If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

ESTATE OF JOSEPH DANIEL VELEZ, JR., by

Guardian/Conservator SUSAN MOORE,

Plaintiff

- Appellant, UNPUBLISHED January 30, 2020

v No. 345101

Macomb Circuit Court RICHARD SHAFER, KAREN SHAFER, R. SHAFER BUILDERS, REVOCABLE LIVING TRUST AGREEMENT DATED 12/14/89, by

trustees RICHARD N. SHA FER and KAREN J. SHAFER, LC No. 2017

- 002389

- NO

Defendants

- Appellees,

and

HENSLEY MANUFACTURING, INC.,

Defendant.

Before: F ORT H OOD

, P .J., and S AWYER and S HAPIRO , JJ.

P ER C URIAM

.

Joseph Daniel Velez, Jr.

, suffered incapacitating injuries when he fell off of a buildin g while performing roofing work. His estate (“ p laintiff ”) appeals the trial court’s grant of summary disposition under MCR 2.116(C)(10) in favor of the Shafer defendants (collectively “defendants”)

. For the reasons stated in this opinion, w e affirm the grant of summary disposition regarding plaintiff’s claim un der the common work area doctrine , but reverse the court’s ruling that plaintiff failed to establish a question of fact on its claim of premises liability.- 2

- I. BACKGROUND

Velez was part of a crew of workers assigned to install a water

- proof membrane ove r the recently installed roof of an addition to a building owned by defendants Richard and Karen

Shafer. 1 The building was located in an industrial park owned by the Shafers. Richard ’s own construction company, defendant R. Shafer Builders

, was the gener al contra ctor on the building project. Shafer Build ers performed much of the work on the project using its own employees. Relevant to this appeal, Shafer employees erected the steel roofing supports and roof decking; after the roof decking w as complete, the employees installed the roof’s block wall insulation.

Shafer Builders hired an individual, Larry Gill, to install the roofing membrane. Gill hired several day laborers , including Velez, on a cash basis to provide labor to do the installation.

T here was no written contr act between Gill and defendants. Moreover, Gi ll was not a licensed

contractor

, and he did not have employees, a business organization, or a safety program for the

worke r s he “hired.” Also, he did not carry either workers compensation insurance or general liability insurance. Before hiring Gill for this job , defendants did not inquire whether he carried

insurance.

The roofing installation occurred over the course of two days, August 20 and 24, 2016. On August 24 , 2016, Velez fell fro m the 20

- foot roof and suffered catastrophic injuries, leaving him severely disabled and legally incompetent. At the time Velez fell

, there were no safety or

fall

- protectio n devices in place on the roof

. Gill testified that no Shafer employee or

represen tative was present at the work site, but testimony establishes that numerous Shafer

agents were nearby at the industrial park while Gill and his crew were working

.

Plaintiff brought suit in June 2017, asserting claims for premises liability and common

wor k area liability. After discovery was completed, defendants moved for summary disposition under MCR 2.116(C)(10). In June 2018, t he trial court issued a written opinion and order granting defendants’ motion. Regarding the premises

- liability claim, the t rial court found no genuine issue of material fact that the condition of the roof was open and obvious and that defendants had no reason to foresee that Gill would fail to take necessary precautions to guard against the “danger of being on a roof.” With r espect to the common work area doctrine, the court concluded that plaintiff failed to establish a question of fact as to whether the danger created a high degree of risk to a significant number of workmen in a common area. The court denied plaintiff’s mot ion for reconsideration and its motion to amend the complaint to add a claim of “active negligence” against defendants.

1 The building was leased to defendant Hensley Manufacturing, Inc., who was granted summary disposition.- 3

- II. ANALYSIS

A. PREMISES LIABILI TY

Plaintiff first argues that the trial court erred in granting defendants, in their capacity as owners of the building, summary disposition of the premise s

- liability claim . We agree. 2

There is no dispute that Velez was on defendants’ premises as an invitee, i.e., a person “who enter[ed] the premises at the owner’s express or implied invitation to conduct business concerning the owner[.]” Butler v Ramco

- Gershenson, Inc , 214 Mich App 521, 532; 542 NW2d 912 (1995). “[A] landowner owes a duty to use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions on the owner’s land.” Hoffner v

Lanctoe , 492 Mich 450, 460; 821 NW2d 88 (2012). “ However, where the dangers are known to

the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee. ” Riddle v McLouth Steel Prod Corp , 440 M ich 85, 96; 485 NW2d 676 (1992). But i f there are “special aspects” that make an open and obvious condition unreasonably dangerous, a landowner “ has a duty to undertake reasonable precautions to protect invitees from that risk. ” Lugo v Ameritech Corp, In c , 464 Mich 512, 517; 629 NW2d 384 (2001).

The trial court found that summary disposition of the premises

- liability claim was required by Perkoviq v Delcor Home

- Lake Shore Pointe, Ltd , 466 Mich 11; 643 NW2d 212 (2012). In that case, the plaintiff was “ wo rking on the roof of a home under construction when he slipped on ice or frost that had formed on the roof, falling approximately twenty feet to the ground and suffering serious injuries. ” The defendant was both the owner and general contractor of the pro perty. Id

. at 12

. Applying the open and obvious danger doctrine, the Supreme Court

held that the defendant

, as an owner, was entitled to summary disposition of the premises

liability claim

. Id . at 18. The Court reasoned as follows:

In its status as owner, defendant had no reason to foresee that the only persons who would be on the premises, various contractors and their employees, would not take appropriate precautions in dealing with the open and obvious conditions

2 We review de novo a trial court ’ s decision to grant or deny a motion for summary disposition.

Cichewicz v Salesin , 306 Mich App 14, 21; 854 NW2d 901 (2014). “ A motion brought under MCR 2.116(C)(10) tests the factual support for a party ’ s claim. ” Maiden v Rozwood , 461 Mic h 109, 120; 597 NW2d 817 (1999) . When address ing a motion for summary disposition brought under subrule (C)(10), th e c ourt must ex amine all documentary evidence presented to it, and drawing all reasonable inferences in favor of the nonmoving party, determine whether a genuine

issue of material fact exists. Dextrom v Wexford Co , 287 Mich Ap p 406, 430; 789 NW2d 211 (2010)

.- 4

- of the constructi on site. There were no special aspects of this condition that made the open and obvious risk unreasonably dangerous. [ Id . at 18. 3 ]

P laintiff argues that this case is distinguishable from Perkoviq because there is a question

of fact whether defendants had reason to anticipate that Gill would not take appropriate safety

measures. Viewing the evidence in a light most favorable to plaintiff, we agree.

Defendants note that Gill was an experienced roofer who had provided satisfactory work

for them in the p ast. It is highly relevant whether Gill used appropriate safety measures during the prior jobs for defendants and what defendants knew of those measures. Unfortunately, the record is not as developed on those matters as one would hope. That said, there are multiple

indications in the record that defendant s knew or had reason to know that Gill would fa i l to employ safety precautions

. Gill testified that there was not anything unusual about the roofing job at issue

, allowing for the inference that Gill did not typically provide fall protection for his day laborers

. The record also indicates that when Richard, Gill, and Richard ’s son Raymond

Shafer met to discuss the accident shortly after it happened

, there was no indication that the Shafers were surpri sed to learn that Gill failed to take required safety precautions

. 4 A reasonable

3 The dis sent focuses on Perkoviq’s language that the roof was not unreasonably dangerous but ignores that the Court also repeatedly stated that the owner had no reason to know that appropriate precautions would be not be taken. See Perkoviq , 466 Mich at 18

- 19. A lthough not expressly stated, Perkoviq indicates that the lack of safety precautions, and the owner’s knowledge thereof, renders a roofing job unreasonably dangerous for purposes of a premises

liability claim. In any event, the Court’s statements regardin g the foreseeability of necessary precautions were clearly necessary to its resolution of the case and not mere dicta. Accordingly, they constitute binding precedent. See Auto

- Owners Ins Co v All Star Lawn Specialists Plus,

Inc , 497 Mich 13, 21 n 15; 857 NW2d 520 (2014).

4 In relevant part, Raymond provided the following testimony about that conversation:

Q . Anything else discussed at that time?

A

. Speculation of what happened.

Q . And who speculated? Larry, your dad, you, all of you, none of you?

A . How do you fall off a roof? That’s what was speculated. A roofer doesn’t fall

off a roof.

Q . Okay. Anything else that sticks out in your mind about the conversation?

A . His shoe being 50 feet away. Was there a bee. I don’t know. I don’t know.

S peculation. Disgust.

Q . Anything else stick out in your mind about the conversation?

A . No.- 5

- inference is that defendants knew or ha d reason to know that Gill was not using fall protection

. Moreover, the re was evidence that defendant s were paying Gill substantially less than what an

“established” roofing contractor would charge. This indicates that Gill ha d less costs and requirements than other roofers , and was therefore more likely to forego the time and expense required to implement fall protection.

In sum, Gill was hired to finish a roofing project that was largely completed by

defendants. Defendants chose Gill in part because he cost substantially less than established , i.e., licensed and insured, roofers

. Defendants worked with Gill multiple times in the pas t, although the record is silent regarding his use of safety precautions for those jobs

. However, Gill’s testimony was that there was nothing unusual about his work in this case. It could be inferred

from Raymond’s testimony that defendants presumed that safety measures were not being used, or were not surprised to learn that fact. Further, the work was being done on defendants’

property over the course of two days with several of their agents and employees on the surrounding premises. W hile the jury ma y ultimately agree with the dissent’s view of the case,

we conclude that reasonable minds could find that defendant s knew or had reason to know that

Gill w ould not take necessary safety precautions while installing the roofing membrane

. See

West v Gen Mot ors Corp , 469 Mich 177, 183; 665 NW2d 468 (2003) ( “ A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” ). Accordingly, the tr ial court erred in granting defendants summary disposition of the plaintiff ’s claim of premises liability. 5

See Perkoviq , 466 Mich at 18

- 19.

B. COMMON WORK AREA

Next, plaintiff contends that the trial court erred when it granted summary disposition to
defendants , in their capacity as general contractor, of plaintiff’s claim under the common work

area doctrine . We disagree.

“At common law, property owners and general contractors generally could not be held liable for the negligence of independent subc ontractors and their employees.” Ormsby v Capital Welding, Inc , 471 Mich 45, 48; 684 NW2d 320 (2004). In Funk v Gen Motors Corp , 392 Mich 91, 104; 220 N W 2d 641 (1974)

, overruled in part on other grounds by Hardy v Monsanto

Enviro

- Chem Systems, Inc , 414 M ich 29; 323 NW2d 270 (1982)

, the Supreme Court created an exception to this rule called the common work area doctrine. A claim of negligence under the doctrine requires the plaintiff to prove:

The lack of safety precautions is an obvious answer to Raymond’s question about how a roofer

would fall from a roof. Yet his summary of the post

- fall discussion indicates that the lack of safety measures was presumed, and that the “[d]isgust” was focused on Velez.

5 As an alternative ground for affirmance, defendants argue that they are entitled to summary disposition because plaintiff does not know what caused Velez to fall off the roof. However, regardless of what caused the fall, appropriate safety protections would have prevented it. Thus the term “fall protection.”- 6

- (1) that the defendant contractor failed to take reasonable st eps 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 workmen (4) in a common work area. [ Ormsby , 471 Mich at 57.]

A plaintiff’ s failure to establish any one of these four elements is fatal to a Funk claim. Id

. at 59

n 11.

Plaintiff argues that the trial court erred in concluding that there were not a significant number of workers subject ed to working at heights without fall pro tection . The common work area doctrine applies “ where employees of a number of subcontractors were all subject to the

same risk or hazard.” Hughes v PMG Bldg, Inc , 227 Mich App 1, 6; 574 NW2d 691 (1997). Hughes advised that four workers was an insufficient amount to constitute a significant number.

Id . at 8

- 9

. T he Supreme Court has held that “two to six employees of one subcontractor” was not a significant amount of workers. Alderman v JC Dev Communities, LLC , 486 Mich 906 , 906 (2010).

Here, the record evidence indicates that Gill’s roofing crew numbered seven people including Gill and plaintiff. Plaintiff identified defendants’ employees that installed the decking and insulation on the roof of the building, but those workers do not count because they were not employees of subcontractor s

. Further, as will be discussed below, the record indicates that those employees used fall protection. There is some evidence that a plumber per formed work on or

near the ro of. But plaintiff was not able to identify the plumber, the day the plumber worked, or whether the plumber used fall protection . Thus, plaintiff failed to present evidence that the plumber was subjected to the same hazard as Gill’s workers

. Accordingly, plaintiff did not establish a genuine issue of material fact with regard to the third element of the common work

area doctrine because seven workers of one subcontractor d o es not amount to a significant

number for purposes of the comm on work area doctrine

. See Alderman , 486 Mich at 906

.

C. NEGLIGENCE

Finally, p laintiff contends that the trial court erred when it denied her request for leave to

amend the complaint to add a claim of active negligence against defe ndants in their capacity as general contrac tor . Because the proposed amendment was futile, we affirm the trial court. 6

When a trial court grants a motion for summary disposition under MCR 2.116(C)(10), it

“ must give the parties an opportunity to amend their pleadings pursuant to MCR 2.118, unless

the amendment would be futile. ” Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co , 324

6 We review for an abuse of discretion a trial court’s decision whether to grant leave to am end a complaint. Weymers v Khera , 454 Mich 639, 654; 563 NW2d 647 (1997). A trial court abuses its discretion when it selects an outcome that falls outside the range of reasonable and principled

outcomes. In re Kostin Estate , 278 Mich App 47, 51; 748 NW 2d 583 (2008).- 7

- Mich Ap p 182, 209; 920 NW2d 148 (2018) (quotat ion marks and citation omitted), An amendment to a pleading “ is futile if it merely restates the allegations already mad e or adds allegations that still fail to state a claim. ” Lane v KinderCare Learning Ctrs, Inc , 231 Mich App 689, 697; 588 NW2d 715 (1998)

.

“ It is well

- established that a prima facie case of negligence requires a plaintiff to prove four elements: duty, br each of that duty, causation, and damages. ” Fultz v Union

- Commerce

Associates , 470 Mich 460, 46 3 , 683 NW2d 587 (2004)

. The common law “ imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so

govern his actions as not to unreasonably endanger the person or property of others.” Heaton v

Benton v Harbor Co , 286 Mich App 528, 536; 780 NW2d 618 (2009) (quotation marks and citation omitted).

P laintiff claims that defendants were actively negligent when t hey removed a fall protection anchor point from the roof. Plaintiff relies on evidence that employees of Shafer

Builders installed and then removed the anchor point that they were using while installing the roof decking after they had completed their port ion of the work. Defendants counter that the removal of the anchor point does not support a claim of negligence because it did not create a new hazard. We agree with defendants.

There may be instances where a general contractor performs its part of the work negligently, thereby endangering subsequent subcontractors . But, here, defendants only removed the safety measures that they were using. So plaintiff’s proposed negligence claim amounts to an
assertion that defendant s were responsible for providing fall protection for Gill and his workers. However, “ each subcontractor is generally held responsible for the safe op eration of its part of the work,” and a general contractor only has the responsibility to provide job safety for

subcontractors if the comm on area work doctrine is applicable

. See Hughes , 227 Mich App at 8

- 9. As discussed, plaintiff’s claim of a common work area fails as a matter of law. Thus, the proposed amended complaint seeking to hold defendants liable for not providing fall protectio n

to Gill and his workers was futile. For that reason, we affirm the trial court. 7

A ffirmed in part, reversed in part, and remanded for proceedin gs consistent with this opinion. We do not retain jurisdiction.

/s/ Karen M. Fort Hood /s/ Douglas B. Shapiro

7 T he trial court based its ruling on the conclusion that the motion was procedurally deficient, but we may affirm the trial court when it reaches the right result for the wrong reason. Gleason v Dep’t of Transp , 256 Mich App 1, 3; 662 NW2 d 822 (2003).