PER CURIAM.
In this premises liability action, plaintiffs
Plaintiff was injured on May 31, 2006 when he fell through a trapdoor opening
One of the conveyors that the Durr employees were working on could only be accessed from the mezzanine. Plaintiff indicated that he was familiar with the area within defendant's plant where he was working, including the mezzanine area. Plaintiff testified that during his time on this job, he had been on the mezzanine often, climbing the stairs roughly three or four times a day before the incident in order to check the progress of the work being done. Plaintiff acknowledged that he knew there were grates that could be removed in the mezzanine area because he had seen some removed in other parts of the plant. Plaintiff was also familiar with similar grate systems in other plants he had worked in. Plaintiff knew that the Durr employees would need to lift or hoist some products to the mezzanine, and he stated that occasionally the products are lifted through removed sections of the grating.
On the night of the incident, plaintiff walked up the stairs to the mezzanine in order to distribute paychecks. According to plaintiff, Mike Perry, the ironworker foreman, walked up the stairs behind plaintiff. Regarding the fall, plaintiff testified that he "went up the staircase and went to my right as I got to the top of the staircase, and that's all I remember ... the next thing I know, I was laying on the floor." Plaintiff did not recall seeing anyone on the mezzanine before his fall and he did not recall looking down. Plaintiff was wearing safety glasses and a hard hat at the time he fell. When plaintiff awoke, he was laying on the ground. Plaintiff was told after the fall that the "Perry boys," a group of cousins that worked as ironworkers for Durr, may have moved a section of grating from the floor.
One of the Perry boys, Lonnie Perry, worked as an ironworker at Durr on the date of the incident. Lonnie stated that he heard plaintiff tell his cousin, Mike Perry, that a section of the conveyor would need to be lifted through the grating. Lonnie testified:
Lonnie said that the grating was open "two tenths of a second, possibly" before plaintiff stepped into the hole. Michaeline Cartwright, who worked as a safety coordinator for Durr from 2004 to 2006, documented that the grating had been opened "for less than ten seconds."
Cartwright testified that on the night of the incident, she spoke to one of defendant's employees, Nick Juncaj, who was temporarily working as the UAW safety representative. Juncaj testified that he filled in for the regular safety representative for five weeks, beginning on May 19, 2006. According to Cartwright, Juncaj stated that there had been two other accidents at the same location within the past three years. However, at his deposition, Juncaj denied knowing of any prior accidents and he did not recall telling Cartwright of other injuries in this area. Juncaj testified that he had worked at the Sterling Heights plant since 1991, full time since 1994. Pat Christie, defendant's safety supervisor, testified that the hinged sections on the mezzanine have been used "time and again." Christie also indicated that he had no knowledge of other accidents with people falling through the hinged section of the mezzanine floor.
Plaintiffs originally sought relief asserting claims of both premises liability, based on defendant's ownership of the premises, and contractor liability, under the retained control doctrine, on the theory that defendant had retained control over the renovation project. See Ormsby v. Capital Welding, Inc., 471 Mich. 45, 60, 684 N.W.2d 320 (2004). However, plaintiffs stipulated to dismissal of this latter claim, as well as its claim predicated on the inherently dangerous activity doctrine, and proceeded only on the claim predicated on defendant's ownership of the premises.
Defendant filed a motion requesting summary disposition. After considering the evidence, the trial court granted defendant's motion, holding:
Plaintiffs now appeal, challenging the grant of summary disposition as well as
We review de novo a trial court's decision on a motion for summary disposition. Odom v. Wayne Co., 482 Mich. 459, 466, 760 N.W.2d 217 (2008). For a motion brought under MCR 2.116(C)(10), we review the pleadings, admissions, and other evidence in the light most favorable to the nonmoving party and, if there are no genuine issues of material fact, the moving party is entitled to judgment as a matter of law. Id. at 466-467, 760 N.W.2d 217. A trial court's action on a motion for reconsideration is reviewed for an abuse of discretion. Woods v. SLB Prop. Mgt., LLC, 277 Mich.App. 622, 629, 750 N.W.2d 228 (2008).
As an initial matter, we note that a subcontractor's employee who is injured on a work site may bring claims for both premises liability and contractor liability. See, e.g. Ghaffari v. Turner Constr. Co., 473 Mich. 16, 699 N.W.2d 687 (2005); Perkoviq v. Delcor Homes-Lake Shore Pointe, Ltd., 466 Mich. 11, 643 N.W.2d 212 (2002). Therefore, plaintiffs' concession that they had no contractor liability claim did not automatically preclude a premises liability claim. To the extent that defendant asserted the contrary, we reject its argument.
To establish a premises liability claim, "a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages." Benton v. Dart Props., Inc., 270 Mich.App. 437, 440, 715 N.W.2d 335 (2006).
Plaintiffs first argue that the trial court erred by concluding that defendant had not created the dangerous condition and could not be held liable for plaintiff's injuries. Plaintiffs argue that defendant created the danger by placing the trapdoor in the mezzanine walkway. Defendant argues that plaintiff's coworkers created the condition when the trapdoor was opened and no barricade was placed around the opening. We conclude that there are two separate potential dangerous conditions on defendant's premises for which it could be held liable. Although the trial court appears to have based its ruling on the conclusion that the dangerous condition was the open trapdoor, at oral argument, counsel for plaintiffs indicated that the dangerous condition was not the open trapdoor, per se, but rather its location in the walkway and where it was hinged. Because these are distinct claims, see Bluemer v. Saginaw Central Oil & Gas Serv., Inc., 356 Mich. 399, 97 N.W.2d 90 (1959), we address them separately.
Looking first at defendant's liability for the open trapdoor as the dangerous condition, we conclude that the trial court properly granted summary disposition on this issue.
"It is a general proposition that liability for an injury due to defective premises ordinarily depends upon power to prevent the injury...." Nezworski v. Mazanec, 301 Mich. 43, 56, 2 N.W.2d 912 (1942) (quotation marks and citation omitted). In this case, there is undisputed evidence that one of plaintiff's coworkers opened the trapdoor moments before plaintiff fell. Defendant did not open the section and leave it in a dangerous condition. Rather, the open trapdoor was a construction site hazardous condition that was created by one of plaintiff's co-employees.
In Young v. Delcor Assoc., Inc., unpublished opinion per curiam of the Court of Appeals, issued June 27, 2006 (Docket No. 266491, 2006 WL 1749821), rev'd 477 Mich. 931, 723 N.W.2d 459 (2006), the plaintiff was a subcontractor's employee who stepped on a wall panel that had been laid down over one-third of a second-floor stairwell opening that was neither covered nor barricaded. The plaintiff knew that there was a stairwell opening under the wall, but thought the wall panel was a solid section. The wall was in two sections that separated when the plaintiff stepped on the panel, and the plaintiff fell more than 20 feet through both the second and first floor stairwell openings into the basement. Id. at 2. The trial court concluded that there was an outstanding factual question as to whether the defendant had possession and control over the premises at the time of the plaintiff's injuries, "a necessary element of both claims." Id. at 4. However, it concluded that the premises liability claim failed as a matter of law because "either the opening itself or the opening partially covered by the wall panel" was open and obvious or "presented an unexpected hazard for which [defendant] did not have notice as even plaintiff did not realize that the wall panel would not support his weight." Id. at 4-5. The plaintiff appealed the summary disposition on both the premises liability and contractor liability claims. The Court of Appeals panel affirmed summary disposition on the contractor liability claim, but reversed on the premises liability claim, concluding:
It concluded that there was a genuine issue of material fact "regarding whether there were special aspects of the stairwell that gave rise to a uniquely high likelihood of harm or severity of harm if confronted and, therefore, [defendant] had a duty to undertake reasonable precautions to protect invitees, like plaintiff, from that risk." Id. at 8.
Our Supreme Court unanimously peremptorily reversed the panel and reinstated the trial court's grant of summary disposition on the premises liability claim. Young, 477 Mich. at 931, 723 N.W.2d 459. Citing Perkoviq, 466 Mich. at 18-20, 643 N.W.2d 212, it held:
Here, defendant had no notice that the grate was being opened; none of its employees was present and it was uncontested that the trapdoor had been open at most 10 seconds before the accident occurred.
Plaintiffs argue that Muth v. W P Lahey's, Inc., 338 Mich. 513, 61 N.W.2d 619 (1953), provides that liability may be imposed on defendant based on Durr employees' actions. We disagree. In Muth, a customer who went into a store to buy shoes fell through a trapdoor that was left open by a shoe department employee. Id. at 516, 61 N.W.2d 619. At the time, the shoe department was operated by another company pursuant to a lease. Id. Our Supreme Court upheld the imposition of liability on the store owner, even though it was the shoe department company's employee who had left the door open. Id. at 519-520, 61 N.W.2d 619. In Bluemer, 356 Mich. at 409-411, 97 N.W.2d 90, however, our Supreme Court distinguished Muth, and indicated that the imposition of liability on the store owner was not based simply on the fact that the defendant owned the store, but based on the store owner's essentially complete control over the shoe department company's business activities, including employee hiring. Id. at 409-410, 97 N.W.2d 90. By contrast, where a lessor does not conduct business or direct its tenant's business, liability is imposed on the lessee, not the property owner. Id. at 411-412, 97 N.W.2d 90. See also Brown v. Std. Oil Co., 309 Mich. 101, 14 N.W.2d 797 (1944) (holding that the owner of a gas station was not liable for the injuries to an employee of the lessee gas station because the lease did not reserve to the owner the right to exercise control over the business or operations of the lessee on the premises). Here, defendant had turned over control of the construction site to Durr, and there was no evidence that defendant was exercising control over the construction site. Accordingly, the negligent acts of Durr employees in opening the trapdoor without proper barricading could not be imputed to defendant.
Alternatively, plaintiffs argue that defendant was liable because it created a dangerous condition by leaving the trapdoor
In Bluemer, 356 Mich. at 410-416, 97 N.W.2d 90, our Supreme Court concluded that the liability of a property owner for the dangerousness of a trapdoor based on "its use, location, and other circumstances" was a question separate and apart from its liability based on the lessee's employee's negligence in leaving the trapdoor open, and that liability could be imposed for the former. Bluemer cites two cases that we find similar to the instant case:
Although these cases describe the issue as a nuisance claim, we do not believe that plaintiffs were required to allege a nuisance in order to claim that the location of the trapdoor and its design (i.e. where the hinges were placed) created a dangerous condition. Rather, we believe that such claims fall under the category of premises liability. See Michigan Law and Practice, § 1, p. 97 (noting that "several Michigan decisions use the term `nuisance' liability to refer to what is essentially premises liability"); see also Kilts v. Kent Co. Bd. of Supervisors, 162 Mich. 646, 651, 127 N.W. 821 (1910) (defining a nuisance as "involv[ing], not only a defect, but threatening or impending danger to the public" and concluding that the plaintiffs' claims for faulty tower construction sounded in negligence, not nuisance).
We affirm the trial court's grant of summary disposition as to the open trapdoor, reverse the grant of summary disposition as to the location of the trapdoor and the placement of its hinges, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs, neither party having fully prevailed.