, under a theory that AAC may be liable for PMI ’s active neg lige nce under traditional common-law rules of vi car ious liability

. AAC ar gu es t h at t he common-work- are a claim fails on the merits; that Richter forf eited her alterna

tive theory by failing to raise it below; and tha t, in any case , the alter

native theor

y fails on the mer its as well. 1. Legal standard “I t has been long established in Michig an that a person who hires an independe nt contra ctor is not liable for injuries that the contra ctor neg lige ntly cause s.” DeShambo v. Nielsen , 684 N.W.2d 332, 335 (Mich. 2004); Bosak v. Hutchinson , 375 N.W.2d 333, 3 3 8 (M i ch

. 1985) (citing 2

12Restatement Torts, 2d, § 409, p. 370). This rule applies both to landowne rs who hire independe nt

contra ctors and to g ener al contra ctors who hire subcontrac tors. Ghaffari v. Turner Constr. Co. , 699 N.W.2d 687, 689–90 (Mich. 2005). Michig an law , h o we v er , provides for various exceptions to the rule. An owner has a nondeleg able duty to preve nt harm resulting from an inhere ntly dang erous activity

. See Bosak , 375 N.W.2d at 338. And landlords have a nondeleg able duty to exercise rea sonable car e in making repa irs and thus may

be liable to tenants for the neg lige nce of an independe nt c ontrac tor who fa ils
to proper ly make the reque sted repa irs. Misiulis v. Milbrand Mai n t

. C o r p. , 218 N.W.2d 68, 74 (Mich. Ct. App. 1974). I n other situations, the nonliability rule does not apply beca use the owner

—in addition to the
contra ct o r— h as been personally at fault. “Althoug h other courts have g ener ally ref err ed to such situations as Ex ceptions to the g ener al rule, it would seem analy tically more acc urate to denominate them Ex clusions from that rule, since vicar ious liability is not involved and the rule is thus not called into play .” Misiulis , 218 N.W.2d a t 70. The most obvious example w ould be “ac tive neg lige nce” wher e an owner or g ener al contra ctor takes some specific action that is the proxi mate cause of harm
to a plaintiff. See Johnson v. A & M Custom Built Homes of W

. Bloomfield, LPC , 683 N.W.2d 229, 231 (Mich. Ct. App. 2004) (“[N]othi ng in our state’s jurisprudenc e absolves a subcontrac tor—or any one on a construction job—of liability under the common-law theory of active neg lige nce.” ); Latham v. Barton Malow Co. , 746 N.W.2d 868, 872 (Mich. 2008) (desc ribing the common-law rule

as “ in the absence of its own active negligence , a g ener al contra ctor is not liable for the neg lige nce of a subc ontrac tor or a subc ontrac tor' s employ ee” (empha sis added))

.

13Simi larly , a landowner also may be s u bject to traditional premises liability to a business

invitee wher e the owner may have knowledg e of a dang erous condition, and fails to assure that it is fix ed, see Perry v. McLouth Steel Corp. , 397 N.W.2d 284, 2 8 7 (M ich. Ct. App. 1986), or fails to

war n business invitees of that condition, see Till man v. Great Lakes Steel Corp. , 17 F. Supp. 2d 672, 679 (E.D. Mich. 1998) (lis ting cases)

. Where the injured party is the employ ee of a co n t ra ct or or subcontrac tor, this duty to w a r n o f h id d e n dang ers has been called the “saf e-pla ce- to-work doctrine.” See Ne meth v. D etroit Edison Co. , 182 N.W.2d 617, 619–20 (Mich. Ct. App. 1970). I n 1974, the Michig an Supreme Court established an additional exception to the nonliability rule, apply ing to injuries to the employ ees of independe nt contra ctors—the common-work- are a exception. Funk 220 N.W.2d at 646. Under this exception, a g ener al contra ctor or proper ty owner

can be liable for the neg lige nce of a contra ctor if “(1) t h e d ef endant, either the proper

ty owner or g ener al contra ctor, failed to take rea sonable steps within its supervisory and coordina ting authority (2) to g uard ag ainst rea dily observa ble and avoidable dang ers (3) that cre ated a high deg ree of risk
to a signific ant number of workmen (4) in a common work are a.” Ormsby , 684 N.W.2d at 326. A p ro p erty owner can be liable under the common-work- are a exception only “if he does not trul y deleg ate—if he reta ins ‘control’ of the work—or if by rule of law or statute, the duty to g uard ag ainst the risk is made ‘nondele g able.’ ” Funk , 220 N.W.2d a t 645. Otherw ise, the liability rema ins with the contra ctor. F o r y e a r s , ma n y c o u rts—including the district court in its 1995 order in this case —interpre te d Funk as establishing two separ ate exceptions, a common-w o r k-ar ea exception and a reta ined-c ontrol exception. I n 2004, the Michi gan S u p re m e Court clar ified that “these two doctrines are not two distinct and separ ate exceptions, rathe r only one—the ‘common work are a do ct ri n e’—is an

14exception to the g ener al rule of nonliability for the neg lige nt acts of independe nt subcontrac tors and

their employ ees.” Ormsby , 6 8 4 N. W

. 2 d at 323. The court further explained that “the ‘re tained control doctrine ’ is a doctr ine subordinate to the ‘common work are a doctrine’ and is not it self an exception to the g ener al ru l e of nonliability .” Id. Rather, the reta ined-c ontrol doctrine “simply stands for the proposition that when the Funk ‘common work are a doctrine’ would apply , and the proper ty owner has sufficie ntly ‘re tained control’ over the construction projec t, that owner steps into the shoes of the g ener al contra ctor and is held to the same deg ree of car e as the g ener al contra ctor.” Id. I n sum, Ormsby has clar ified that an owner cannot be held liable under the Funk doctrine unless all four elements of the common-work- are a doctrine are prese nt and the owner has re ta in e d s u f ficient control of the w orkplac e. 2. Com m on-w ork-are a theory I n its 1995 order in this case , the district court denied summary judgme nt to AAC on a reta ined-c ontrol theory without considering the common-work- are a fac tors. Thus, when prompted i n 2 0 11 by AAC, the proper ty owner , the district court corr ectly decide d to rec onsider t h e 1 9 9 5 order

. L ooking at the question anew , the district court enter ed judgme nt in favor of AAC, holding that Ms. Richter could not me et the require ments of the third and four th elements of the c ommonwork-a rea doctrine—the “sig nificant number of worke rs” a

nd the “c ommon work are a” e lements. The dist rict court’s decision appeare d to turn on a question of t iming. Ms. Richter arg ued that, over the course of normal workda y , all of the worke rs of all four employ ers—a s many as twenty in all—might use the same walkwa y on which Richter was killed. The court, howeve r, rea soned that Ms. Richter wa s re quired to show a signific ant number of employ ees working for multipl e subcontrac tors wer e exposed to the dang er at the time of the accide nt

. The evidenc e was that “only

15three workmen, including the Dec edent, wer e on the eleva ted pathway adjac ent to the convey or belt

. . . at the time of the acc ident,” and that “o n l y WMW I employ ees wer e prese nt on the day the

acc ident occur

red.” Richter v. Process Mach., Inc. , No. 94-cv- 71301, 2012 WL 1354057, at *7 (E.D

. M ich. Apr. 18, 2012). Be cause in this case , the di strict court ex plained, “the risk of dange r p o sed by the defe ctive sheave block and rig g ing sy stem only exposed a few emplo y ee s o f o n e subcontrac tor to dang er[,] [ t] he common wor k are a exception . . . does not apply .” Id

. Michig an law, though, does not require such a result. Rather, the majo ri t y o f p u blished decisions support Ms. Richter’s position that the common-work- are a deter mination is not confine d
to a snapshot in time. I n Hughes v. PMG Bldg., Inc. , the Michig an Court of Appea ls explained that “[i] t is not nece ssary that other subcontrac tors be working on the same site at the sam e t ime; the

common work area rule merely require s that employ ees of two or m ore subcontrac tors eventua lly work in the are a.” 574 N.W.2d 691, 694 (Mich. Ct. App. 1997). The court g ave further g uidance , stating that the rule is “an effo rt t o d i s t i n g uish betwee n a situation wher e employ ees of a subcontrac tor wer e working on a unique projec t in isolation from other worke rs and a situation wher e employ ees of a number of subcontractors were all subject t o the s ame risk of harm.” Id. at 695. L ikewise, th e p lurality opinion in Gronck i v. Detroit Edison Co. rea soned that “for a common work are a to exis t there must be an are a wher e the employ ees of two or more subcont ra ct o rs will
eventua lly work.” 557 N.W.2d 289, 297 (Mich. 1996). T h er e, the plaintiff had established a 7

Gronck i did not g arne r a clea

r majority , and there fore it is not binding authority

. See 7 Ormsby , 684 N.W.2d at 327 n.8. Nonethele ss, the l ang uag e of the pl urality opinion in Gronck

i is consistent with the oft-cited Court of Appea ls case s in Hughes v. PMG Building, Inc. , 574 N.W.2d 691, 694 (Mich. Ct. App. 1997) and Candelaria v. B C Gen. Contractors, Inc. , 600 N.W.2d 348, 353 (Mich. Ct. App. 1999), and the ref ore se rves a s persua sive authority in our diversity

analy sis. 16g enuine issue of materia l fac t by putting forth evidenc e demonstra ting that the site of the ac cident “wa s used by all workmen on the projec t,” while the defe ndant asser ted that the injured worke r “wa s the onl y person who wo rk ed in that are a.” Id. A l ater case , Candelaria v. B C Gen. Cont ractors, Inc. , echoe s this conce ption of the doctrine, explaining that “[i] n order to have a ‘c o m m on work

are a,’ there need not be multipl e subcontrac tors working on the same site at the same time. All that is require d is that employ ees of two or more subcontrac tors eventua lly work in the same are a.” 600 N.W.2d 348, 353 (Mich. Ct. App. 1999). Ormsby i t s el f al s o favor s Ms. Richter’s position and provides g uidance on the proper

s t an d ar d

. I n Ormsby , the court expressly adopted the lang uag e of Hughes —with the core require ment that a signific ant number of worke rs of a number of contra ctors are “subjec t to the same risk or hazard.” Ormsby , 684 N.W.2d a t 328 n.9 (quoting Hughes , 574 N.W.2d a t 695) ; see Smith

v. BREA Prop. Mgmt. , 490 F. App’x 682, 685 (6th Cir. 2012) (conc luding that Ormsby ’s “stateme nt of t he doctrine

. . . [requires] Smit h to prove that SDI employ ees w er e s u b j ec t t o t h e same risk or hazard that c aused Smith’s acc ident as employ ees of other subcontr actor s”). I n Ormsby , the court also stated that the “hig h deg ree of ri s k t o a signific ant number of worke rs m ust exis t when the plain t i ff is injured; not afte r construction has been completed.” 684 N.W.2d at 329 n.12. AAC interpre ts this lang uag e to sug g est that t h e n u m b er of worke rs and subcontrac tors must be measure d at the exact moment that t h e worke r is injured. But this i n t erpr etation would ignor e the second half of the sentenc e. Read as a whole, the sentenc e i s consistent with the rest of the Ormbsy opinion and with the prior opinions in Hughes , Gronck i , and Candelaria

. The compar ison to “af ter the work is completed” su gges t s that the time “whe n the plaintiff is injured” ref

ers to the time per i o d d u ri ng the ong oing construction—not to a specific

17moment. When a construction phase is over, the nature and extent of the risk to worke rs presumably

chang es, and is no long er the “same risk.” Of course , discerning the rele vant time period need not involve a binary choice —during , or afte r, construction. Rather, it follows from Ormsby and its prede cessor s that the rele vant time is the time period durin g which the hazardous activity is occur ring or will occur

—whether it lasts one hour,

one day , or for the duration of a particula r construction stag e. See Smith , 4 9 0 F. App’x at 686 (mea suring the number of contra ctors on site “[a]t the time of the hazardous activity ”). The leng th of the rele vant time period is define d by the continued exis tence of the same risk of harm in the same

are a. Finally , we cannot ag ree with AAC’s asser tion that the one-pa

rag raph decision in Alderman

v. J.C. Dev

. Communities, L.L.C

. , 780 N.W.2d 840, 840 (Mich. 2010), fore closes Richter’s arg ument. I n Alderman , the Michig an Supreme Court reve rsed the Court of Appea ls, stating: The risk of injury

at issue her e wa s the risk of elec trocution from a subcontrac tor’s cra ne comi ng into contac t with power lines above the construction site. The only empl oy ees exposed to the risk of elec trocution wer e two to six employ ees of one s u bcontra ctor, including the plaintiff, and there fore there was not a high degr ee o f risk to a sig nificant number of worke rs. 780 N.W.2d at 840 (Mich. 2010) (citing Ormsby , 684 N.W.2d 320). I n reve rsing the lower court’s decision, the Michig an Supreme Court reje cted the lower court’s deter min a ti o n th a t th e r is k e x tended
to other sections of the work site—a larg e construction s i te divided into lots wher e eac h subcontrac tor worke d—simply beca u s e t h e power l ines wer e near all thirteen lot s. Id. ; Alderman

v. J C Dev

. Communi t i es . , L L C , No. 285744, 2009 WL 2607084, at *2 (Mich. Ct. App. Aug

. 25, 2009). The Michig an Supreme Court’s terse opinion contains no further explanation for its holding, b u t t h e m ost obvious one is that there was no common work are a wher e a signific ant numb er o f

18employ ees wer e at risk. Given this rea sonable fac tual basis for reve rsal, it would be wrong to instead

choose to rea d into that brief para g raph a signific ant shift in the law on the timing issue. Hughes, Gronck i, and Candelaria articula te a same-r isk rule that is not limit ed to the moment of the acc ident, and the car eful analy sis in Ormsby appea rs to ratif y t hat approa ch. Had the Michig an Supreme Court’s intent in Alderman been to reve rse decade s of precedent , it is only rea sonable to expect it to have sa id so ex plicitly

and provide d its rationale. I n sum, we consider Hughes , Gronck i , Candelaria and Ormsby to repr esent the curr ent state of the common-work- are a doctrine. Under their more flexibl e temporal rule, a court must deter mine the risk at issue, how long the risk was or would be prese nt, and whether a sign i fi ca n t n umber of employ ees of

multipl e subcontra ctors we re or would be exposed to that risk during its ex istence. Applied to Ms. Richter’s case, this rule sugg ests that it was proper to deny AAC’s m otion for summary judgme nt. Ms. Richter pre s en t ed evidenc e that the risk from the defe ctive rig g ing could include the swing ing sheave block that hit Richter and also the slingshot eff ect on the rest of the rig g ing. And the time period that the defe ctive rig g ing and sy stem resulted in these risks appea rs 8
to have been longe r than the single day on Saturday

. The pull for the bottom half of the b el t was perf ormed on Wednesday and Thursday , and the rig g ing sy stem for Saturday ’s pull was set up—and possibly “tried” —on Fr iday

. The employ ees of other contra ctors wer e pres e n t d u r ing the work wee k, and the convey

or was not cordone d off or otherwise inacc essible to those worke rs. At least one GMW worke r, Dan Har dy , was p re s en t beca use he had loaned equipment appar ently used in the

WMW I supervisor Rick West testified that on another construction site, a simil ar set up in 8 which a vehicle was being used to pull a belt had resulted in a cable brea k, noting t h at “the cable broke and went zinging rig ht by with [ s i c] t h re e o f u s.” West Dep. 113–14, R. 177-1 at Pag eI D #1928–29. 19rig g ing t o R i t chie. Ritchie himself was also prese nt. This demonstrates that multipl e contractors

worke d in the rele vant are a, the fourth element of the common-work- are a doctrine, and that the belt pull may not have been “a situation whe re employ ees of a subcontrac tor wer e working in isolation from other

worke rs.” Ormsby , 684 N.W.2d at 328 n.9 (quoting Hughes , 574 N.W.2d at 695). Fur thermore , beca

use the comm o n-work- are a doctrine require s “that employ ees of two or

more subcontrac tors eve ntually work in the same are a,” Ca n del a r i a , 600 N.W.2d at 353, we also
must consider the risk that would have been prese nt during all of the pulls nece ssary to complete the convey or belt had the acc ident not occur red. I n this case , the rec ord is unclea r as to whether the pull beg un on Saturday morning was to be finished that day

. But belt pulls for contig uous sections of the convey or wer e perf

ormed shortly there afte r. Thus, had the accident not occur red, the appar ently improper rigg ing sy stem may have been used on subsequent day s in the common-work- are a. Ms. Richter has arg ued that as many as twenty worke rs—from four differ ent employ ers—mig ht use the
catwa lk wher e the acc ident happen ed o n a normal business day , a number of employ ees that we

assume would satisfy the “sig nificant number” of worke rs element. And she points to the deposition testimony of Ritchie, stating that GMW, PMI , and W h eatland employ ees had to walk, stand, or utiliz e the convey or belt line during the course of the projec t. App. at 379–83. Thus, to the extent that the belt pull had begun the prior wee k and could have continued into the next work wee k, there is a g enuine dispute of fac t as to whether a signific ant number of employ ees of multipl e contra ctors would have been subject to the same risk. Under the corr ect leg al standard, this evidenc e is sufficie nt to establish a g enuine iss u e o f m aterial fac t as to whether the convey or-be lt line was a common work a

rea .

203. Vicarious liabi lity

Ms. Richter arg ues that AAC may also be held vicar iously liable for PMI ’s “a ctive neg lige nce” based on the evidenc e that Ritchie play ed a role in devising th e defe ctive rig g ing proce dure. The arg

ument, as best as we can pin it down, appea rs t o co n fl at e the reta ined-c ontrol aspec t of the common-work are a doctrine with the doctrine of respondeat superior

. See Candelaria , 600 N.W.2d a t 352–53 ( descr ibing the reta ined-c ontrol doctrine under Funk as “distinct” from the doctrine of respondeat superior ). Ms. Richter did not fully brief this a rg ument below. She ra ised it in a footnote in her summary -judg ment respons e b ri ef , an d t he dis trict court did not addre ss it. Given that we are rema

nding this case based on the common-work- are a theory , we leave it to the district court to deter

mine whether Ms. Richter has forf eited or waived this arg ument, and if not, whether it is vi able. IV. Conclusion Having deter

mined that Michig an law does not limit the evidenc e for a common-work- are a claim to the moment of an acc ident, and for the rea sons articula ted above, we conclude that summary judgme nt to AAC is not appropr iate at this time. We there fore REVERSE the district court’s g rant of summary judgme nt to AAC, and REMAND this case for further proce eding s consistent with this opinion.

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