David Finazzo v. Fire Equipment Company
David Finazzo v. Fire Equipment Company
Opinion
Plaintiff filed a negligence complaint sounding in premises liability regarding injuries he received from a fall while working as a security guard at ITC Holdings Corp. (ITC) in Ann Arbor. Defendants were contractors installing a fire protection system in ITC's computer room. During the installation, plaintiff stumbled on electrical cabling that was lying on the floor pending its installation in the drop-down ceiling. Defendants moved for summary disposition on the basis that as contractors working on behalf of the premises possessor, they could avail themselves of the open and obvious danger doctrine. Defendants asserted the cable on the floor that plaintiff stepped on was open and obvious and without any special aspects that rendered it unavoidable or that created an unreasonably high risk of severe harm. The trial court agreed and granted defendants summary disposition on this basis. The trial court also ruled that plaintiff's ordinary negligence claim failed because reasonable minds could not differ in finding that defendants were not negligent and that plaintiff's injuries were the result of plaintiff's own carelessness. Plaintiff appeals by right. We affirm.
Plaintiff, David Finazzo, was working on July 20, 2012, as a security guard at ITC located at 1901 South Wagner in Ann Arbor, Michigan. ITC had contracted with Fire Equipment Company (FEC) to install a system for suppressing fires, and FEC
*204 had subcontracted with Low Voltage Building Technologies, Inc. (LVBT) to perform the electrical work necessary for the project. A 40-foot cable, approximately one-half-to one-inch thick in diameter, lay on the floor where the work was being performed. The computer room was secured by a locked door. ITC employees used an access card to enter. Security guards admitted contractors like defendants. Before the incident, many people had entered and exited the computer room through its access door. At one point, plaintiff stepped on the cable and slipped, injuring himself when he fell. Plaintiff asserts that defendants failed to protect him from the hazard created by the cable lying on the floor, and as a result, plaintiff suffered damages.
Defendants argued that as contractor and subcontractor, they were in possession and control of that part of the premises where the work was being performed; therefore, they could avail themselves of the open and obvious danger doctrine. In support of their position, defendants cited 2 Restatement Torts, 2d, § 384, p. 289, certain unpublished decisions of this Court, and more than 20 decisions of other states that have applied § 384. Defendants contended that because the cable on the floor was open and obvious, they are shielded from plaintiff's claim of negligence based on premises liability. According to defendants, the cable on the floor was open and obvious and easily avoidable; plaintiff had been warned about it, and plaintiff had, in fact, safely stepped over it numerous times.
Plaintiff argued that defendants did not possess or control the premises where the work was being performed, i.e., where computer equipment was located, because they could only gain access to the secure room through the actions of plaintiff. He further asserted that ITC was protecting its proprietary information and did not release possession and control of the computer room to anyone. Further, plaintiff argued, his ordinary negligence claim-the act of laying the cable on the floor and leaving the room-survived even if the premises liability claim failed.
The trial court ruled that plaintiff's claim was one of premises liability and that the open and obvious danger doctrine applied for the reasons defendants argued: the cable on the floor was open and obvious and was an avoidable hazard. The trial court also ruled that reasonable minds could not differ; defendants were not negligent, and plaintiff's injuries occurred through plaintiff's own fault. The court granted summary disposition to defendants, and plaintiff now appeals by right.
I. STANDARD OF REVIEW
This Court reviews de novo a trial court's decision on a motion for summary disposition to determine if the moving party is entitled to judgment as a matter of law.
Maiden v. Rozwood
,
"Duty" is a legally recognized obligation to conform one's conduct toward another to what a reasonable man would do under similar circumstances.
Howe v. Detroit Free Press, Inc.,
II. THE OPEN AND OBVIOUS DANGER DOCTRINE
We affirm the trial court's application of the open and obvious danger doctrine to the facts of this case and its grant of summary disposition to defendants on that basis.
Plaintiff's claim is based on an injury received from a
condition
of the property-the cable lying on the tile floor pending its installation in the ceiling for the fire suppression system. A claim based on the condition of the premises is a premises liability claim.
James v. Alberts
,
A condition of the land is open and obvious when "it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection."
Hoffner v. Lanctoe
,
Generally, however, for a party to be subject to premises liability in favor of persons coming on the land, the party must possess
and
control the property at issue but not necessarily be its owner. See
Kubczak v. Chem. Bank & Trust Co.
,
*206
Merritt v. Nickelson
,
"It is a general proposition that liability for an injury due to defective premises ordinarily depends upon power to prevent the injury and therefore rests primarily upon him who has control and possession."
* * *
"Liability for negligence does not depend upon title; a person is liable for an injury resulting from his negligence in respect of a place or instrumentality which is in his control or possession, even though he is not the owner thereof." [Emphasis in Kubczak .]
Our Supreme Court has further explained that "[p]ossession and control are certainly incidents of title ownership, but these possessory rights can be 'loaned' to another, thereby conferring the duty to make the premises safe while simultaneously absolving oneself of responsibility."
Merritt
,
There is a clear relationship between the "control and possession" principle ... and the Restatement "duty to make safe." The land or property owner's bundle of possessory responsibilities may be diminished by the "loaning" of one or several of these responsibilities. This "loaning" gives a quantum of "control and possession" to another party. If such quantum of control and possession confers responsibility for an aspect of ownership which gives rise to liability then a "duty to make safe" will be found to exist.
While our Supreme Court has never adopted wholesale the Restatement of Torts, it has consistently relied on the principles in the Restatement to develop Michigan's law of premises liability. See
Hoffner
, 492 Mich. at 478-479,
One who on behalf of the possessor of land erects a structure or creates any other condition on the land is subject to the same liability, and enjoys the same freedom from liability, as though he were the possessor of the land, for physical harm caused to others upon and outside of the land by the dangerous *207 character of the structure or other condition while the work is in his charge.
Comment c of § 384 indicates that the stated rule would apply to the instant case in which defendant FEC was under contract to ITC to make changes to its computer room by installing a fire suppression system. Comment c of § 384 provides, "The rule stated in this Section applies to anyone who erects a structure upon land or alters its physical condition on behalf of its possessor, irrespective of whether he does so as a servant of the possessor or as a paid or unpaid independent contractor." 2 Restatement of Torts, 2d, § 384, comment c , p. 289. The stated rule also applies to defendant LVBT because LVBT was employed as a subcontractor of FEC to perform the electrical work for the project. Comment d of § 384 provides, in pertinent part:
[A] general contractor employed to do the whole of the work may, by the authority of his employer, sublet particular parts of the work to subcontractors. In such a case, the rule stated in this Section applies to subject the particular contractor or subcontractor to liability for only such harm as is done by the particular work entrusted to him. [ 2 Restatement Torts, 2d, § 384, comment d , p. 290.]
The imposition of premises liability on FEC and LVBT with respect to their work on the premises while installing the fire suppression system under § 384 is also consistent with the general principle that liability for a dangerous condition should fall on the party having power to prevent injury to others on the premises.
Kubczak
,
In this case, the undisputed facts establish that the cable on the floor was open and obvious.
Hoffner
, 492 Mich. at 461,
The sheer volume of decisions from other states that support the rule of law stated in § 384 is persuasive. Michigan courts are not bound by foreign authority with respect to questions of state law, but they may find it persuasive.
Mettler Walloon, L.L.C. v. Melrose Twp.
,
Plaintiff also misplaces reliance on
Garrett v. Sam H. Goodman Bldg. Co., Inc.
,
The Court in
Garrett
cited
Ghaffari v. Turner Constr. Co.,
The same reasoning applies with respect to the statement in
Fraim
, 474 Mich. at 1101,
Finally, if plaintiff's argument were valid-that defendants may not assert the open and obvious danger defense because they did not possess the premises-it follows for the same reason that defendants are not subject to plaintiff's premises liability claim. See
Kubczak
,
Plaintiff's argument that the cable was effectively unavoidable also lacks merit. The undisputed facts establish that the cable on the floor was open and obvious.
Hoffner
, 492 Mich. at 461,
III. ORDINARY NEGLIGENCE CLAIM
Contractors have a common-law duty to perform their work with ordinary
*210
care so as not to unreasonably endanger employees of other subcontractors or anyone else lawfully on the worksite.
Clark v. Dalman
,
To establish a prima facie case of negligence, plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.
Case v. Consumers Power Co.
,
imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others. This rule of the common law arises out of the concept that every person is under the general duty to so act, or to use that which he controls, as not to injure another. [ Clark ,379 Mich. at 261 ,150 N.W.2d 755 (emphasis added).]
The duty arising from a contract under the common law, the
Clark
Court explained, is that of ordinary care.
Id
."The general duty of a contractor to act so as not to
unreasonably endanger
the well-being of employees of either subcontractors of inspectors, or anyone else lawfully on the site of the project, is well settled."
Id. at 262,
In this case, ITC hired FEC to install a fire suppression system for its data processing center (computer room); FEC subcontracted with LVBT to install the necessary electrical connections for the fire suppression apparatus. Plaintiff David Finazzo was working on July 20, 2012, the date of his fall, as a security guard at ITC's facility in Ann Arbor. Plaintiff's job was to permit entry to the computer room for FEC and LVBT personnel and to monitor what was happening to keep the equipment and data secure. Plaintiff was *211 to remain in the computer room while defendants performed their work. Plaintiff watched for two hours as defendants installed metal clad electrical cabling in the drop-down ceiling of the computer room. At some point before 10:30 a.m., defendants laid electrical cabling on the floor to facilitate measuring the proper length to cut for installation. Defendants warned all present, including plaintiff, that cabling would be on the floor temporarily during the installation work. Kimberly Wooden, employed by ITC at the time, testified that she was in and out of the computer room several times while the cabling was on the floor. Plaintiff warned her of its presence each time, and she was able to easily step over it. Plaintiff also safely stepped over the cabling numerous times before he fell.
Plaintiff's testimony, although vague, did not dispute the testimony defendants presented. Plaintiff testified that the computer room was adequately illuminated, had a tile floor, and that he could see a 40-foot length of cabling on the floor and could describe its color; he recalled it was one-half to one inch in diameter. Plaintiff also stated that he "probably" knew the cable was on the floor before stepping on it when he went toward the door without looking at the floor. Specifically, plaintiff testified that before he fell, "I would probably assume that I did see the cable." He also acknowledged that defendants "probably told" him about the cables. When plaintiff turned to go to the door, "[he] didn't see the cables on the floor before [he] fell."
Based on the undisputed evidence, it is patent that plaintiff was warned of a known and observable trip hazard lying temporarily on the floor. Plaintiff was aware of the hazard; he and others had successfully and safely traversed the area by simply stepping over the cable numerous times. Unfortunately, it was plaintiff's own lapse of attention that caused him to fall when stepping on the cabling. Thus, for many of the same reasons that the cable on the floor was an open and obvious hazard without special aspects-the cable hazard was
avoidable
and did not create an
unreasonably high risk of severe harm
-we agree that defendants did not breach their general duty to perform their work "so as not to
unreasonably endanger
the well-being of ... anyone else lawfully on the site of the project...."
Clark
,
We affirm. As the prevailing parties, defendants may tax their costs pursuant to MCR 7.219.
SERVITTO, P.J., and O'CONNELL, J., concurred with MARKEY, J.
"
Random House Webster's College Dictionary
(1995), p. 297, defines 'control' as 'exercis[ing] restraint or direction over; dominate, regulate, or command.' Similarly, Black's Law Dictionary defines 'control' as 'the power to ... manage, direct, or oversee.' "
Derbabian v. S & C Snowplowing, Inc.
,
Defendants cite the following jurisdictions as following the common-law rule of § 384 : see
Devazier v. Whit Davis Lumber Co.
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.