In our business climate today, I hear contractors grousing that all the responsibility of a job falls upon them and not the homeowner. While some of that is the good-natured griping we all indulge ourselves in occasionally, some of it is also quite true. One area where contractors are held to a higher standard has to do with safety precautions, and your much-beloved MIOSHA requirements. Raise your hand if you have ever had your job site visited by a MIOSHA inspector. Keep your hand up if you enjoyed the visit. How come I do not see any hands?
In a case just tried downstate in the Ann Arbor area, a jury has held that a homeowner does not have to comply with the MIOSHA safety standards for a building project. The case stems from a home building project where the homeowner was acting as her own general contractor. She hired out various aspects of the work, including the plumbing. The master plumber who was working on the job attempted to climb a ladder the homeowner had apparently placed from the basement to the first floor. Unfortunately that ladder was not secured properly and the plumber went down with the ladder, fracturing his arms and ribs. Of course the plumber sued the homeowner based on a claim of premises liability. Perhaps surprisingly, the plumber lost that claim.
The homeowner defended on a couple of different bases. First, she maintained she should not be held to the MIOSHA standards, and what we regularly call the “common work area doctrine.” That doctrine provides for liability if an injured party (in this case the plumber) can show that:
The defendant property owner or general contractor failed to take reasonable steps within his/her supervisory and coordinating authority;
To guard against readily observable and avoidable dangers;
That created a high degree of risk to a significant number of workers; and
It happened in a common work area.
The reported case indicates that the jury rejected the common work area doctrine and further did not hold the homeowner/defendant to the MIOSHA safety standards. The most relevant lesson from all of this is that general contractors need to be aware of this common work area doctrine and need to take reasonable steps to guard against “readily observable and avoidable dangers,” particularly those that create a high degree of risk of injury to other workers. I am sure you could get into hundreds of shades of “gray” as it relates to the elements I just listed, but suffice it to say that unless a building activity is going on in a fairly isolated part of a project, the general contractor would do well to pay close attention on a regular basis to the working conditions. If nothing else, your insurance carrier will appreciate it.
The second basis the homeowner used to defend this claim against the plumber was by using the plumber’s own experience against him. The injured master plumber had 31 years of experience and was, of course, very familiar with ladders and construction sites. Apparently the jury thought that if a man with such experience could not ascertain the danger of the ladder, then how could the homeowner?
How many of us have walked through a newly framed residence carrying an armload of tools and/or materials only to notice that we just barely missed the opening in the floor for the basement – stairs optional! Or perhaps maybe you have heard the clunk of your co-worker’s hammer hitting the ground next to you, having fallen from the floor above you. While some of these are minor matters and only worth a smile, some of these potential injuries could be serious and the liability equally serious. Please take time to make your work sites as reasonably safe as you can.
If any of you have any questions about this or how it might apply to your business, please do not hesitate to contact me.
Besides being a past President of the Home Builders Association of the Grand Traverse Area and a licensed contractor, Robert Whims is an attorney at Whims Legal Group, PLC, located at 12935 S. West Bay Shore Drive, Traverse City, MI 49684. Telephone: 231-938-6099; Facsimile: 231-421-6686; E-mail: rwhims@whimslaw.com