A recent case again highlights the difficulty in obtaining compensation in Michigan construction accident cases. In Shawl v. Spence Brothers, the Michigan Court of Appeals upheld the trial judge’s ruling dismissing the plaintiff’s personal injury lawsuit against Spence Brothers, who was the general contractor at the site plaintiff worked.
In this case, James Shawl was a journeyman painter. He was hired as a subcontractor by the defendant, Spence Brothers, to complete a painting renovation at the Saginaw County Event Center. While at the job site, Mr. Shawl was standing next to his ladder reviewing his work when a temporary electrical panel that had been placed by a gang box fell towards him. The three screws protruding from the electrical panel punctured his lower back.
The trial judge dismissed the lawsuit against the general contractor, holding Mr. Shawl failed to present all the elements needed to be successful in a Michigan construction accident claim. Mr. Shawl appealed this ruling but the Court of Appeals affirmed the lower court’s ruling, again stating Mr. Shawl had no case.
In making its decision, the court relied upon something called the “common work area doctrine.” Under Michigan law, general contractors and property owners are liable for the negligence of their employees or independent contractors if (1) the general contractor or property owner failed to take reasonable steps within its supervisor 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. All four elements must be met by the plaintiff to be successful. In this case, the Michigan Court of Appeals found the electrical panel did not create a high degree of risk. In addition, it found a significant number of workers were not exposed to the danger. Therefore, because two of four elements were not met, Mr. Shawl had no case.
In making its ruling, the Court made some startling and brash conclusions. First, it stated that because there was no evidence the electrical panel could have electrocuted somebody or some similar type of danger associated with the panel, there was no high degree of risk. This conclusion by the Court ignores what the law says and what happened in this factual scenario. Just because the plaintiff was not electrocuted doesn’t mean there was not a high degree of risk. Electrical panels can injure workers in numerous ways. Just because one is not actually electrocuted by an electrical box does not make it not dangerous. By looking only at the intended function of the electrical panel, the Court ignored all other possible hazards. This is not what the law requires when analyzing if a high degree of risk existed in a Michigan construction accident case.
In addition, it is clear there were dangers associated with the panel because three separate screws were sticking out, thereby causing the injury to the plaintiff in the first place. The makeshift electrical panel, which was attached to a loose 4 x 4 piece of plywood, certainly posed a degree of risk. Whether that degree of risk was a high degree of risk should have been answered by a jury, not the trial judge, which is what the plaintiff in this case was demanding.
As for the number of workmen, in the past the Michigan Court of Appeals has arbitrarily determined that four workers does not constitute a significant number of workmen. I’m not sure why such a bright line number is required. The law only says a “significant number of workmen.” It does not provide a set number that must be met. Further, each situation is different. Some Michigan work sites have dozens of workers while others only demand a few. In my opinion, each individual situation must be considered in light of the underlying job being completed. If a job only requires 10 workers, one could argue three or four workers are significant – after all – that is 30-40% of the workers at a given site. In addition, some independent contractors complete work during a time when other workers are not on duty. Why should they be unable to seek compensation for someone else’s negligence simply because their injury happened to take place during “off peak hours” or when most other contractors or employees were off the clock?
Now, I’m not saying the plaintiff in this case should have been successful. He testified he was unsure exactly how the electrical panel fell and some of his story was speculative. However, the judges in this ruling made blanket conclusions that ignore the realities of a construction site. Instead they relied upon bright line tests not found in the law that make it almost impossible for individual workers, such as Mr. Shawl, to be successful in obtaining compensation for their injuries.