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Candelaria v. BC General Contractors9/3/2002
pra at 72-74, or where the work is inherently dangerous, Bosak, supra; Kubisz v Cadillac Gage Textron, Inc, 236 Mich App 629, 633; 601 NW2d 160 (1999).
In the present appeal, plaintiff invites this Court to adopt another exception to the general rule, as set forth in § 428. Again, § 428 provides:
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 of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity. [2 Restatement Torts, 2d, § 428, p 420; emphasis supplied.]
Here, however, we need not decide if § 428 is applicable in Michigan because, on the facts of this case, plaintiff is unable to meet a requirement of § 428, that being that the activity involves "an unreasonable risk of harm to others."
Plaintiff argues that putting the cable on the roadway violated MCL 247.186, which prohibits placing "wires, cables or other fixtures . . . at less height than fifteen feet above any part of the traveled portion of the road." However, by its terms, the statute prohibits placing cables above the roadway, not on the roadway. Moreover, a separate provision of the same act explicitly contemplates that construction of a cable television line may occur "upon, or over or under a state trunk line highway" with the consent of the state highway commissioner. MCL 247.184 (emphasis added). Further, under the recognized exceptions to the general rule of non- liability for a contractor's negligence, our Supreme Court has refused to impose a non-delegable duty where the risk resulted from absence of safety measures or negligence of an employee, on the theory that to do so would "permit collateral negligence to elevate normal activity into inherently dangerous activity." Bosak, supra at 730. Similar to the analysis in Bosak, supra at 726-730, we believe that an unreasonable risk of harm does not arise from activity that is fairly routine and when the employer has no reason to anticipate a new risk created by the negligent performance of the activity. In this case, plaintiff fails to convince us that reasonable minds would conclude that laying a cable across a roadway poses an unreasonable risk of harm to others, especially when proper safety precautions may reduce any risk. See Funk, supra at 109- 110. Accordingly, even if § 428 were applicable in this state, a question we do not reach here, plaintiff would have been unable to establish that defendant owed a non-delegable duty under that rule. Therefore, the trial court erred in denying defendant's motion for summary disposition.
Reversed and remanded to the trial court for entry of an order dismissing the case. We do not retain jurisdiction.
Richard A. Bandstra
Joel P. Hoekstra
Peter D. O'Connell
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