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

MAX DITMORE,

Plaintiff-Appellant,

UNPUBLISHED

January 5, 2023

v No. 357220

Wayne Circuit Court

MAJOR CEMENT COMPANY, LC No. 19-008366-NI

Defendant/Cross-Plaintiff-Appellee,

and

IMPERIAL CONSTRUCTION COMPANY,

Defendant-Appellee,

and

IMPERIAL PROPERTIES MANAGEMENT, LLC,

Defendant/Cross-Defendant-Appellee,

and

JAMES PHILLIPS, JR.,

Defendant.

Before: M. J. KELLY, P.J., and MURRAY and RIORDAN, JJ.

PER CURIAM.

Plaintiff Max Ditmore appeals as of right, challenging the trial court’s opinion and order 

granting summary disposition in favor of defendants Major Cement Company (“Major Cement”), 

Imperial Construction Company (“Imperial Construction”), and Imperial Properties Management, 
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LLC (“Imperial Properties”), pursuant to MCR 2.116(C)(10) (no genuine issue of material fact).1 

Plaintiff challenges the trial court’s dismissal of his premises liability claims against all three 

defendants, and the dismissal of his claim to hold Major Cement vicariously liable for the alleged 

negligence of its employee, James Phillips, Jr. We affirm the trial court’s dismissal of the vicarious 

liability claim against Major Cement, but reverse the trial court’s dismissal of the premises liability 

claims against all three defendants and remand to that court for further proceedings on those 

claims.

I. FACTS

This case arises out of an accident in which a vehicle driven by Phillips struck plaintiff

from behind while plaintiff was walking on Major Cement’s premises. On December 27, 2017, at 

approximately 7:45 a.m., plaintiff delivered a load of sand to Major Cement’s facility on Helen 

Street in Detroit. Plaintiff backed the truck into the designated location to dump the sand. He had 

to exit the truck to release the tailgate to dump the load. However, a valve was frozen and would 

not release to dump the sand. Plaintiff walked across the lot, making sure to watch his step because 

it was icy, and entered the building to ask a mechanic for help with the valve. After plaintiff spoke 

with an employee who agreed to come out and help, he went back outside and began to walk across 

the lot toward his truck. The area which he walked across was covered with ice. While walking 

back to his truck, plaintiff was struck from behind by a pickup truck driven by Phillips. 

Phillips was a Major Cement employee who was arriving to begin work that day, but he 

had not yet started his shift. Phillips had pulled into the lot at Major Cement’s facility and was 

driving toward the employee parking area. Phillips testified that it was cold and the roads were 

icy. He testified that he immediately hit his brakes when he saw plaintiff, but he was unable to 

stop his truck because of the icy driveway. Phillips said that he shifted into park in an attempt to 

stop the truck, but it kept going and struck plaintiff. 

Plaintiff brought this action and asserted a claim against Phillips for negligence and alleged 

that Major Cement was vicariously liable for Phillips’s negligence. Plaintiff also asserted claims 

against Major Cement, Imperial Construction, and Imperial Properties for premises liability, 

arguing that the icy conditions on their property caused the accident. The trial court dismissed 

plaintiff’s claims, holding that Major Cement was not vicariously liable for Phillips’s actions 

because Phillips was not acting within the scope of his employment at the time of the accident, 

and that plaintiff could not establish a claim for premises liability because his injuries resulted 

from an automobile accident, not a condition of the land. 

II. STANDARD OF REVIEW

A trial court’s decision on a motion for summary disposition is reviewed de novo. Maiden 

v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The trial court granted defendants’

motions under MCR 2.116(C)(10), which provides that a court may grant summary disposition in 

 

1 To the extent that the opinion and order was not a “final order” appealable as of right for the 

purposes of MCR 7.203(A)(1), we treat the claim of appeal as an application for leave to appeal 

and grant it. See MCR 7.205(E)(2). 
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favor of the moving party when, “[e]xcept as to the amount of damages, there is no genuine issue 

as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter 

of law.” A genuine issue of material fact exists when the evidence presented “leave[s] open an 

issue upon which reasonable minds might differ.” Debano-Griffin v Lake Co, 493 Mich 167, 175; 

828 NW2d 634 (2013) (quotation marks and citation omitted). Summary disposition is appropriate 

where the proffered evidence fails to establish a genuine issue regarding any material fact and the 

moving party is entitled to judgment as a matter of law. Maiden, 461 Mich at 120. 

III. PREMISES LIABILITY

Plaintiff argues that the trial court erred by dismissing his premises liability claims. The 

trial court ruled that plaintiff could not establish a claim for premises liability because it was 

undisputed that plaintiff’s injuries were caused by an automobile accident, and thus they did not 

result from a condition of the land. We disagree that plaintiff is precluded from establishing a 

premises liability claim as a matter of law. 

In his complaint, plaintiff alleged that Phillips was unable to maintain control of his vehicle 

and struck plaintiff as a direct result of the unsafe condition of the icy parking lot, and that Major 

Cement, Imperial Construction, and Imperial Properties had a duty to maintain the premises in a 

reasonably safe condition for invitees and knew or should have known that the parking lot was not 

reasonably safe for invitees. Major Cement, Imperial Construction and Imperial Properties argued 

that plaintiff’s theory of premises liability should be dismissed because the gravamen of plaintiff’s 

complaint asserted a claim for automobile negligence. Defendants correctly assert that courts are 

not bound by the labels that parties attach to their claims. Buhalis v Trinity Continuing Care Servs, 

296 Mich App 685, 691; 822 NW2d 254 (2012). Rather, courts determine the gravamen of an 

action by reading the complaint as a whole, and not relying on procedural labels to determine the 

exact nature of the claim. Id. at 691-692. 

A premises liability action arises when a plaintiff’s injuries arise from a condition of the 

land. James v Albert, 464 Mich 12, 18-19; 626 NW2d 158 (2001). In James, the plaintiff was 

helping a neighbor dig a trench when he was injured. Id. However, the plaintiff claimed that his 

injuries were not caused by the activity itself, but by a condition of the land when he tripped over 

a partially buried cable. Id. at 13-14, 19. Our Supreme Court held that the gravamen of the 

plaintiff’s claim was premises liability. Id. at 18-19. 

In Laier v Kitchen, 266 Mich App 482, 493; 702 NW2d 199 (2005), this Court held that a 

plaintiff may bring both a premises liability claim and an ordinary negligence claim if the claims 

are grounded on independent theories of liability. In that case, the decedent, Rodney Laier, was 

killed on the defendant’s property while assisting the defendant with repairs to a front-end loader

of a tractor. Id. at 484. During the repair, the bucket on the loader dropped and killed Laier. Id. 

The plaintiff asserted a claim against the defendant for ordinary negligence, claiming that the 

defendant “ ‘owed a duty to Rodney to use due care and caution in the operation and control of the 

bucket.’ ” Id. at 493. The defendant’s conduct was an alleged basis for liability that was 

independent of premises liability. Id. This Court further held, however, that the trial court erred 

by dismissing the plaintiff’s separate claim for premises liability. This Court noted that “[i]n 

addition to the duty owed concerning conduct, plaintiff alleged a duty based on Rodney’s status 

as an invitee, i.e., a duty to protect Rodney from an unreasonable risk of injury known to defendant 
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and to warn Rodney about those risks,” which supported a claim of premises liability. Id. at 497. 

This Court reversed the trial court’s dismissal of the plaintiff’s premises liability claim because of 

the trial court’s “erroneous subjective analysis of the open and obvious danger issues.” Id. at 500. 

The significance of this Court’s decision in Laier is that it recognizes that independent claims for 

ordinary negligence and premises liability may both be brought where each claim is based on an 

independent theory of liability, one involving an actor’s conduct, ordinary negligence, and the 

other involving a condition of the land, premises liability. 

In his first amended complaint, plaintiff alleged that Phillips “had a duty to operate his 

motor vehicle with due care for others on the premises.” Phillips’s “conduct was thus an alleged 

basis of liability, independent of premises liability.” Id. at 493. Plaintiff further alleged, however, 

that Major Cement, Imperial Construction, and Imperial Properties had possession and control of 

the property, and therefore, “had a duty to maintain the premises so that they were reasonably safe 

for invitees.” Plaintiff also alleged that the parking lot was “covered with ice” and that “the 

condition of the parking lot would render operation of motor vehicles on it unsafe and potentially 

hazardous to pedestrians[.]” Like the plaintiff in Laier, plaintiff brought two claims, each 

grounded in independent theories of liability, one supporting a claim for ordinary negligence and 

one supporting a claim for premises liability. See also Goodwin v Northwest Mich Fair Ass’n, 325 

Mich App 129, 136; 923 NW2d 894 (2018) (explaining that the plaintiff was allowed to proceed 

at trial on separate claims for “negligence” and premises liability where a child decedent was struck 

by a truck on the defendant’s service drive and the plaintiff’s “basic theory of the case was that the 

service drive was unreasonably dangerous because defendant allowed motor vehicle traffic on a 

path used by pedestrians and bike riders”). 

In sum, a plaintiff can maintain a claim for premises liability where the plaintiff suffers 

injuries in an automobile accident if the premises liability claim is grounded on an independent 

theory of liability based on a condition of the land. In this case, plaintiff alleged in his complaint 

that the accident was caused by the icy condition of the parking lot, which rendered the premises 

unreasonably dangerous, and Phillips testified that he was unable to stop his truck because of the 

icy driveway. Thus, plaintiff sufficiently alleged a theory of liability based on a condition of the 

land and established factual support for that theory. Accordingly, the trial court erred by ruling 

that plaintiff could not bring a premises liability claim because his injuries were the result of an 

automobile accident. Plaintiff should have been allowed to pursue a premises liability claim in 

addition to an ordinary negligence claim because the premises liability claim was grounded on an 

independent theory of liability stemming from a condition of the land, Laier, 266 Mich App at 

493, and plaintiff demonstrated factual support for this independent theory of liability. 

Accordingly, we reverse the trial court’s dismissal of plaintiff’s premises liability claims. 

We recognize that there are unresolved issues concerning each defendant’s possession and 

control of the land where the accident occurred and whether the open and obvious doctrine may 

operate to relieve defendants of liability for any premises liability claim. Because these issues 

were not addressed or decided by the trial court, we do not address them here. See Wallad v Access 

BIDCO, Inc, 236 Mich App 303, 308; 600 NW2d 664 (1999). Rather, we remand to the trial court 

for further proceedings on the premises liability claims consistent with this opinion. 

IV. VICARIOUS LIABILITY
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Plaintiff argues that the trial court erred by dismissing his vicarious liability claim. Plaintiff 

argues that Major Cement should be vicariously liable for Phillips’s negligence because Phillips 

was Major Cement’s employee and the accident occurred while Phillips was on Major Cement’s 

property. We disagree. 

Michigan courts have imposed liability on employers for the wrongful acts of their 

employees, reasoning that while an employee is performing a duty within the scope of his 

employment and for the benefit of his employer, the employer should be held responsible for the 

employee’s actions. Rogers v J B Hunt Transp, Inc, 466 Mich 645, 651; 649 NW2d 23 (2002). 

However, Michigan courts do not impose vicarious liability “for acts committed by its employees 

outside the scope of employment, because the employee is not acting for the employer or under 

the employer’s control.” Id. Accordingly, “the rationales that support the imposition of vicarious 

liability on a master also support limiting such liability to conduct that occurs within the scope of 

employment.” Id. at 652.

In Hamed v Wayne Co, 490 Mich 1, 10-11; 803 NW2d 237 (2011), our Supreme Court 

discussed an employer’s vicarious liability for an employee’s conduct, explaining:

The doctrine of respondeat superior is well established in this state: An 

employer is generally liable for the torts its employees commit within the scope of 

their employment. It follows that an employer is not liable for the torts committed 

by an employee when those torts are beyond the scope of the employer’s business. 

This Court has defined within the scope of employment to mean engaged in the 

service of his master, or while about his master’s business. Independent action, 

intended solely to further the employee’s individual interests, cannot be fairly 

characterized as falling within the scope of employment. Although an act may be 

contrary to an employer’s instructions, liability will nonetheless attach if the 

employee accomplished the act in furtherance, or the interest, of the employer’s 

business. [Quotation marks, citations, and alteration omitted.]

Whether an employee was acting within the scope of his or her employment is generally 

for the trier of fact to determine, but may be decided as a matter of law when it is clear that the 

employee was acting to accomplish some purpose of his or her own. Bryant v Brannen, 180 Mich 

App 87, 98; 446 NW2d 847 (1989).

The general rule of law is that, in ordinary cases, injuries sustained by employees going to 

and coming from work are not incurred within the course of employment because an employer 

does not receive any special benefit from an employee’s travel to or from work. See Bush v 

Parmenter, Forsythe, Rude & Dethmers, 413 Mich 444, 451-452; 320 NW2d 858 (1982); Bowman 

v R L Coolsaet Constr Co, 275 Mich App 188, 191; 738 NW2d 260 (2007). We see no reason to 

deviate from this general rule in this case and therefore conclude that Major Cement was not 

vicariously liable for Phillips’s alleged negligence because Phillips was merely going to work that 

morning when the accident occurred. 

Plaintiff argues that this is not an ordinary case because Phillips had already arrived at his 

employer’s premises when the accident occurred. Plaintiff argues that this Court should rely on 

the rationale in MCL 418.301(3) to expand Major Cement’s vicarious liability in this instance, 
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given that Phillips was on his employer’s property when the accident occurred. This statute 

provides:

An employee going to or from his or her work, while on the premises where 

the employee’s work is to be performed, and within a reasonable time before and 

after his or her working hours, is presumed to be in the course of his or her 

employment.

MCL 418.301(3) is part of the Worker’s Disability Compensation Act (“WDCA”), MCL 

418.101 et seq., which is not applicable here because this case does not involve an employee 

seeking compensation from an employer for work-related injuries. Nonetheless, plaintiff argues 

that the rationale in MCL 418.301(3) has been applied in other cases. Plaintiff cites Hills v Blair, 

182 Mich 20; 148 NW 243 (1914), and Geibig v Ann Arbor Asphalt Constr Co, 238 Mich 560, 

562; 214 NW 90 (1927). Although those cases were decided before MCL 418.301 was enacted 

and involved employees who were injured while they were on their employer’s premises before or 

after working hours, they were decided in the context of worker’s compensation law and our

Supreme Court, considering the purpose of the law to promote and maintain a safe working 

environment for employees, was unwilling to apply an absolute rule limiting an employer’s 

liability to the period of time when an employee’s service at the employer’s workplace actually 

begins and ends. This case, however, does not involve an employee’s injuries at a workplace. As 

neither Hills nor Geibig involve an employer’s vicarious liability for injuries caused by an 

employee to a third party, those cases do not support plaintiff’s argument. 

Plaintiff’s reliance on cases applying worker’s compensation law also is misplaced. This 

Court discussed the purpose of the WDCA in Herbolsheimer v SMS Holding Co, 239 Mich App 

236, 240; 608 NW2d 487 (2000), stating:

The WDCA substitutes statutory compensation for common-law tort 

liability founded upon an employer’s negligence in failing to maintain a safe 

working environment. Under the WDCA, employers provide compensation to 

employees for injuries suffered in the course of employment, regardless of fault. In 

return for this almost automatic liability, employees are limited in the amount of 

compensation they may collect from their employer, and, except in limited 

circumstances, may not bring a tort action against the employer. [Quotation marks 

and citations omitted.]

In a worker’s compensation case, holding an employer responsible for injuries incurred on 

its premises while an employee is coming and going from work furthers the purpose of the WDCA 

to encourage an employer to keep the working environment safe for its employees. See id. 

Conversely, holding Major Cement vicariously liable for Phillips’s negligence simply because 

Phillips had entered Major Cement’s premises in preparation to begin his work for the day does 

not further the rationale behind holding employers vicariously liable for its employees’ conduct 

because Major Cement did not have the power or ability to control Phillips’s actions at the time 

the incident occurred. See Laster v Henry Ford Health Systems, 316 Mich App 726, 735; 892 

NW2d 442 (2016) (noting that “it is the power or ability of the principal to control the agent that 

justifies the imposition of vicarious liability” and that “it is this absence of control that explains 

why an employer is generally not liable for the actions of an independent contractor”). Further, 
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Major Cement was not receiving any special benefit from Phillips’s travelling onto its property as, 

at the time of the incident, Phillips was not acting in furtherance of Major Cement’s business 

interests. Bush, 413 Mich at 444; Bowman, 275 Mich App at 191. Additionally, plaintiff does not 

explain how the general rule that an employer does not receive any special benefit from an 

employee’s travels to or from work would not apply here, simply because Phillips had entered 

Major Cement’s property before beginning work. Bush, 413 Mich at 451-452. Thus, plaintiff 

offers no rationale for an extension of the WDCA to the matter before us. Accordingly, the trial 

court did not err by holding that Major Cement was not vicariously liable for Phillips’s alleged 

negligence. 

V. CONCLUSION

Affirmed in part, reversed in part, and remanded to the trial court for further proceedings 

consistent with this opinion. We do not retain jurisdiction. 

/s/ Michael J. Kelly 

/s/ Christopher M. Murray 

/s/ Michael J. Riordan