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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UNPUBLISHED 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: MURPHY, P.J., and WILDER and BORRELLO, JJ. 

PER CURIAM. 

 Plaintiffs, a mason tender who was injured at a construction site and his wife, appeal as of 

right the trial court’s order granting summary disposition in favor of defendants, the general 

contractors in charge of the construction project, under MCR 2.116(C)(10) (no genuine issue of 

material fact). We reverse and remand for further proceedings.

I. FACTS 

 The order appealed set forth the underlying facts that are not in dispute (parentheticals 

omitted): 

 On August 9, 2010, [plaintiff1

] was injured when he fell approximately 35 

to 40 feet from a scaffold . . . . [Plaintiff] was a union mason tender working for 

Leidal & Hart Mason Contractors, Inc. Leidal & Hart was selected by Better Built 

Construction Services, Inc.[,] to construct the masonry walls for 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 derivative in nature, references in this opinion to the singular “plaintiff” 

will pertain exclusively to Ronnie Dancer. 
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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 alleging Defendants were 

negligent in supervising site safety. 

 Plaintiff testified in his deposition that the accident left him without memory of the 

particulars of his fall, but in their brief on appeal plaintiffs describe, and cite exhibits 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 unsecured planks, suggesting that 

this was a makeshift arrangement where more sophisticated and safer equipment could have been 

used. This account comports with the description provided in the deposition of an apprentice 

electrician who worked on the project as the employee of a different subcontractor. The 

apprentice electrician testified that there were three scaffolding units, with the space between 

them connected “by 2x12s,” and that workers stood on those planks with nothing under them to 

bridge those gaps. The apprentice electrician added that the arrangement of overlapping planks 

was never secured up to the time plaintiff fell. Plaintiffs further assert, and cite deposition 

testimony showing, that standards intended to protect workers from 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 summary disposition, the trial court 

cited authorities to establish that plaintiffs’ theory of recovery required operation of the doctrine, 

with the court concluding that plaintiffs failed to offer evidence sufficient to create a genuine 

issue of material fact concerning satisfaction of two of the elements required for its invocation. 

II. STANDARD OF REVIEW AND SUMMARY DISPOSITION PRINCIPLES 

 This Court reviews de novo a trial court’s decision on a motion 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 applicability 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 moving 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)(10) if the 

pleadings, affidavits, and other documentary evidence, when viewed 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 when the record, 

giving the benefit of reasonable doubt to the opposing party, leaves open an issue 

upon which reasonable minds might differ. The trial court is not permitted to 

assess credibility, weigh the evidence, or resolve factual disputes, and if material 

evidence conflicts, it is not appropriate to grant a motion for summary disposition 
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under MCR 2.116(C)(10). A court may only consider substantively admissible 

evidence actually proffered relative to a motion for summary disposition 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 limited exception in connection with 

construction projects: 

 “We regard it to be part of the business of a general contractor to assure 

that reasonable steps within its supervisory and coordinating authority are taken to 

guard against readily observable, avoidable dangers in common work areas which 

create a high degree of risk to a significant number of workmen.” [Id. at 53-54 

(citation omitted).] 

Practical considerations underlying the common-work-area doctrine include that “ ‘even if subcontractors and supervisory employees are aware of safety violations they often are unable to 

rectify the situation themselves and are in too poor an economic 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-work-area doctrine against a general contractor “must 

show that (1) the defendant . . . 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 workmen (4) in a common work area.” 

Ormsby, 471 Mich at 54. 

 In this case, the trial court held that plaintiff “presented evidence that could create a 

genuine issue of material fact regarding whether there was an existence of a readily observable, 

avoidable danger,” thus expressly concluding that plaintiffs satisfied their evidentiary burden 

with respect to the second element, and impliedly concluding that this applied also to the first 

element at least with respect to the second. But the trial court further held that “there was not a 

high degree of risk to a significant number of workers and there was not an existence of a 

common work area,” thus concluding that plaintiffs failed to provide 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 subcontractors working on the same 

site at the same time.” Id.

 In this case, the trial court recognized that the evidence indicated that “subcontractors 

other than Leidal & Heart [sic] did use [the] scaffold at times,” but ruled that the required 
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commonality did not exist because when plaintiff fell the scaffold 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 reached a height above 20 feet.”2

 In championing the court’s reasoning, defendants rely on a federal case, applying 

Michigan law, for the reasonable proposition that a work area can 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 becomes a point at which 

there is no longer a “high degree of risk to a significant number 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 that 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, even if lesser, elevations. 

 One such lesser but still-dangerous elevation is the 20 or 25 feet at which the apprentice 

electrician testified he had operated. Further, the foreman for a plumbing subcontractor testified 

in his deposition that he had used 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 substantially to the degree of risk that a falling hazard presents.3

 For these reasons, we conclude that the trial court erred in concluding that the scaffold 

was not a common work area when plaintiff fell solely because plaintiff fell from an elevation 

that only he and his fellow Leidal & Hart employees reached. 

 

 

2

 In fact, the above-referenced apprentice 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 only plaintiff and other employees of Leidal & Hart went higher than 

20 feet, it leaves intact the court’s observation that the evidence indicated that only plaintiff and 

his colleagues approached the height from which plaintiff fell.

3

 The evidence in this case includes excerpts from a manual of safety 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 applies. Were it necessary to determine 

the precise height at which the elevation would be deemed a factor substantially increasing the 

risk of serious injury in the event of a fall, taking guidance from that manual would recommend 

six feet. 
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B. HIGH DEGREE OF RISK TO A SIGNIFICANT NUMBER OF WORKERS 

 In concluding that the evidence did not support the proposition that the allegedly 

hazardous condition placed a significant number of workers at risk, the trial court stated as 

follows: 

 Plaintiff was the only one on the scaffold. The only other worker in the 

area was on a crane. Thus, no other workers were in danger at the time of 

Plaintiff’s injury. Plaintiff created the dangerous condition when he chose not to 

wear his fall protection device and when he improperly overlapped the planks. 

Therefore, Plaintiff has not established a genuine issue of material fact to show 

that a significant number of workers were exposed to the risk. 

The court thus rejected both facets of this element, having concluded that plaintiff, not 

defendants, were responsible for the condition leading to plaintiff’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 fall-protection device, and that the poorly positioned planks posed a 

danger in connection with too few workers to be actionable under the common-work-area 

doctrine. 

1. SIGNIFICANT NUMBER OF WORKERS 

 There was in fact conflicting evidence concerning whether plaintiff 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 leave the site because of progressively 

heavy rain, leaving no one in the work area 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 thus erred in stating, as if established 

fact, that plaintiff was alone on the scaffold when he fell. Of greater significance, however, is 

that the court apparently confined its consideration of how many persons were exposed to the 

dangerous condition at issue to persons working alongside plaintiff 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 when the plaintiff is injured; not after construction has been 

completed,” 471 Mich at 60 n 12, from which the court apparently concluded that only persons at 

risk at the moment of the accident bear on the question. But the 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 project in isolation from other 

workers and a situation 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, 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 the course of the construction project. 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 all other times, but rather that it 

was distinguishing the risks present when the accident occurred as part of the ongoing 
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construction project from conditions in place as of the completion of the project. In other words, 

the Court was calling for differentiation between the characteristics of the construction site from 

those of the finished project. 

 The United States Court of Appeals for the Sixth Circuit, applying Ormsby, Hughes,

Candelaria, and other Michigan caselaw, persuasively4 held that “the common-work-area 

determination is not confined to a snapshot in time,” that “ ‘when the plaintiff is injured’ refers to 

the time period during the ongoing construction—not to a specific moment,” and thus that “[t]he 

length of the relevant time period 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 scaffolding when he fell has little 

bearing. At issue is whether the evidence of all workers operating on the allegedly defective 

scaffolding during the ongoing construction 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 electrician 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 while they were about 10 feet off 

the ground. This testimony placed into evidence that one and possibly two workers not under 

Leidal & Hart’s auspices were placed at risk by the hazard at issue. The apprentice electrician 

additionally testified that caulking contractors used the scaffolding; although he was unsure if the 

caulkers were a subset of the masons, he nonetheless put into evidence that still other workers 

were exposed to the hazard. 

 Further, a worker whose duties for the project included helping Better Built learn how to 

tend to such large projects stated in his deposition that workers who “could have been” upon the 

scaffolding at some time included “the iron workers,” “maybe the electricians,” and the 

“mechanical guys” whose work involved heating and air conditioning. Additionally, the aforementioned foreman for the plumbing subcontractor testified that he had used the scaffold at 

heights up to 14 feet, and added that he frequently observed the electricians using it as well. 

 The trial court observed that the caselaw does not specify a minimum 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 take 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 for, 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 open if it thought that the “rough 

estimate” of a dozen such workers the dissent identified, id. at 121 (KELLY, J., joined by 

 

4

 “Although lower federal court decisions may be persuasive, they are not binding on state 

courts.” Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004). 
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CAVANAGH, J., dissenting), was not sufficient as a matter of law. In this 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 included several masons, multiplicities of 

electricians, iron workers, and heating and cooling workers, along with one employee of the 

plumbing subcontractor, established 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 discounted the existence of an issue over the existence of a high 

degree of risk of avoidable danger attributable to defendants on 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 required 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 fall testified that “there were 

guardrails on the foot plank,” and that one of plaintiff’s tasks was to “make sure the safety rails 

were in place.” A bricklaying foreman testified that workers were 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 there was any opening in the 

platform from which plaintiff fell until plaintiff dislodged a plank with his weight. Plaintiff, 

when asked during his deposition 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 Michigan Occupational Safety and Health Administration testified 

that plaintiff was not required to wear fall protection while standing upon properly placed planks, 

but that “in the process of replacing them is when the fall protection 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 (2005). 
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 Plaintiffs support their assertion that a cavalier attitude about fall protection prevailed at 

the construction project by pointing to deposition testimony variously describing workers’ 

gaining access to the elevated platform of the scaffolding by climbing 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 project 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 plaintiff 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, including [plaintiff], would not be 

required to wear fall protection.” Then, when asked if there was an opening in the planking 

when plaintiff fell, the safety director replied, “I can’t answer that. I wasn’t there.” 

 For these reasons, we conclude that the testimony concerning whether 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 moment called for engaging additional 

fall protection, presents issues of duty, breach, and comparative negligence for resolution at trial. 

b. RESPONSIBILITY FOR FAULTY PLANKING 

 Plaintiffs argue that a factual question exists concerning whether 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 the Hydro-Mobile and get it ready for 

the next day,” adding that sometimes a height adjustment required moving the planks. The 

foreman answered in the affirmative when asked if he discussed the matter with plaintiff “before 

he went back up there to move the planking.” 

 The crane operator who observed plaintiff’s fall, while examining 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 elaborated, “these two plank[s] that he 

moved were no longer overlapped here, but the plank[s] underneath were sticking out and . . . 

that’s basically why he went down. Because the plank[s] underneath 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 just give ‘em brick and block and mud, that’s all I had to do on 

this job.” Asked of his involvement with the scaffolding in the 30 days before his accident, 

plaintiff stated the he walked on it, but had nothing to do with erecting that structure. 

 Plaintiffs characterize the latter testimony as indicating that plaintiff’s responsibilities did 

not include raising the work platforms, and suggest that this throws into doubt the accounts of his 
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having moved any of the planks. But, although the evidence indicates that the planks often had 

to be adjusted as the scaffolding was raised or lowered, that does not mean that a person moving 

planks for that purpose was necessarily otherwise involved in adjusting the height of the work 

surface. The evidence thus appears unrebutted that plaintiff moved some of the planks 

constituting the work surface just before he fell. 

 However, that does not necessarily mean that plaintiff’s own manipulation of the planks 

created a hazard unique to the time of his fall. The deposition testimony of the single eyewitness 

does not clearly indicate if plaintiff’s activities involving the planks turned a safe work surface 

into a dangerous one, if they merely restored an inherently dangerous structure to its original 

form, or if they aggravated to some degree the dangers inherent in the structure. 

 Both defendants argue that the lack of similar spills in the hours before plaintiff’s fall 

itself indicates that the scaffolding offered a safe work surface until plaintiff started modifying it 

just ahead of his fall. We decline the invitation to adopt the presumption that a safety hazard 

comes into existence only upon claiming 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 evidence of an earlier nearoccurrence of a similar fall belies the suggestion that plaintiff himself created a uniquely 

dangerous condition, and suggests that the work surface in question, with its reliance on 

unsecured planks to bridge gaps, where frequent adjustment of the 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 plaintiff’s own role in 

rendering dangerous the surface from which he fell presents questions of duty, breach, and 

comparative negligence for resolution at trial.6

IV. CONCLUSION 

 The trial court erroneously failed to recognize questions of material 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 absolved defendants of liability. We 

 

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 Both defendants argue, as an alternative basis for affirmance, that, contrary to the trial court’s 

conclusion, the evidence did not show the existence of a readily observable danger. In so 

arguing, defendants rely on their theory that plaintiff’s own rearranging of the planks just ahead 

of his fall created the actual hazard causing the fall. We gather that the trial court properly 

viewed the bridging of the gaps between the scaffolding units with unsecured planks as itself 

potentially constituting an actionable hazard, on the ground that such allegedly unstable structure 

might continuously present heightened risks of accidents of the sort that took place. 
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therefore reverse the order granting summary disposition to defendants and remand this case to 

the trial court for further proceedings consistent with this opinion. 

 Reversed and remanded. We do not retain jurisdiction. Having fully prevailed on 

appeal, plaintiffs are awarded taxable costs under MCR 7.219. 

/s/ William B. Murphy 

/s/ Stephen L. Borrello