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Henderson v. Hammer Building and Restoration12/1/2005
UNPUBLISHED
Before: Smolenski, P.J., and Schuette and Borrello, JJ.
Plaintiff appeals as of right an order granting defendant's motion for summary disposition. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
I. Facts and Procedural History
In July of 2001, plaintiff's employer, KMT, Inc. Electrical Contractors, assigned him to work at a fire-damaged home in Auburn. Defendant was the general contractor in charge of the overall restoration project. On July 6, plaintiff was working on the wiring in the basement of the home while two of defendant's employees were attempting to pump out the water that had accumulated there. After the majority of the water had been removed, plaintiff went upstairs to retrieve light bulbs for a fixture he had just installed. On his way back into the basement, plaintiff allegedly slipped on a wet rag, fell down the stairs, and injured his back.
In April of 2003, plaintiff commenced the present suit against defendant. In his complaint, plaintiff alleged that defendant breached his common law duty as a general contractor to "implement reasonable safety measures in common work areas to guard against readily observable, avoidable serious risks of personal injury , including . . . trip hazards." Plaintiff also alleged that defendant was liable for the ordinary negligence of its employees under the doctrine of respondeat superior. In April of 2004, the trial court determined that the open and obvious doctrine applied to plaintiff's claims and, on that basis, granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(8) and (10).
On appeal, plaintiff asserts that the trial court erroneously applied the open and obvious doctrine to his ordinary negligence claim where that doctrine only applies to premises liability claims. Plaintiff further contends that, even if the open and obvious doctrine were applicable to his ordinary negligence claim, the trial court erred when it determined that the rag was an open and obvious hazard as a matter of law. Finally, plaintiff also argues that there were fact questions concerning defendant's liability under the common work area doctrine and, therefore, the trial court erred when it granted defendant's summary disposition motion.
II. Standards of Review
We review de novo a trial court's decision to grant or deny summary disposition. Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). A trial court properly grants a motion for summary disposition pursuant to MCR 2.116(C)(8) where the opposing party has failed to state a claim on which relief can be granted. Morris & Doherty, PC v Lockwood, 259 Mich App 38, 42; 672 NW2d 884 (2003). Such motions test the legal sufficiency of a claim based solely on the pleadings. Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). When considering motions brought under MCR 2.116(C)(8), courts must accept all well-pleaded factual allegations as true and construe them in the light most favorable to the non-moving parties. Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004). The motions "may be granted only where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Id. (internal quotations omitted).
Under MCR 2.116(C)(10), summary disposition is appropriate when there is "no genuine issue as to any material fact." A question of material fact exists "when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v General Motors Corp, 469 Mich 177, 183; 665 NW2d
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