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### STATE OF MICHIGAN

COURT OF APPEALS

ERIN AUSTIN,

Plaintiff-Appellant, UNPUBLISHED February 21, 2017

v No. 329655
Oakland Circuit Court WALT DISNEY PICTURES, also known as WALT DISNEY STUDIOS, and GO STUNTS, INC., LC No. 2014-142777-NO

Defendants-Appellees.

Before: S TEPHENS , P.J., and S ERVITTO and S HAPIRO , JJ.

P ER C URIAM

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Plaintiff appeals as of right the order of the trial court granting defendants, Go Stunts, Inc. (Go Stunts) and Walt Disney Pictures, also known as Walt D isney Studios (WDP), summary disposition pursuant to MCR 2.116( C)(10) (no genuine issue of m aterial fact). We affirm.

Plaintiff was a stunt person on the set of the movie “Oz the G reat and Powerful” (“Oz”). Plaintiff was a direct employee of Cast and Crew Entertainment Services, Inc. (Cast and Crew). On September 13, 2011, she was injured performing a stunt that involved being thrown into the air, hitting a wall, and falling to the ground. 1 Go Stunts provided the stunt equipment used for the film pursuant to a contract with Michigan Motion Picture Pr oductions, LLC (MMPP). WDP
was the financier and distributo r of “Oz” pursuant to an agreem ent it had entered with Emerald City Films, Inc. (Emerald City). Following her accident, plain tiff filed suit against Go Stunts
and WDP.

I. GO STUNTS

A. PLAINTIFF’S ORIGINAL CLAIM AGAINST GO STUNTS

1 Plaintiff received workers’ compensation benefits through her employer, which has a statutory lien against her recovery in this case. MCL 418.827(5).-2- Plaintiff’s original allegations against Go Stunts were that i t was responsible for rigging and directing the stunt and that it performed these tasks negli gently, causing her injury. Go Stunts argues that any negligence action against it must fail b ecause it did not owe plaintiff a duty. “The threshold question ina negligence action is whethe r the defendant owed a duty to the plaintiff.” Fultz v Union-Commerce Assocs , 470 Mich 460, 463; 683 NW2d 587 (2004). The relevant factors for determining whether a duty should be impos ed are “the relationship of the parties, the foreseeability of the harm, the burden on the defe ndant, and the nature of the risk presented.” Murdock v Higgins , 454 Mich 46, 53; 559 NW2d 639 (1997). 2

The individual who directed the stunt was Scott Rogers. Roger s appears to have had a
dual role. He was the owner of Go Stunts and testified that ev en while on set he served as a “representative” of that company. However, he was not paid by Go Stunts for his work on set. On set, he was employed by Cast and Crew, the same company as p laintiff, and Go Stunts took the position that he rigged and directed the stunts only in his capacity as an emp loyee of Cast and
Crew. 3 Rogers testified consistently with Go Stunts’s position in t his case, that Go Stunts was purely an equipment rental company and had no duties regarding the use of equipment or direction of stunts. The lease agreement by which Go Stunts pr ovided equipment to MMPP is also consistent with that position. Indeed, plaintiff has not referred us to any provisions in the
lease that she claims sets f orth such a duty. The lease reads in pertinent part:

Lessee, at its own expense, shall maintain each item of Equipme nt in good mechanical condition and running order. Lessee agrees to prope rly care for the Equipment in the use and storage thereof, to keep Equipment in a covered area when not in use, to keep Equipment clean, to use and operate Equipment within its rated capacity, to restrict the use, and operation thereof to safe, careful, trained and competent personnel selected, employed and controlled by Le ssee and/or its sublessee(s) and to notify Lesso r immediately of any accident a ffecting the Equipment, setting forth all re levant facts, and thereafter pro mptly furnishing to Lessor in writing all information required by Lessor in connect ion therewith. Lessee shall be liable for any an d all damage to the Equipment due to its failure to observe any of the foregoing. If any unit of Equipment is dama ged as the result of abusive or other improper usage, Lessee agrees to pay Lessor promptly for all costs and expenses incurred by Lessor in connecti on with repair ing the Equipment damaged. The rent on any of the Equipment will not be prorated or abated while the Equipment is being serviced o r repaired for any reason for which Lessee is
liable. Lessor will not be under any liability o r obligation i n any manner to provide service, maintenance, rep airs, or parts for the Equipme nt, except that Lessor will replace any Equipment that malfunctions or becomes inoperable through no fault of the Lessee at no cost to Lessee . . . .

2 The existence of a duty is a legal question decided by the tri al court, which we review de novo. Hill v Sears, Roebuck & Co , 492 Mich 651, 659; 822 NW2d 190 (2012).

3 Because he and plaintiff were co-employees, Rogers could not b e sued. MCL 418.827(1).-3- * * *

Lessee will use the Equipment in a careful and proper manner an d will not permit any of the Equipment to be opera ted or used in violation of any applicable federal, state, or local statute, ordinan ce, rule or regulation relating to the possession, use, or maintenance of the Equipment.

Plaintiff argues, however, that Rogers’s testimony and one of Go Stunts’s answers to her interrogatories demonstrate that Go Stunts voluntarily assumed additional duties. Specifically plaintiff’s interrogatory #7 aske d Go Stunts to “[i]dentify all persons who were involved in maintaining the harness and associated equipment on the set of Oz the Great and Powerful.” In response, after Go Stunts objected to the request as overly bro ad, it stated, “Subject to and without waiving these objections, Go Stunts was responsible for maintaining Go Stunts’s harness. Go Stunts met all its obligations under Equipment Lea se agreement with [MMPP] to keep the equipment ‘in good mechanical condition and running or der.’ ” During Rogers’s deposition, plaintiff’s counsel d irected his attention to this interrogatory answer and asked how Go Stunts could maintain the equi pment if, as Rogers said, it h ad no employees. After indicating that he determined if equipment needed to be fixed or destroyed , but not as an employee of Go Stunts, Rogers further stated, “I as a representative, not an e mployee, as a representative of Go Stunts, determine when the equipment is provided -- put forth i n front of me by the rigging department of the film, I determine whether it’s to be fixed by an outside source or whether it’s to be destroyed.”

We disagree with plaintiff’s claim that these statements demon strate that Go Stunts had voluntarily assumed a duty to inspe ct and maintain the equipmen t on site. The lease does not contain any provision requiring Go Stunts to maintain the equip ment during the lease and, more to the point, expressly disclaim s any such duty and all warrant ies. If any duty to maintain the equipment can be read into the contract or the interrogatory an swer, a proposition that appears unlikely, it was clearly limited to maintaining the equipment b etween leases, i.e. while it was in Go Stunts’s possession. Similarly, Rogers’s testimony was not that he, as owner of Go Stunts, inspected equipment on set; rather, he testified that if he was notified on set that a piece of equipment was defective, then, on behalf of Go Stunts, he would determine whether the equipment could be repaired or must be replaced. That does not imply a duty on behalf of Go Stunts to inspect or maintai n the equipment on site.

Rogers’s dual role does complicate the analysis in this case. However, it is clear that all of Rogers’s responsibilities to i nspect and maintain equipment on set; to plan, stage and direct stunts; and to assure that the st unts were performed safely wer e in his capacity as an employee of Cast and Crew, not as a representative of Go Stunts. Therefore , defendant Go Stunts was entitled to summary disposition as to plaintiff’s original clai m.

B. PLAINTIFF’S REQUEST TO AMEND HER COMPLAINT TO ADD A COUNT ALLEGING DEFECTIVE EQUIPMENT

Plaintiff next argues that the trial court erred when it denie d her the opportunity to amend her complaint. Contrary to the original complaint, which focus ed on an alleged failure to properly plan the stunt or to properly use the equipment, the p roposed amended complaint-4- focused on an allegation that the equipment provided by Go Stun ts was defective when delivered. While plaintiff’s original complaint sounded strict ly in allegations of negligence, the proposed amended complaint sounded in allegations of products l iability. We review, for an abuse of discretion, the denial of a motion to amend a complain t. Diem v Sallie Mae Home Loans, Inc , 307 Mich App 204, 215-216; 859 NW2d 238 (2014). “[I]f the tr ial court’s decision results in an outcome within the range of principled outcomes, it has not abused its discretion.”
Wormsbacher v Seaver Title Co , 284 Mich App 1, 8; 772 NW2d 827 (2009). A trial court has discretion to deny a motion to amend a complaint for “particula rized reasons such as undue delay, bad faith or dilatory motive, repeated failures to cure by amendments previously allowed, or futility.” In re Estate of Kostin , 278 Mich App 47, 52; 748 NW2d 583 (2008).

We reject plaintiff’s claim that the trial court abused its di scretion in denying her leave to amend her complaint. Initially, the amendment was exceptionall y tardy as it came only three weeks before trial in a case that had been pending for over a y ear and that had previously been filed and voluntarily dismissed. While “[d]elay, alone, does n ot warrant denial of a motion to amend . . . a court may deny a motion to amend if the delay was in bad faith or if the opposing party suffered actual prejudice as a result.” Weymers v Khera , 454 Mich 639, 659; 563 NW2d 647 (1997).

More significantly, the sought amendment was futile. Richard v. Schneiderman & Sherman, PC (On Remand) , 297 Mich App 271, 274-276; 824 NW2d 573 (2012). Plaintiff
testified that the stunt was r ehearsed numerous times without i ncident immediately before her injury but offers no theory, let alone evidence, as to how a wi nch or ratchet that had been delivered with a significant defect would function properly for an extended period after delivery, but then suffer a catastrophic failure without any intervening change or recalibration. Indeed, plaintiff implicitly recognized this by initially pursuing her claim on a theory that the equipment was improperly set or adjusted on-site for the subject stunt. Plaintiff has not even come forward with any evidence that the manner in which plaintiff was injure d can occur due to a defective
device rather than one that has been improperly used by the per son controlling it.

Plaintiff argues that the need to amend arose from late-arisin g disagreement concerning the mechanism by which the stunt was performed. Plaintiff test ified (and her experts averred) that the stunt was performed using a ratchet or winch, i.e. mec hanical equipment provided by Go Stunts. Rogers and several other workers on set testified tha t the stunt was a “hand-pull” stunt in which the stunt person is pulled upwards by a cable when a p erson on the other end of the cable jumps off a ladder. Plaintiff also argues that a second video produced by defendant purporting to show the stunt being done as a “hand-pull” was ma de on a different set and with a different stunt person. 4 It is clear that there is a factual dispute in this regard. However, the accuracy of that video is of no consequence in regard to the mo tion to amend. Plaintiff has always asserted that the stunt was done mechanically and could have, at any time, sought to

4 Defendant maintains that the tape is accurate but also offers various explanations as to how provision of an inaccurate tape might have occurred. We expres s no opinion as to the tape’s

accuracy.-5- amend her complaint to allege provision of defective equipment, in addition to, or instead of, negligent use of the device on set by Rogers. 5

The trial court’s decision denyi ng plaintiff leave to amend he r complaint, whether implicit or explicit, was within the range of reasonable and pr incipled outcomes, and we do not
find it to be an abuse of discretion.

II. WDP

Plaintiff argues that the trial court erred when it granted WD P’s motion for summary disposition because there is a genuine issue of material fact r egarding WDP’s duty to plaintiff.
She claims that the evidence establishes that WDP retained and exercised a sufficient level of control over the production of “O z” to make it responsible for workplace safety. We disagree.

To support her argument that the trial court erred in granting WDP’s motion for summary disposition, plaintiff relies on the theory of retained control addressed in Plummer v Bechtel
Constr Co , 440 Mich 646; 489 NW2d 66 (1992), Candelaria v BC Gen Contractors, Inc , 236 Mich App 67; 600 NW2d 348 (1999), and Burger v Midland Cogeneration Venture , 202 Mich App 310; 507 NW2d 827 (1993). Specifically, she argues that WD P retained sufficient control over “Oz” to have been responsible for safety on set, including safety related to the stunts.

The cases plaintiff cites generally involve an analysis of a p roperty owner or general contractor’s liability to employ ees of subcontractors who are i njured on the job. In Plummer , for example, a subcontractor employee, injured at work, brought sui t against the owner of the work site and the general contractor. Plummer , 440 Mich at 648-649, 651 (opinion by L EVIN , J.). In Burger , the plaintiff, a subcontractor employee, was injured in a con struction accident and brought suit against the owner of the plant he was working on a t the time of the injury. Burger

, 202 Mich App at 311. Finally, in Candelaria , a cable television service hired an independent
contractor to install its televi sion service, and that contract or hired another independent contractor to perform a portion of the work. 236 Mich App at 7 0. The plaintiff, a subcontractor employee, was killed while performing the work. Id. Therefore, we must determine if a genuine
issue of material fact exists re garding whether WDP retained su fficient control over “Oz” to have been responsible for workpl ace safety and thus owed a duty to p laintiff.

Generally, “when an owner or general contractor hires an indep endent contractor to perform a job, the owner or general contractor may not be held liable in negligence to third parties or employees of the independent contractor.” Id . at 72. The independent contractor is responsible for workplace safety. Id . However, “[o]ne commonly recognized exception to the

5 Plaintiff argues that she could not have inspected the subject machine because defendant, having falsely asserted that no m achine was used in this stunt, was refusing to produce the relevant device. However, plaint iff could have requested ident ification and inspection of the mechanical stunt devices that were on set that day, or even all mechanical stunt devices used during the filming at this location. We find no such requests and no motion to compel such an inspection in the record.-6- general rule is the ‘doctrin e of retained control.’ ” Id

. Retention of control pr ovides the basis for the finding of a duty to exercise that control wi th reasonable care. Id. at 73. The retained control doctrine only applies where there is a “common work area.” Ormsby v Capital Welding , 471 Mich 45, 48-49; 684 NW2d 320 (2004).

To establish the liability of a general contractor . . . a plai ntiff must prove four elements (1) that the defendant c ontractor failed to take reaso nable steps within its supervisory and coordinating authority (2) to guard against rea dily observable and avoidable dangers (3) that creat ed a high degree of risk to a s ignificant number of workmen (4) in a common work area. [ Id. at 57.]

Plaintiff has failed to create a question of fact as to any of these factors. There is no evidence that WDP failed to take reasonable steps within its su pervisory authority. Its contract with Emerald City made clear that the responsibility for day-to -day safety issues rested with Emerald City. And unlike the situation in Plummer , where the project owner had 125 employees on site including 20 safety insp ectors, here, a single WDP repr esentative visited the set on only a few occasions in order to receive production status reports. P laintiff also has not demonstrated that the danger was “readily observable” or that the risk it cr eated affected “a significant number
of workmen . . . in a common work area.” 6 Because plaintiff has not presented evidence that WDP retained and exercised sufficient control over the producti on of “Oz” to make it responsible for workplace safety u nder the test articulated by our Supreme Court in Ormsby , the trial court did not err in grant ing WDP’s motion for summary di sposition.

Affirmed.

/s/ Cynthia Diane Stephens
/s/ Deborah A. Servitto /s/ Douglas B. Shapiro

6 Plaintiff has not directed us to any evidence indicating that the operation of stunt winches or ratchets is likely to affect multiple employees of various empl oyers. Rather, it appears that malfunction of such a device would predominantly, if not exclus ively, affect only stunt persons, the number of which, and employe rs of which, are not identified

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