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No Liability for Owners and General Contractors When Alleged Danger Does Not Pose a Risk to a Significant Number of Workers

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Lindsey E. Smith & Andrew C. Vredenburg
Foster Swift Commercial Litigation News
Fall 2011

In a recent opinion, the Michigan Court of Appeals once again affirmed that an action may not be maintained under the common work area doctrine when the alleged danger does not expose a significant number of workers to a high degree of risk.  Kelly v Kohler, unpublished opinion per curiam of the Michigan Court of Appeals, issued October 27, 2011 (Docket No. 298880).

In Kelly, Plaintiff was hired to help finish construction on a residence defendant was having built.  On his first day at the work site, Plaintiff was injured when he fell from scaffolding while installing siding.  He brought suit against the property owners and the company that provided the scaffolding alleging, in part, the common work area doctrine. 

The common work area doctrine is an exception to the general rule that property owners and general contractors cannot be liable for the negligence of independent subcontractors.  A plaintiff alleging liability under the common work area doctrine must show:

  1. the defendant, either the property owner or the general contractor, failed to take reasonable steps within its supervisory and coordinating authority;
  2. to guard against readily observable and avoidable dangers;
  3. that created a high degree of risk to significant number of workmen;
  4. in a common work area.

The Court of Appeals focused on the third element and found no liability because plaintiff presented no evidence of a risk to a significant number of workers.  The Court found that "at most, only plaintiff and one other person used the scaffolding and ladders in the configuration in place on the day of plaintiff's injury or even worked in that area of the construction site."  In reaching this conclusion, the Court relied on a previous case where it found that four workers did not constitute a significant number of workmen.

Finally, the Court also rejected plaintiff's negligence claims, finding that defendant did not have actual or constructive knowledge of the condition of the scaffolding or appreciated its risks.  Just as plaintiff could not appreciate the danger, neither could defendant.

If you have any questions, please contact a member of the Foster Swift Commercial Litigation or Construction Law Groups.