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Rihani v. Greeley & Hansen of Michigan10/25/2005
UNPUBLISHED
Before: Saad, P.J., and Jansen and Markey, JJ.
In these consolidated cases arising out of a work-site accident, defendant Greeley & Hansen of Michigan, LLC (G&H), and defendant L. D'Agostini & Sons, Inc. (D'Agostini), appeal by leave granted the trial court's denial of their motions for summary disposition. Defendants also appeal the trial court's order precluding defendants from naming the city of Detroit a nonparty at fault, after the city was granted summary disposition on the basis of governmental immunity. We reverse in Docket No. 256921 because G&H was a subcontractor to plaintiff's employer, NTH Consultants, Ltd. (NTH), it did not owe plaintiff a duty of care under the common work area doctrine. In Docket No. 256941, we affirm in part and reverse in part, and remand for further proceedings consistent with this opinion.
I. Summary of Facts and Proceedings
In 1999, the city of Detroit contracted with D'Agostini to increase the capacity of its Detroit Water and Sewage Department (DWSD) Imlay City pumping station, which sent Lake Huron water north to the city of Flint and south to the Detroit area. D'Agostini contracted to provide five new pumping units, improve the existing pumping units, and add a new 108-inch water main with the ability for either line pump (route water directly through the station to its northern or southern destination), or could draw water from a huge concrete reservoir. That part of the project requiring work inside the reservoir was to commence in January 2001. In anticipation of this part of the project, the city drained most of the water from the reservoir. On November 13, 2000, DWSD construction inspector George Galster issued an AVO to D'Agostini's project manager, Art Nichols, which read, "As of 10:15 AM 11.13.00 Imlay Station Reservoir has six inches of water in it. The pump was turned off, and it was turned over to the contractor." Nichols acknowledge receipt of the AVO by signing it on behalf of D'Agostini.
After the reservoir had been drained, D'Agostini employees cut a hole in its concrete wall to permit entry for a preliminary inspection inside. On November 16, 2000, Nichols wrote to Thomas DeRiemaker, the DWSD general superintendent of engineering, that certain structures inside the reservoir precluded D'Agostini from installing the proposed 108-inch pipe because "we do not have the room." Nichols also noted that cracks were observed in the walls and floor, which raised concern about the reservoir's structural integrity. Thereafter, the city hired NTH to assess the condition of the reservoir. The parties do not dispute the NTH survey was not part of the city's contract with D'Agostini, and that the city contracted directly with NTH for that work. DeRiemaker in his deposition explained that the city had an open agreement with NTH, and therefore, "it would be less expensive, and cleaner" to use NTH rather than to add this extra work to D'Agostini's contract. NTH subcontracted with G&H to assist in evaluating the reservoir. After entering the reservoir to take measurements on November 21, 2000, plaintiff, an NTH project engineer, fell into an unguarded sump pump pit and was seriously injured.
Plaintiff filed this negligence action against the city, D'Agostini, and G&H. After extensive discovery, the parties brought cross motions for summary disposition. D'Agostini argued that it was not the general contractor on the project, but rather a subcontractor to the city, which retained control over the premises. G&H asserted that as a subcontractor it did not have a duty to protect employees of other contractors and that the condition of the reservoir was open and obvio
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