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Candelaria v. BC General Contractors9/3/2002
FOR PUBLICATION
Defendant Horizon Cablevision, Inc., appeals by leave granted the trial court's order denying its motion for summary disposition. We reverse and remand.
The facts of this case are set forth in Candelaria v B C General Contractors, Inc, 236 Mich App 67; 600 NW2d 348 (1999).
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. (hereafter Candelaria). Part of Rego's job involved laying cable wire across the surface of state trunk line 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 to 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 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 (MDOT). Defendants moved for directed verdicts and their motions were denied. The trial court granted plaintiff's motion for a directed verdict against Horizon with regard 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. [Id. at 70-71.]
In the prior appeal, this Court dismissed plaintiff's wrongful death claim against BC, and remanded his claim against Horizon for a new trial. Id. at 85. With regard to Horizon, this Court explained that plaintiff's theory was that Horizon owed Candelaria a non-delegable duty arising by virtue of the fact that Horizon had obtained the MDOT permit; however, this Court concluded that " he MDOT could not create a non-delegable duty in tort owed by Horizon to Candelaria simply by including a nonassignability provision in the permit issued to Horizon." Id. at 79, 82. Rather, this Court concluded that
he only conceivable basis for imposing a non-delegable duty on Horizon under which plaintiff could proceed in negligence is that described in ยง 428 of the Second Restatement of Torts:
An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk o
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