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Court of Appeals examines "common work area" fall protection claim

Douglas Latham fell and suffered injury while unloading drywall from a scissors lift to an elevated island in a middle school contruction site.  The island was designed to hold hvac equipment and was enclosed on three sides. On the fourth side, a six-foot wide opening was retained for the delivery of materials and hvac equipment.  The opening utilized a single cable for fall protection, and the cable was removed during deliveries.

After Latham fell, in 2004 he sued the general contractor, Barton Malow Company, alleging that the general failed to provide or assure adequate safety protection for employees of sub-contractors in common work areas.  Barton Malow sought summary disposition and the case ultimately reached the Michigan Supreme Court.  In 2006, that Court ruled that both parties and both lower courts had misapprehended the danger which Barton Malow was obligated to appreciate.  It reversed the denial of summary disposition for Barton Malow and returned the case to the trial court to analyze "whether fall protection was available and whether the general contractor took reasonable steps to see that it was used."

When the case was returned to the lower court, the judge granted Barton Malow's motion to close discovery, and to disregard both a witness and the plaintiff's affidavit offered by the Plaintiff to address the questions identified by the Supreme Court.  It then granted summary disposition to the Defendant.

On appeal, the Court of Appeals overturned these decisions.  It pointed out that while the Supreme Court did not change the law pertinent to  Latham's claim, it had certainly clarified the law related to what risk the general contractor was obligated to appreciate and address.  Since both parties, the trial judge and three Court of Appeals judges had misapprehended the nature of the risk to be evaluated, it was reasonable to allow the Plaintiff to address the "clarified" risk with an additional witness and  his own affidavit [which did not contradict his prior testimony].

Since the Supreme Court had clearly directed the lower court to the analysis of the risk described above, it  was "within the scope of the remand order" for the trial court and the parties to re-brief the clarified risk and to allow limited related discovery.  The single newly offered witnesses' testimony "goes right to the heart of the purpose for remand"--- a purpose that no one appreciated prior to the Supreme Court's ruling.

Lastly, the Court ruled that since at least six workers, including plumbers, electricians, carpenters [like plaintiff] and delivery men would all work in the elevated island, Latham had presented a question of fact regarding the general contractor's duty to police a common work area for a hazard that endangered "a significant number of workers."

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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