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Candelaria v. BC General Contractors Inc.6/4/1999
Defendants BC General Contractors, Inc., and Horizon Cablevision, Inc., appeal as of right from a judgment for plaintiff entered after a jury trial. We reverse and remand.
I.
Defendant Horizon, a company in the business of providing cable television service, hired defendant BC, as an independent contractor, to install cable television service in certain areas of Ingham County. BC, in turn, hired Bob Rego, also as an independent contractor, to perform a portion of the work involving aerial construction. Rego employed plaintiff's decedent, Thomas Candelaria, Jr. Part of Rego's job involved laying cable wire across the surface of state trunkline M-106 in Ingham County. On the day of the accident, Rego's foreman and Candelaria were the only workers at the site. When the foreman needed more cable to work with, he asked Candelaria to release some slack from the reel. Instead of pulling slack from the reel by hand, which was the standard procedure, Candelaria turned the reel on its side and began pushing it like a wheelbarrow. Because the foreman was concerned that Candelaria's action might tighten the cable rather than create slack, he ran to the reel and flipped it back up into its usual position. Just as the foreman turned the reel, a passing car snagged a portion of the cable that had become elevated from the surface of the highway. This caused the reel to jerk forward into Candelaria, killing him instantly.
Plaintiff filed a wrongful death action against defendants alleging that that their negligence caused Candelaria's death. At the close of the proofs, plaintiff's theory with respect to BC was that it could be held liable in negligence on the basis of its retention of control over the work performed by Rego. Plaintiff's theory with respect to Horizon was that it could be held liable in negligence pursuant to a non-delegable duty arising by virtue of the fact that it had obtained a permit issued by the Michigan Department of Transportation. Defendants moved for directed verdicts and their motions were denied. The trial court granted plaintiff's motion for a directed verdict against Horizon as to the issue of its negligence. The jury found (1) that Horizon's negligence was a proximate cause of the accident, (2) that BC was negligent and that its negligence was a proximate cause of the accident, and (3) that Candelaria himself was negligent, that his negligence was a proximate cause of the accident, and that he was fifty percent at fault. The final judgment entered against defendants was in the amount of $248,248.48.
II.
On appeal, BC argues that the trial court erred in denying its motion for directed verdict. We agree. BC moved for a directed verdict on the ground that it did not retain and exercise sufficient control over Rego's work to be held liable for Candelaria's injury. The trial court reasoned that, although there was not a "great deal" of evidence of BC's control, there was enough to present the issue to the jury.
This Court reviews de novo a trial court's decision with regard to a directed verdict. Meagher v Wayne State University, 222 Mich App 700, 708; 565 NW2d 401 (1997). When evaluating a motion for a directed verdict, a court must consider the evidence and all legitimate inferences arising from the evidence in a light most favorable to the nonmoving party. A directed verdict is appropriate only when no material factual question exists upon which reasonable minds could differ. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975).
A.
As a general rule, when an owner or general contractor hires an independent contractor to perform a job, the owner or general contractor may not be held liable in ne
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