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### STATE OF MICHIGAN

COURT OF APPEALS

RONNIE DANCER and ANNETTE DANCER,

Plaintiffs-Appellants, UNPUBLISHED April 26, 2016

V No. 324314 Kalamazoo Circuit Court CLARK CONSTRUCTION COMPANY, INC., and BETTER BUILT CONSTRUCTION SERVICES, INC., LC No. 2012-000571-NO

Defendants-Appellees.

Before: M URPHY , P.J., and W ILDER and B ORRELLO , JJ.

P ER C URIAM

.

Plaintiffs, a mason tender who was injured at a construction s ite and his wife, appeal as of right the trial court’s order gr anting summary disposition in f avor of defendants, the general contractors in charge of the c onstruction project, under MCR 2. 116(C)(10) (no genuine issue of material fact). We reverse and r emand for further proceedings.

I. FACTS

The order appealed set forth the underlying facts that are not in dispute (parentheticals omitted): On August 9, 2010, [plaintiff 1 ] was injured when he fell approximately 35 to 40 feet from a scaffold . . . . [Plaintiff] was a union mas on tender working for Leidal & Hart Mason Contractors, Inc. Leidal & Hart was selecte d by Better Built Construction Services, Inc.[,] to construct the masonry walls f or a new building that was being built at the Fort Custer Training Center. Better Built served as a

1 Because plaintiff Ronnie Dancer is the person who was injured, and plaintiff Annette Dancer’s interest in this case is deriva tive in nature, references in th is opinion to the singular “plaintiff” will pertain exclusiv ely to Ronnie Dancer.-2- general contractor. The U.S. Army Corps of Engineers supervised the project and Better Built teamed with Clark Construction Company, Inc.[,] as part of a federal mentorship program. Plaintiff[s] . . . filed a Complaint allegi ng Defendants were negligent in supervis ing site safety.

Plaintiff testified in his deposition that the accident left h im without memory of the particulars of his fall, but in their brief on appeal plaintiff s describe, and cite e xhibits illustrating, three “mast climbing work platforms,” or scaffolds, positioned eight to ten feet from each other, with those gaps in work surfaces traversed by overlapped but un secured planks, suggesting that this was a makeshift arrangement where more sophi sticated and s afer equipment could have been used. This account comports with the description provided in t he deposition of an apprentice electrician who worked on the project as the employee of a diff erent subcontractor. The apprentice electrician testified that there were three scaffold ing units, with the space between them connected “by 2x12s,” and th at workers stood on those plan ks with nothing under them to bridge those gaps. The apprentice electrician added that the a rrangement of overlapping planks was never secured up to the time plaintiff fell. Plaintiffs fu rther assert, and cite deposition testimony showing, that standards intended to pro tect workers f rom falls were not enforced at the time in question.

In asserting claims of negligence against defendants, plaintiffs invoked the commonwork-area doctrine. In ruling on defendants’ motions for summa ry disposition, the trial court cited authorities to establish that plaintiffs’ theory of recov ery required operation of the doctrine, with the court concluding that plaintiffs failed to offer evide nce sufficient to create a genuine issue of material fact concerni ng satisfaction of two of the el ements required for its invocation.

II. STANDARD OF REVIE W AND SUMMARY DISPOSITION PRINCIPLES

This Court reviews de novo a trial court’s decision on a motio n for summary disposition. Loweke v Ann Arbor Ceiling & Partition Co, LLC , 489 Mich 157, 162; 809 NW2d 553 (2011). We likewise review de novo, as a question of law, the applicabi lity of a legal doctrine. James v Alberts , 464 Mich 12, 14; 626 NW2d 158 (2001). In Pioneer State Mut Ins Co v Dells , 301 Mich App 368, 377; 836 NW2d 257 (2013), this Court recited the principles governing an analysis under MCR 2.116( C)(10), observing:

In general, MCR 2.116(C)(10) provides for summary disposition when there is no genuine issue regarding any material fact and the m oving party is entitled to judgment or partial judgment as a matter of law. A motion brought under MCR 2.116(C)(10) tests the factual support for a party's claim. A trial court may grant a motion for summary disposition under MCR 2.116(C)(1 0) if the pleadings, affidavits, and other documentary evidence, when vie wed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact. A genuine issue of material fact exists w hen the record, giving the benefit of reasonabl e doubt to the opposing party, l eaves open an issue upon which reasonable minds might differ. The trial court is no t permitted to assess credibility, weigh the evidence, or resolve factual disp utes, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition-3- under MCR 2.116(C)(10). A court may only consider substantively admissible evidence actually proffered relative to a motion for summary di sposition under MCR 2.116(C)(10). [Citations and quotation marks omitted.]

III. THE COMMON-WORK-AREA DOCTRINE

General contractors are not normally liable for the negligence of their independent subcontractors or their employees. Ormsby v Capital Welding, Inc , 471 Mich 45, 53; 684 NW2d 320 (2004). However, our Supreme Court has recognized a limite d exception in connection with construction projects: “We regard it to be part of the business of a general contract or to assure that reasonable steps within its supervisory and coordinating a uthority are taken to guard against readily observable, avoidable dangers in common w ork areas which create a high degree of risk to a significant number of workmen .” [ Id. at 53-54 (citation omitted).]

Practical considerations underlyi ng the common-work-area doctri ne include that “ ‘even if subcontractors and supervisory employees are aware of safety viola tions they often are unable to rectify the situation themselves and are in too poor an economi c position to compel their superiors to do so.’ ” Ghaffari v Turner Constr Co , 473 Mich 16, 21; 699 NW2d 687 (2005) (citation omitted).

A plaintiff invoking the common-wo rk-area doctrine against a g eneral contractor “must show that (1) the defendant . . . failed to take reasonable ste ps within its supervisory and coordinating authority (2) to gua rd against readily observable and avoidable dangers (3) that created a high degree of risk t o a significant number of workme n (4) in a common work area.” Ormsby , 471 Mich at 54.

In this case, the trial court held that plaintiff “presented e vidence that could create a genuine issue of material fact regarding whether there was an e xistence of a readily observable, avoidable danger,” thus expressl y concluding that plaintiffs sa tisfied their evidentiary burden with respect to the second elem ent, and impliedly concluding th at this applied also to the first element at least with respect to the second. But the trial cou rt further held that “there was not a high degree of risk to a significant number of workers and ther e was not an existence of a common work area,” thus concluding that plaintiffs failed to pr ovide evidentiary support for the third and fourth elements.

A. COMMON WORK AREA

A common work area exists where “the employees of two or more subcontractors eventually work in the same area.” Candelaria v B C Gen Contractors, Inc , 236 Mich App 67, 75; 600 NW2d 348 (1999). “[T]here need not be multiple subcont ractors working on the same site at the same time.” Id.

In this case, the trial court recognized that the evidence ind icated that “subcontractors other than Leidal & Heart [sic] did use [the] scaffold at times ,” but ruled that the required-4- commonality did not exist because when plaintiff fell the scaff old was at a height of 35 to 40 feet, that only Leidal & Hart’s employees used the scaffold at heights greater than 20 feet, and that “[t]he scaffold ceased to be a common work area when it re ached a height above 20 feet.” 2

In championing the court’s reasoning, defendants rely on a fed eral case, applying Michigan law, for the reasonable proposition that a work area c an cease to be a common one through the course of the construction project: [I]t is not true that a location always remains a common work area. Even if there is an obvious danger in a particular location, there beco mes a point at which there is no longer a “high degree of risk to a significant numb er of workers,” because the workers have ceased working in the common work area . [ Sprague v Toll Bros , 265 F Supp 2d 792, 800 (ED Mich, 2003).]

Plaintiffs protest that the trial court failed to recognize th at the hazard existing at elevations above 20 feet also existed at some lower elevations. We agree that the trial court erred in concerning itself with whether the evidence indicated that any subcontractor other than Leidal & Hart operated at the elevation at which plaintiff fell , rather than whether the evidence indicated that multiple subcontractors operated at dangerous, e ven if lesser, elevations.

One such lesser but still-dange rous elevation is the 20 or 25 feet at which the apprentice electrician testified he had operated. Further, the foreman fo r a plumbing subcontractor testified in his deposition that he had us ed the scaffolding in question several times, possibly up to heights of 14 feet. Although a fall of 35 or 40 feet obviously poses a greater risk than one involving those lesser elevations, we think it obvious that an elevation of 14, let alone 25, feet is high enough to contribute substantiall y to the degree of risk that a falling hazard presents. 3

For these reasons, we conclude that the trial court erred in c oncluding that the scaffold was not a common work area when plaintiff fell solely because p laintiff fell from an elevation that only he and his fellow Leidal & Hart employees reached.

2 In fact, the above-referenced a pprentice electrician testified that his work on the scaffolding sometimes took him to heights of 20 or 25 feet. Although that evidence is at variance with the trial court’s conclusion that onl y plaintiff and other employee s of Leidal & Hart went higher than 20 feet, it leaves intact the court’s observation that the evid ence indicated that only plaintiff and his colleagues approached the he ight from which plaintiff fell.

3 The evidence in this case incl udes excerpts from a manual of s afety and health requirements issued by the Army Corps of Engineers, which sets forth a “fall protection threshold height requirement” of six feet unless a different specification appli es. Were it necessary to determine the precise height at which the elevation would be deemed a fac tor substantially increasing the risk of serious injury in the event of a fall, taking guidance from that manual would recommend six feet.-5- B. HIGH DEGREE OF RISK TO A SI GNIFICANT NUMBER OF WORKERS

In concluding that the evidence did not support the propositio n that the allegedly hazardous condition placed a significant number of workers at r isk, the trial court stated as follows: Plaintiff was the only one on the scaffold. The only other wor ker in the area was on a crane. Thus, no other workers were in danger at t he time of Plaintiff’s injury. Plaintiff created the dangerous condition w hen he chose not to wear his fall protection device and when he improperly overlapp ed the planks. Therefore, Plaintiff has not established a genuine issue of mat erial fact to show that a significant number of wor kers were exposed to the risk.

The court thus rejected both facets of this element, having con cluded that plaintiff, not defendants, were responsible for the condition leading to plain tiff’s fall because of plaintiff’s role in creating a work surface of unsecured and unsupported planks and then traversing that surface without availing himself of a f all-protection device, and that the poorly positioned planks posed a danger in connection with too few workers to be actionable unde r the common-work-area doctrine.

1. SIGNIFICANT NUMBER OF WORKERS

There was in fact conflicting evidence concerning whether plai ntiff was alone on the scaffold when he fell. An equipment operator for Leidal & Hart testified on deposition that, although “probably at least eight” of that company’s employees were working on the scaffolding on the day of plaintiff’s accident, they were instructed to lea ve the site because of progressively heavy rain, leaving no one in the work ar ea but plaintiff until after he fell. In contrast, the abovementioned apprentice electrician testified that he was “pretty sure” that at the time plaintiff fell “there was [sic] other laborers up there.” The trial court thu s erred in stating, as if established fact, that plaintiff was alone on the scaffold when he fell. O f greater significance, however, is that the court apparently confin ed its consideration of how man y persons were exposed to the dangerous condition at issue to pe rsons working alongside plain tiff at the moment he fell.

The trial court quoted Ormsby ’s statement that “[t]he high degree of risk to a significant number of workers must exist whe n the plaintiff is injured; not after construction has been completed,” 471 Mich at 60 n 12, from which the court apparentl y concluded that only persons at risk at the moment of the accident bear on the question. But t he common-work-area doctrine calls for a broader inquiry. The doctrine reflects “an effort to distinguish between a situation where employees of a subcontractor were working on a unique pro ject in isolation from other workers and a situation where employees of a number of subcontr actors were all subject to the same risk or hazard.” Hughes v PMG Bldg, Inc , 227 Mich App 1, 8; 574 NW2d 691 (1997). Accordingly, workers placed at risk for purposes of the common- work-area doctrine are all workers exposed to the risk in t he course of the construction p roject. Ormsby ’s admonishment not to consider conditions of the site “after construction has been completed” indicates not that the Court was differentiating the moment of the accident from a ll other times, but rather that it was distinguishing the risks present when the accident occurred as part of the ongoing-6- construction project from conditions in place as of the complet ion of the project. In other words, the Court was calling for differentiation between the character istics of the construction site from those of the finished project.

The United States Court of Appeals for the Sixth Circuit, appl ying Ormsby

, Hughes

, Candelaria , and other Michigan caselaw, persuasively 4 held that “the common-work-area determination is not confined t o a snapshot in time,” that “ ‘when the plaintiff is injured’ refers to the time period during the ongoing construction—not to a specif ic moment,” and thus that “[t]he length of the relevant time peri od is defined by the continued existence of the same risk of harm in the same area.” Richter v American Aggregates Corp , 522 Fed Appx 253, 263 (CA 6, 2013). Accordingly, whether plaintiff happened to be alone on the scaf folding when he fell has little bearing. At issue is whether the evidence of all workers opera ting on the allegedly defective scaffolding during the ongoing c onstruction project added up to a significant number.

As noted, there was evidence to show that several masons were on the scaffolding earlier in the day of plaintiff’s fall. Beyond that, the apprentice el ectrician testified that, before plaintiff’s fall, the electrician had “stepped on the edge of a board and another individual was on the other end and he ended upraising up and [they] both kind of danced back and forth till [they] both landed on something solid,” and that this had happened whi le they were about 10 feet off the ground. This testimony placed into evidence that one and p ossibly two workers not under Leidal & Hart’s auspices were placed at risk by the hazard at i ssue. The apprentice electrician additionally testified that caulk ing contractors used the scaff olding; although he w as unsure if the caulkers were a subset of the masons, he nonetheless put into e vidence that still other workers were exposed to the hazard.

Further, a worker whose duties for the project included helpin g Better Built learn how to tend to such large projects stated in his deposition that worke rs who “could have been” upon the scaffolding at some time included “the iron workers,” “maybe th e electricians,” and the “mechanical guys” whose work involved heating and air condition ing. Additionally, the aforementioned foreman for the plumbing subcontractor testified that he had used the scaffold at heights up to 14 feet, and added t hat he frequently observed th e electricians using it as well.

The trial court observed that the caselaw does not specify a m inimum number of workers required to satisfy the “substantial number” requirement of the common-work-area doctrine, but that Hughes , 227 Mich App at 8, advises that four is insufficient. We tak e further guidance from Latham v Barton Malow Co , 480 Mich 105; 746 NW2d 868 (2008). In Latham , our Supreme Court remanded a case involving the common-work-area doctrine f or, among other things, redetermination of the question whether the hazardous condition at issue put at risk a significant number of workers. Id. at 115 n 25. The Court did not discourse on what number would be required, but presumably would not have deemed the question ope n if it thought that the “rough estimate” of a dozen such workers the dissent identified, id. at 121 (K ELLY , J., joined by

4 “Although lower federal court decisions may be persuasive, the y are not binding on state courts.” Abela v Gen Motors Corp , 469 Mich 603, 607; 677 NW2d 325 (2004).-7- C AVANAGH , J., dissenting), was not suffici ent as a matter of law. In t his case, plaintiffs plausibly assert that the evidence supports the conclusion that at least 15 workers were put at risk. We agree that the evidence that workers using the scaffold include d several masons, multiplicities of electricians, iron workers, and heating and cooling workers, al ong with one employee of the plumbing subcontractor, establis hed a question of material fact whether a significant number of workers occupied the allegedly unsafe scaffolding.

2. HIGH DEGREE OF RISK

Again, the trial court discount ed the existence of an issue ov er the existence of a high degree of risk of avoidable dange r attributable to defendants o n the grounds that plaintiff failed to engage a fall-protection device, and was himself responsible for the shoddy arrangement of planks that rendered the surface from which he fell unsafe.

a. FALL PROTECTION

In arguing that the trial court failed to recognize a material question of fact concerning fall protection, plaintiffs assert that the evidence shows that fall protection was not required of workers on raised platforms that had closed guardrails, that to the extent that the manual of the Army Corp of Engineers setting forth safety requirements requir ed additional fall protection defendants failed to enforce the requirement, and thus that “[w ]hether it was necessary for [plaintiff] to wear fall protection at the time of his fall, or whether his failure to wear fall protection was his own fault or was attributable to Defendants’ negligence, are unquestionably jury questions.” These arguments have merit.

A crane operator who was the only eyewitness to plaintiff’s fa ll testified that “there were guardrails on the foot plank,” and that one of plaintiff’s task s was to “make sure the safety rails were in place.” A bricklaying foreman testified that workers w ere required to wear fall protection only where there was a fall hazard, including when a lack of protective railing left an unprotected opening, and that he had no reason to think that th ere was any opening in the platform from which plaintiff fell until plaintiff dislodged a plank with his weight. Plaintiff, when asked during his depositi on about use of a safety harness for fall protection, stated that the harness was required only when it was necessary to open a door to the platform.

An investigator for the Michiga n Occupational Safety and Healt h Administration testified that plaintiff was not required to wear fall protection while s tanding upon properly placed planks, but that “in the process of replacing them is when the fall pro tection would be required to be provided and used.” 5

5 This Court, quoting MCL 408.1002(2), held that violation of a MIOSHA regulation could be used as evidence of negligence, but only that. Ghaffari v Turner Constr Co , 259 Mich App 608, 613; 676 NW2d 259 (2003), rev’d on other grounds 473 Mich 16 (2 005).-8- Plaintiffs support their assertion that a cavalier attitude ab out fall protection prevailed at the construction project by pointing to deposition testimony va riously describing workers’ gaining access to the elevated platform of the scaffolding by c limbing ladders built into the system, and working from the elevated platform, without safety lanyards with a tie-off or other fall protection. The safety director for Leidal & Hart at the time of the proje ct at issue, when asked at deposition about fall protection requirements, replied, “I know the OSHA rule for masons is ten feet. It’s a company rule, six feet,” and opined that plaintif f should have been wearing fall protection when he fell, because it was required “[i]f they’re above six feet and have no guardrail or altering plank on foot plank.” The safety director agreed, however, that “once the plank is replaced and there is no opening in the platform, the worker, i ncluding [plaintiff], would not be required to wear fall protection.” Then, when asked if there w as an opening in the planking when plaintiff fell, t he safety director replied, “I can’t answ er that. I wasn’t there.” For these reasons, we conclude that the testimony concerning w hether the guardrails in place at the time of plaintiff’s fall provided sufficient fall protection to satisfy the applicable safety standards, and whether plaintiff’s activities at the mom ent called for engaging additional fall protection, presents issues of duty, breach, and comparati ve negligence for resolution at trial.

b. RESPONSIBILITY FOR FAULTY PLANKING

Plaintiffs argue that a factual question exists concerning whe ther plaintiff in fact moved any of the planks from which he fell just before the accident.

The aforementioned bricklaying foreman testified that, on the day of the accident, after sending the bricklayers home he directed plaintiff to “raise th e Hydro-Mobile and get it ready for the next day,” adding that sometimes a height adjustment requir ed moving the planks. The foreman answered in the affirmative when asked if he discussed the matter with plaintiff “before he went back up there t o move the planking.”

The crane operator who observed plaintiff’s fall, while examin ing some photographs, stated that “[plaintiff] had slid these two plank[s] over, then started to walk this way. And I guess maybe he assumed that the plank[s] underneath were lapped and he couldn’t see that and that’s why he went through to the plank[s].” The witness elabo rated, “these two plank[s] that he moved were no longer overlapped here, but the plank[s] undernea th were sticking out and . . . that’s basically why he went down. Because the plank[s] undern eath were not on the outrigger here and then he couldn’t see that because the plank[s] he slid back were on top of that gap,” and that at the time of the fall “visually all the plank[s] were in place from the ground from what I could see.”

Plaintiff testified that he never raised, or otherwise moved, the scaffold on this or any other job, explaining, “I would ju st give ‘em brick and block a nd mud, that’s all I had to do on this job.” Asked of his involvement with the scaffolding in th e 30 days before his accident, plaintiff stated the he w alked on it, but had nothing to do wit h erecting that structure.

Plaintiffs characterize the la tter testimony as indicating tha t plaintiff’s responsibilities did not include raising the work plat forms, and suggest that this t hrows into doubt the accounts of his-9- having moved any of the planks. But, although the evidence ind icates that the planks often had to be adjusted as the scaffolding was raised or lowered, that d oes not mean that a person moving planks for that purpose was necessarily otherwise involved in a djusting the height of the work surface. The evidence thus appears unrebutted that plaintiff m oved some of the planks constituting the work surface just before he fell.

However, that does not necessari ly mean that plaintiff’s own m anipulation of the planks created a hazard unique to the time of his fall. The depositio n testimony of the single eyewitness does not clearly indicate if pla intiff’s activities involving t he planks turned a safe work surface into a dangerous one, if they merely restored an inherently dan gerous structure to its original form, or if they aggravated to som e degree the dangers inherent in the structure.

Both defendants argue that the lack of similar spills in the h ours before plaintiff’s fall itself indicates that the scaffold ing offered a safe work surfa ce until plaintiff st arted modifying it just ahead of his fall. We decline the invitation to adopt the presumption that a safety hazard comes into existence only upon c laiming its first victim.

Further, as noted, the apprentice electrician testified that, before the fall at issue, he and a coworker had avoided becoming victims of a fall themselves only because they successfully “danced” their respective ways to “something solid.” This evid ence of an earlier nearoccurrence of a similar fall belies the suggestion that plainti ff himself created a uniquely dangerous condition, and suggests that the work surface in ques tion, with its reliance on unsecured planks to bridge gaps, w here frequent adjustment of t he planks was necessary as the surface was raised or lowered, was dangerously unstable by its nature.

For these reasons, we conclude that the evidence relating to p laintiff’s own role in rendering dangerous the surface from which he fell presents que stions of duty, breach, and comparative negligence for resolution at trial. 6

IV. CONCLUSION

The trial court erroneously fa iled to recognize questions of m aterial fact concerning whether the scaffolding from which plaintiff fell was a common work area, whether the conditions that caused plaintiff to fall posed a high degree of risk to a significant number of workers, and whether plaintiff’s actions during the incident ab solved defendants of liability. We

6 Both defendants argue, as an alte rnative basis for affirmance, that, contrary to the trial court’s conclusion, the evidence did not show the existence of a readil y observable danger. In so arguing, defendants rely on their theory that plaintiff’s own r earranging of the planks just ahead of his fall created the actual hazard causing the fall. We gat her that the trial court properly viewed the bridging of the gaps between the scaffolding units w ith unsecured planks as itself potentially constituting an actionable hazard, on the ground th at such allegedly unstable structure might continuously present height ened risks of accidents of the sort that took place.-10- therefore reverse the order gran ting summary disposition to def endants and remand this case to the trial court for further proceedings consistent with this op inion.

Reversed and remanded. We do not retain jurisdiction. Having fully prevailed on appeal, plaintiffs are awarde d taxable costs under MCR 7.219.

/s/ William B. Murphy /s/ Stephen L. Borrello