Michigan Supreme Court

Lansing, Michigan

Stephen J. Markman,

 Chief Justice

Brian K. Zahra

Bridget M. McCormack

David F. Viviano 

Richard H. Bernstein

Joan L. Larsen

Kurtis T. Wilder,

Justices

Order 

May 19, 2017

153830

RONNIE DANCER and ANNETTE DANCER,

Plaintiffs-Appellees,

v SC: 153830

COA: 324314 

Kalamazoo CC: 2012-000571-NO

CLARK CONSTRUCTION COMPANY, INC.,

Defendant-Appellant, 

and

BETTER BUILT CONSTRUCTION SERVICES,

INC.,

Defendant-Appellee.

_________________________________________/

On April 13, 2017, the Court heard oral argument on the application for leave to 

appeal the April 26, 2016 judgment of the Court of Appeals. On order of the Court, the 

application is again considered, and it is DENIED, because we are not persuaded that the 

question presented should be reviewed by this Court. 

MARKMAN, C.J. (concurring).

I concur in the Court’s order denying leave to appeal because I agree with the 

Court of Appeals that genuine issues of material fact remain at this time that preclude 

summary disposition in defendant’s favor. I write separately to afford whatever guidance 

I might in this difficult area of the law as to how this Court should define the “danger 

creating a high degree of risk” for purposes of the “common work area” doctrine.

The “common work area” doctrine constitutes an exception to the common-law 

rule that a general contractor is not liable for the negligence of its subcontractors. 

Ormsby v Capital Welding, Inc, 471 Mich 45, 55-56 (2004). In order to recover from a 

general contractor, a plaintiff must show all of the following: 

(1) the defendant contractor failed to take reasonable steps within its 

supervisory and coordinating authority (2) to guard against readily 

observable and avoidable dangers (3) that created a high degree of risk to a 

significant number of workers (4) in a common work area. [Latham v 

Barton Malow Co, 480 Mich 105, 109 (2008) (Latham I).] 

This Court asked the parties in the instant case to brief whether there is a genuine issue of 

material fact as to element three of the “common work area” doctrine. Dancer v Clark 

Constr Co, 500 Mich ___ (2016).
2

The threshold question in examining this third element is “[w]hat was the danger 

creating a high degree of risk that is the focus of the general contractor’s responsibility?” 

Latham I, 480 Mich at 113. Only after properly classifying this relevant “danger” can a 

court determine whether it posed a risk to “a significant number of workers.” The 

difficulty is in determining how broadly or narrowly to define this “danger.” As I 

previously stated in opposition to an order denying leave to appeal, I believe the Court 

when making this determination 

must take cognizance of at least the following: (1) the breadth of the risk 

that the plaintiff faced in terms of calculating the number of uninjured 

workers who were exposed to the same risk and (2) the proper level of 

generality by which to characterize and define the specific risk incurred by 

the plaintiff and thereby to calculate the number of uninjured workers who 

were exposed to that same risk. To overgeneralize the risk and define it in 

an excessively broad manner is to threaten “strict liability” applications of 

the exception, and the expansion of the exception to a point at which it 

displaces the general rule; therefore, the risk must be circumscribed more 

narrowly than the mere risk posed by heights. However, to define the nature 

of the risk overly specifically, and in an excessively narrow manner, is to 

render the exception increasingly irrelevant . . . . [Latham v Barton Malow 

Co, 497 Mich 993, 995-996 (2015) (MARKMAN, J., dissenting) (Latham 

II).]

The principal case addressing this issue is Latham I. In Latham I, 480 Mich at 

108, the plaintiff was injured when he fell 13 to 17 feet off of a mezzanine that lacked 

perimeter protection. At the time of the injury, the “plaintiff was not wearing a fallprotection harness, contrary to job-site rules of which he was aware,” and it was 

undisputed that the harness would have prevented the plaintiff’s fall. Id. This Court held 

that the relevant “danger” was not merely working from a dangerous height, since this is 

an “unavoidable condition of construction work.” Id. at 113-114. Rather, the “danger” 

was properly characterized as “working at heights without fall-protection equipment.” Id. 

at 114 (emphasis altered).

While not expressly stated in this manner, Latham I indicates that the appropriate 

scope of the “danger” addressed in the third element must encompass the worker’s use 

of-- or failure to use-- equipment available in seeking to ameliorate an unavoidable 

danger inherent in the work environment. Such a formulation of the relevant “danger” 

properly focuses on the steps taken by the contractor to protect the workers from 

unavoidable dangers inherent at a construction site. See Funk v Gen Motors Corp, 392 

Mich 91, 104 (1974) (“Placing ultimate responsibility on the general contractor for job 

safety in common work areas will, from a practical, economic standpoint, render it more 

likely that . . . necessary precautions” will be implemented and “necessary safety 
3

equipment” provided.). In Latham I, 480 Mich at 114, we explained that “[i]f a hazard 

cannot be removed, the general contractor can take reasonable steps to require workers to 

use safety equipment and procedures, thereby largely reducing or eliminating the risk of 

harm in many situations.” The Court then concluded that the “danger” was “working at 

heights without fall-protection equipment.” Id. (emphasis altered). Accordingly, this 

Court defined the “danger” to take into consideration the safety equipment available to 

the worker engaging in the conduct that exposed him or her to an unavoidable danger 

inherent in a construction site.

In the instant case, plaintiff fell 35-40 feet off of a scaffold that was made with 

unsecured planks lacking supporting bridges and outriggers. The unavoidable danger that 

led to plaintiff’s injury was working at a dangerous height. The scaffold was the platform 

provided for the workers to walk on while working at a dangerous height, and there was 

fall-protection equipment available that plaintiff could have worn, but he did not do so. 

Therefore, the asserted “danger” here was working at a dangerous height without fallprotection equipment on a scaffold that was made with unsecured planks lacking 

supporting bridges and outriggers. Because there are genuine issues of material fact as

to: (a) the number of workers who used the scaffold without fall–protection equipment, 

(b) whether the general contractor was negligent in constructing the scaffold in that 

manner, (c) whether the general contractor failed to take reasonable steps to ensure that 

the fall-protection equipment was, in fact, used, and (d) whether this negligence 

contributed to plaintiff’s injury, summary disposition is inappropriate.

Defendant argues that plaintiff created the relevant “danger” by improperly 

overlapping the planking in a manner that led to his fall. Defendant reasons that because 

plaintiff created that danger and no other workers were exposed to that danger-- as the 

improperly overlapped planking fell when plaintiff did-- a significant number of workers 

were not exposed to the “danger” that caused plaintiff’s injury.

However, defendant’s characterization of the “danger” is “excessively narrow.” 

Latham II, 497 Mich at 996 (MARKMAN, J., dissenting). Assuming that plaintiff did 

improperly overlap the planking in a manner that led to his fall, I do not believe the 

overlapped planking constitutes the “danger” for the purpose of the third element of the 

“common work area” doctrine. Characterizing the “danger” to include the worker’s 

negligence, other than the worker’s failure to employ available safety precautions, would 

effectively impose a contributory-negligence regime on “common work area” doctrine 

claims, contrary to this Court’s caselaw. Funk, 392 Mich at 113-114 (declining to adopt 

the doctrine of contributory negligence in claims brought under the doctrine); Placek v 

Sterling Heights, 405 Mich 638, 650 (1979) (replacing contributory negligence with 

comparative negligence for common-law claims); Hardy v Monsanto Enviro-Chem Sys, 

Inc, 414 Mich 29, 37 (1982) (holding that comparative negligence constitutes a defense in 

a claim based on the doctrine). 
4

This Court addressed a similar issue in Ghaffari v Turner Constr Co, 473 Mich 16 

(2005). In Ghaffari, the issue was whether the “open and obvious” danger doctrine was 

applicable to “common work area” claims. Id. at 17. We concluded it was not, in part 

because application of the “open and obvious” danger doctrine in this context would 

“largely nullify the doctrine of comparative negligence in the construction setting, and 

effectively restore the complete bar to a contractor’s liability abolished when Hardy

eliminated contributory negligence in that setting.” Id. at 26. We explained:

The adoption of the open and obvious doctrine in the general 

contractor setting would tend to thwart the goals of workplace safety 

advanced by our decisions in Funk and Hardy. If we were to adopt the rule 

set forth below by the Court of Appeals, we would effectively return to a 

contributory negligence regime. In such a case, no matter how negligent 

the general contractor was in creating or failing to ameliorate the hazard, 

the employee would be barred from recovery because the hazard was open 

and obvious.

Hardy recognized that such bars to recovery “provide a strong 

financial incentive for contractors to breach the duty to undertake 

reasonable safety precautions.” . . . Instead, Hardy adopted a comparative 

negligence rule on the grounds that such a rule retains a strong incentive for 

general contractors to maintain workplace safety. [Id. at 27, quoting 

Hardy, 414 Mich at 41.] 

Similarly, if the relevant “danger” for the purpose of the “common work area” 

doctrine encompasses a plaintiff’s negligent conduct other than his or her failure to use 

available safety equipment, “we would effectively return to a contributory negligence 

regime.” Id. Any time a plaintiff has been negligent in performing his or her work, the 

plaintiff could reasonably be characterized as creating a “new danger” to which only the 

plaintiff was exposed. As a result, a plaintiff could only recover if he or she did not 

contribute at all to the danger that caused the injury-- giving rise to the functional 

equivalent of a contributory-negligence regime. Accordingly, a plaintiff’s negligence, 

other than his or her failure to use available safety equipment, should be evaluated in 

determining whether plaintiff was comparatively negligent, but not in the course of 
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 May 19, 2017

t0516

5

Clerk

defining the precise “danger” to which a “significant number of workers” must have been 

exposed.

In sum, the “danger” in the present context should be defined in terms of the 

equipment available to the worker when confronting an unavoidable danger inherent on a 

construction site that caused the injury. This standard is consistent with this Court’s 

holding in Latham I and properly focuses on the contractor’s duty to implement 

necessary precautions and to provide necessary safety equipment to protect workers from 

unavoidable dangers inherent in the workplace. Funk, 392 Mich at 104; Latham I, 480 

Mich at 114. Additionally, a plaintiff’s negligence that is unrelated to his or her failure to 

use available safety equipment should not be included in defining this “danger” but 

should only be assessed in the context of evaluating the comparative negligence of the 

employee. In this case, the “danger” was working at a dangerous height without fallprotection equipment on a scaffold with unsecured planks absent supporting bridges and 

outriggers. Because there remains, in my judgment, a genuine issue of material fact as to 

whether this constituted a “danger” that created a high degree of risk and whether a 

significant number of workers were exposed to that “danger,” summary disposition is 

inappropriate at this time. Accordingly, I agree with the judgment of the Court of 

Appeals and concur in this Court’s order denying leave to appeal. 

WILDER, J., did not participate because he was on the Court of Appeals panel.