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No. 132946
| Douglas Latham, |
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Jon R. Garrett |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Oakland - Warren, M.) |
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| Barton Malow Company, |
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Anthony F. Caffrey III |
| Defendant-Appellant. |
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| __________________________________________ |
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Plaintiff-Appellee's Brief in Opposition to Application for Leave to Appeal>>
Plaintiff-Appellee's Supplemental Brief>>
Defendant-Appellant's Application for Leave to Appeal>>
Defendant-Appellant's Reply Brief>>
Defendant-Appellant's Supplemental Brief>>
Defendant-Appellant's Errata Brief>>
Background
Douglas Latham, a skilled carpenter, was working for a subcontractor at a construction site managed by general contractor Barton Malow. Latham was injured when he fell 17 feet from an opening while trying to access a mezzanine. The opening was used by the employees of many different subcontractors. An employee could only be protected against a fall by wearing a personal fall protection device, such as a double lanyard, but Latham was not wearing such a device when he fell. Latham sued Barton Malow, contending that Barton Malow should have either required Latham to wear a personal protection device or warned Latham of the danger if he failed to wear one. Barton Malow moved to dismiss the lawsuit, arguing that Latham’s suit could not proceed because the hazard was open and obvious. The trial court denied Barton Malow’s motion and the Court of Appeals affirmed. Where the opening posed a risk of falling to many workers, and where Barton Malow was, by contract, generally responsible for the safety of all workers at the construction site, Latham could pursue his lawsuit, the Court of Appeals held. The Court of Appeals noted that in Ormsby v Capital Welding, Inc, 471 Mich 45 (2004), the Michigan Supreme Court held that general contractors on construction projects may be held liable for risks posed to multiple subcontractors and their employees in “common work areas.” To establish a general contractor’s liability, a plaintiff must prove (1) that the defendant 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 a significant number of workmen (4) in a common work area, the Ormsby Court said. Barton Malow appeals, arguing in part that the Court of Appeals did not apply Ormsby correctly.
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