                                                                    Michigan Supreme Court
                                                                          Lansing, Michigan
                                            Chief Justice:	           Justices:



Opinion                                     Maura D. Corrigan 	       Michael F. Cavanagh
                                                                      Elizabeth A. Weaver
                                                                      Marilyn Kelly
                                                                      Clifford W. Taylor
                                                                      Robert P. Young, Jr.
                                                                      Stephen J. Markman


                                                   FILED JULY 23, 2004




 ROBERT F. DESHAMBO,

       Plaintiff-Appellee,

 and                                                 Nos. 122939-122940

 JENNIFER M. GRANHOLM, Attorney General
 of the State of Michigan, and MICHIGAN
 DEPARTMENT OF COMMUNITY HEALTH,

       Intervening Plaintiff-Appellee,

 v

 NORMAN R. NIELSEN and PAULINE NIELSEN,

       Defendants-Appellants,

 and

 CHARLES W. ANDERSON,

      Defendant.
 _______________________________

 BEFORE THE ENTIRE BENCH

 CORRIGAN, C.J.

       In   this   case,   we   consider   whether            the   inherently

 dangerous activity doctrine has been properly extended to

 impose liability on landowners for injuries to employees of
independent contractors performing dangerous work.                                We hold

that        the   Court    of   Appeals      has        improperly        extended    the

doctrine,         contrary      to   its    original        purpose,        to    include

injuries to those involved in the performance of dangerous

work.        The purpose of the doctrine is to protect innocent

third        parties      injured     as    a      result       of    an    inherently

dangerous undertaking.               Because plaintiff was an employee

of an independent contractor rather than a third party, the

doctrine does not apply in this case.                          We thus reverse the

judgment of the Court of Appeals.

                   I. UNDERLYING FACTS AND PROCEDURAL HISTORY

        Defendants Norman and Pauline Nielsen1 own and reside

on a 130-acre farm in Leelanau County, Michigan.                                 The land

is     used       primarily     to   farm        corn    and    operate      a     cherry

orchard.          A neighbor manages the cherry tree operation, and

defendants         are    not   involved         in     pruning      or    cutting    the

trees.        Defendants hired an independent contractor, Charles

Anderson, to fell and delimb small poplar trees and to

clean up the tops of trees that a previous logger had left

on the property.              Anderson, an experienced timber cutter,



        1
       Plaintiff voluntarily dismissed his claims against
defendant Charles W. Anderson.  Because Anderson is not a
party to this appeal, the term “defendants” refers only to
the Nielsens.



                                            2

had previously performed woodcutting for defendants.               Under

the arrangement between defendants and Anderson, Anderson

would keep the tree tops for firewood and pay defendants

for the poplar that he cut.                 The parties did not discuss

how the felling and delimbing was to be performed.

       Anderson hired plaintiff Robert DeShambo to help him

with       the   work    on   defendants’    property.   On   plaintiff’s

first day of work, he was delimbing trees when he heard

someone yelling.              Plaintiff turned around and saw a tree

falling toward him as Anderson felled it.                  The tree hit

plaintiff on the shoulder and then struck some logs on the

ground, causing one log to spin, strike him in the back,

and pin him between the log and the fallen tree.                     The

incident has left plaintiff paralyzed.

       Plaintiff filed a negligence action against defendants

and Anderson, but subsequently dismissed his claims against

Anderson.2          Plaintiff alleged, inter alia, that defendants

were       liable       for   Anderson’s    negligence   because   timber

cutting was an inherently dangerous activity.                  Defendants

moved for summary disposition, arguing that plaintiff could

not establish liability under any recognized exception to


       2
       The state of Michigan also intervened to recover
funds paid through Medicaid for plaintiff’s medical
treatment.



                                       3

the general rule precluding the liability of a landowner

for   injuries      that      an    independent                contractor         negligently

causes.

      The    trial        court       granted            summary       disposition           for

defendants,       ruling       that       logging             was    not    an     inherently

dangerous         activity          and        that           defendants          were       not

sophisticated        landowners             knowledgeable                  of     the      risks

inherent in cutting timber.                    The Court of Appeals reversed,

concluding        that    a    question             of    fact       existed       regarding

whether     defendants             reasonably             anticipated             the      risks

inherent in logging.3                The Court reasoned that defendants

had   previously         hired      logging          companies         to       conduct     tree

removals     on     their      property             and       that    defendant          Norman

Nielsen had admitted that logging was risky.                                       The Court

further stated that because plaintiff presented evidence of

the   hazardous          elements         of        logging,         the        determination

whether logging is inherently dangerous is a jury question.

      We    granted        defendants’              application             for    leave      to

appeal,     directing         the    parties             to    address          “whether    the

‘inherently         dangerous             activity’             doctrine          has       been

appropriately extended beyond its original application to



      3
       Unpublished opinion per curiam, issued October 22,
2002 (Docket Nos. 233853, 233854).



                                               4

only third parties to extend liability to landowners and

general        contractors        for    injuries           to       employees      of

independent contractors doing dangerous work.”4

                               II. STANDARD OF REVIEW

       Whether the “inherently dangerous activity” doctrine

has been properly extended to include injuries to employees

of independent contractors who are injured while performing

dangerous work is a question of law that this Court reviews

de    novo.      Likewise,       we   review    de    novo       a    lower    court’s

decision on a summary disposition motion.                        Quality Products

& Concepts Co v Nagel Precision, Inc, 469 Mich 362, 364;

666 NW2d 251 (2003).

                                      III. ANALYSIS

       It has been long established in Michigan that a person

who    hires    an   independent        contractor      is       not    liable    for

injuries      that   the       contractor     negligently            causes.      Lake

Superior      Iron   Co    v    Erickson,      39    Mich    492,      496     (1878);

DeForrest v Wright, 2 Mich 368, 370 (1852).                              Over time,

exceptions to this general rule have developed, including


       4
       469 Mich 947 (2003).   We ordered that this case be
submitted together with Ormsby v Capital Welding, Inc, 471
Mich ___ ; ___ NW2d ___ (2004), which involves the
relationship between the “common work area” and “retained
control” doctrines and the effect of those doctrines on the
general rule of nonliability for owners and independent
contractors.



                                         5

the “inherently dangerous activity” doctrine.                     The class of

persons    protected     under     the       doctrine     has     undergone     a

transformation since the doctrine’s inception.

        A. Application of the Inherently Dangerous Activity
                     Doctrine to Third Parties

       Early cases giving rise to the inherently dangerous

activity    doctrine    limited      the      exception    to     injuries     to

third parties.        In Rogers v Parker, 159 Mich 278; 123 NW

1109 (1909), this Court first discussed an exception to the

general rule of nonliability for damages caused to a third

party by an independent contractor’s performance of an act

likely to do harm to that third party.                  The question before

this    Court   was    whether     a        landowner     who     employed     an

independent     contractor    to   clear       farmland     was    liable     for

damages to neighboring property resulting when a fire that

the contractor had set spread to neighboring land.                           This

Court     resolved     the   issue       on    statutory        grounds,      but

discussed in obiter dictum the common-law principles that

would have applied, stating:

            [T]he rule relieving the employer where the
       work has been committed to an independent
       contractor is subject to the well-established
       exceptions that:

            “If the thing to be done is in itself
       unlawful, or if it is per se a nuisance, or if it
       cannot be done without doing damage, he who
       causes it to be done by another, be the latter
       servant, agent, or independent contractor, is as


                                       6

       much liable for injuries which may happen to
       third persons from the act done as though he had
       done the act in person.    So it is the duty of
       every person who does in person, or causes to be
       done by another, an act which from its nature is
       liable, unless precautions are taken, to do
       injury to others, to see to it that those
       precautions are taken, and he cannot escape this
       duty by turning the whole performance over to a
       contractor.”    [Id. at 282-283 (some emphases
       added).]

       In Inglis v Millersburg Driving Ass’n, 169 Mich 311;

136    NW   443    (1912),     this    Court       elaborated        on    the    above

common-law        exception.          In        that   case,     agents      of     the

defendant association had set fires on fairgrounds property

in the defendant’s possession to clear it, and the fires

spread to the plaintiff’s adjoining land, causing damage.

This Court held that the defendant was estopped to argue

that        independent        contractors,                 rather        than      the

unincorporated association itself, were responsible for the

damage, because it had not pleaded that defense or argued

it at trial.        Id. at 317-318.              This Court opined in obiter

dictum, however, that an exception would have applied to

the    general     rule   of   nonliability            of    landowners      for    the

actions of independent contractors.                    While this Court cited

its decision in Rogers and various other formulations of

the rule, perhaps the best articulation of the principle

was as follows:




                                           7

     The doctrine of independent contractor,
whereby one who lets work to be done by another,
reserving no control over the performance of the
work, is not liable to third persons for injuries
resulting from negligence of the contractor or
his servants, is subject to several important
exceptions.    One of these . . . is where the
employer is, from the nature and character of the
work, under a duty to others to see that it is
carefully performed.    It cannot be better stated
than in the language used by Cockburn, C.J., in
Bower v. Peate, 1 Q.B. Div. 321, 326, a leading
and well-considered case. It is, ‘that a man who
orders a work to be executed, from which, in the
natural course of things, injurious consequences
to his neighbor must be expected to arise, unless
means are adopted by which such consequences may
be averted, is bound to see the doing of that
which is necessary to prevent mischief, and
cannot relieve himself of his responsibility by
employing some one else——whether it be the
contractor employed to do the work from which the
danger arises, or some independent person——or to
do what is necessary to prevent the act he has
ordered done from becoming unlawful.’ . . . This
does not abrogate the law as to independent
contractor.    It still leaves abundant room for
its proper application. ‘There is,’ as stated by
Cockburn,    ‘an    obvious   difference    between
committing work to a contractor to be executed,
from which, if properly done, no injurious
consequences can arise, and handing over to him
work   to   be    done   from   which   mischievous
consequences will arise unless precautionary
measures are adopted.’

     “The weight of reason and authority is to
the effect that, where a party is under a duty to
the public, or third person, to see that work he
is about to do, or have done, is carefully
performed, so as to avoid injury to others, he
cannot, by letting it to a contractor, avoid his
liability, in case it is negligently done to the
injury of another."   Covington, etc., Bridge Co.
v. Steinbrock & Patrick, 61 Ohio St. 215 (55 N.E.
618 [1899], and cases cited.” [Inglis at 320-321
(citations omitted, emphasis added).]


                         8

     Thus, the above rule, which has come to be known as

the “inherently dangerous activity exception,” is founded

on the existence of a duty on behalf of the landowner, or

employer of an independent contractor, and the duty must be

of   the   type   that     is   nondelegable.         The    employer    or

landowner must also be aware that the danger exists and

that it necessarily involves danger to others.                     Notably,

the type of danger contemplated by the Inglis Court was

danger to third parties and not to those involved in the

dangerous activity.

     Over the next several decades, this Court reaffirmed

that, under this doctrine, the landowner must itself owe

some duty to the specific third party, that the negligent

act that causes the injury cannot be collateral to the work

contracted for, and that the injury that occurs must be

reasonably expected by the landowner.            See Cary v Thomas,

345 Mich 616; 76 NW2d 817 (1956); Barlow v Kreighoff Co,

310 Mich 195; 16 NW2d 715 (1944); Grinnell v Carbide &

Carbon Chemicals Corp, 282 Mich 509; 276 NW 535 (1937);

Tillson    v   Consumers   Power   Co,   269   Mich    53;   256    NW   801

(1934); Watkins v Gabriel Steel Co, 260 Mich 692; 245 NW

801 (1932); Wight v H G Christman Co, 244 Mich 208; 221 NW




                                    9

314 (1928).       Notably, under this Court’s precedent, the

doctrine applied only to third parties.

          B. Expansion of the Inherently Dangerous Activity
                 Doctrine to a Contractor’s Employees

     In Vannoy v City of Warren, 15 Mich App 158; 166 NW2d

486 (1968), the Court of Appeals purported to expand the

scope of the inherently dangerous activity doctrine to hold

a landowner liable not to a third party, but to the estate

of a deceased employee of an independent contractor.                          The

Court expressly rejected the landowner’s argument that the

doctrine    applied    only   to    third    parties        and   not   to    the

employees    of   an    independent        contractor       engaged     in    the

inherently dangerous activity.             Id. at 164-165.            The Court

stated     that   limiting    the     exception        to     third     persons

“violate[d] the absolute character of the duty . . . .”

Id. at 164.

     In McDonough v Gen Motors Corp, 388 Mich 430; 201 NW2d

609 (1972), a plurality of this Court reversed a directed

verdict for the defendant landowner, concluding that the

inherently dangerous activity exception could be applied to

impose     liability     on   the     owner      for        injuries     to     a

subcontractor’s       employee.      The     plurality       quoted     Justice

COOLEY’s formulation of the rule that this Court cited in

Inglis:



                                     10

          “‘If I employ a contractor to do a job of
     work for me which, in the progress of its
     execution, obviously exposes others to unusual
     perils, I ought, I think, to be responsible, * *
     * for I cause acts to be done which naturally
     expose others to injury.’”    [McDonough at 438,
     quoting Inglis, supra at 319, quoting 2 Cooley
     Torts (3d ed), p 109.]

Without    explanation,     the     plurality      assumed    that   the

“others” quoted above included the contractor’s employees

and not only third parties.

     Justice     BRENNAN    dissented,5         contending    that   the

inherently      dangerous         activity       exception     protects

“strangers” and does not apply to “a plaintiff who was

himself    actively   engaged      in     the    inherently   dangerous

activity.”     McDonough at 453.        His dissent stated:

          The   application    of   this   well   settled
     exception is clear in cases where the injured
     person is a stranger to the inherently dangerous
     activity.     In Inglis [supra], the inherently
     dangerous activity was burning, and the plaintiff
     was a neighboring landowner; in Grinnell [supra],
     the danger was explosion, the plaintiff a
     purchaser of a stove; in Watkins [supra], the
     dangerous     activity     was    elevated     steel
     construction, the plaintiff a mason contractor;
     in Olah v Katz, 234 Mich 112 [207 NW 892] (1926),
     the danger was an open pit, the plaintiff a
     neighboring child; in Detroit v Corey, 9 Mich 165
     (1861), the danger was an open ditch, the
     plaintiff   a    passer-by;    in   Darmstaetter   v
     Moynahan, 27 Mich 188 (1873), the danger was a
     wall of ice in the roadway, the plaintiff a
     sleigh rider; in McWilliams v Detroit Central


     5
         Justice T. G. KAVANAGH joined Justice BRENNAN’s dissent.



                                    11

Mills Co, 31 Mich 274 (1875), the danger was a
railroad switching operation, the plaintiff a
passer-by. . . .

     Indeed, there are almost no cases which have
come to notice in which the suit is brought by or
on behalf of a plaintiff who was himself actively
engaged in the inherently dangerous activity.

     Those few precedents which are cited seem to
be founded upon other grounds.

                      * * *

     [T]he rule of liability is designed to
protect innocent third parties injured by the
execution of an inherently dangerous undertaking.
The rule is not designed, nor was it ever
intended to benefit the contractor who undertakes
the dangerous work, or his employees.

     Thus, if I employ a contractor to remove a
tree stump from my yard by use of explosives, I
am liable to my neighbor whose garage is damaged
by the concussion.   This is because it is I who
have set the project in motion; it is I who have
created the unusual peril; it is for my benefit
that the explosives were used. As between myself
and my neighbor, I ought not to be permitted to
plead that it was the contractor's negligence and
not my own which damaged his property.

     But if the contractor should blow up his own
truck, I should not be liable. He is the expert
in explosives and not me [sic].    I had neither
the legal right nor the capability to supervise
his work.     The same would be true if the
contractor's workman had injured himself, or been
injured by the carelessness of a fellow workman
or the negligence of his employer.    Neither the
contractor nor his employees are "others", as
contemplated in Cooley's statement of the rule.
Indeed, they are privy to the contract which
creates the peril.

     The mischief of today's decision is not its
result, but its logic.       One assumes that a
company like General Motors has no want of access


                       12

     to expertise. It may well have safety engineers
     on its payroll far more knowledgeable about
     structural steel than the decedent's employer.
     But to predicate liability here on the Inglis,
     Olah, Wight and Watkins line of cases is to
     impose upon many, many other, less sophisticated
     defendants the same burden to attend to the
     safety   of   the   employees    of   independent
     contractors. [McDonough, supra at 453-456.]

     In Bosak v Hutchinson, 422 Mich 712, 724; 375 NW2d 333

(1985), this Court relied on Vannoy and McDonough for the

proposition       that        the    inherently           dangerous          activity

exception has, on occasion, been applied to employees of

contractors performing dangerous work.                     This Court did not

provide further analysis of this issue, however, given its

holding that assembling a crane after hours, the activity

involved   in    that     case,     did      not    constitute         a    dangerous

activity, but a routine construction activity.                         Id. at 728.

     Further, in Justus v Swope, 184 Mich App 91; 457 NW2d

103 (1990), on which the trial court in the instant case

relied,    the    Court       of    Appeals        stated,      “The       inherently

dangerous activity doctrine has, thus far, been found to

impose liability in cases involving owners fully capable of

recognizing      the    potential      danger.”           Id.    at        96,    citing

McDonough,    Vannoy,         and   others.         The    Court       declined        to

impose    liability      on    “mere   homeowners,”             id.    at        96,   for

injuries   that    an     employee     of     an     independent           contractor

sustained while removing a dead tree from the homeowners’


                                       13

yard.     The Court stated that it was unreasonable to expect

the    homeowners       to   be    cognizant        of    the       particular      risks

inherent in tree removal.                 Id. at 97-98.              Thus, the Court

seemingly would have imposed liability if the homeowners

had    been     aware   of     such      risks.         The    Court       opined     that

imposing liability in that case, however, was exactly the

fear     that      Justice     BRENNAN    expressed           in    his    dissent      in

McDonough.

                                         C. Analysis

        The analysis in Justice BRENNAN’s McDonough dissent is

persuasive and consistent with the longstanding common-law

principles discussed in our case law.                              When a landowner

hires an independent contractor to perform work that poses

a peculiar danger or risk of harm, it is reasonable to hold

the landowner liable for harm to third parties that results

from    the     activity.         If     an     employee      of    the    contractor,

however, negligently injures himself or is injured by the

negligence of a fellow employee, it is not reasonable to

hold    the     landowner       liable         merely     because         the   activity

involved        is   inherently        dangerous.             As     Justice        BRENNAN

recognized, the inherently dangerous activity doctrine was

designed      to     protect      third        parties,       not    those      actively

involved in the dangerous activity.




                                              14

       The Restatement of Torts echoes the above principle.

2 Restatement of Torts, 2d, § 416 provides:

            One who employs an independent contractor to
       do work which the employer should recognize as
       likely to create during its progress a peculiar
       risk of physical harm to others unless special
       precautions are taken, is subject to liability
       for physical harm caused to them by the failure
       of the contractor to exercise reasonable care to
       take such precautions, even though the employer
       has provided for such precautions in the contract
       or otherwise. [Emphasis added.]

Similarly, 2 Restatement of Torts, 2d, § 427 states:

            One who employs an independent contractor to
       do work involving a special danger to others
       which the employer knows or has reason to know to
       be inherent in or normal to the work, or which he
       contemplates or has reason to contemplate when
       making the contract, is subject to liability for
       physical harm caused to such others by the
       contractor’s    failure   to    take   reasonable
       precautions against such danger.        [Emphasis
       added.]

The text of the above provisions applies to “others.”              The

term   “others”    necessarily    refers   to   persons    other   than

those directly involved in the dangerous activity.

       Moreover,   all   the   illustrations    in   the   Restatement

pertaining to §§ 416 and 427 involve injuries to innocent

third parties and not to those directly involved in the

activity.    For example, the first illustration under § 416

provides:

            1. A employs B, an independent contractor,
       to erect a building upon land abutting upon a
       public highway. The contract entrusts the whole


                                  15

       work of erection to B, and contains a clause
       requiring the contractor to erect a sufficient
       fence around the excavations necessary for the
       erection of the building.    It contains also a
       clause by which the contractor assumes all
       liability for any harm caused by his work.    B
       digs the excavation but fails to erect a fence.
       In consequence, C, while walking along the
       highway at night, falls into the cellar and is
       hurt. A is subject to liability to C.

In the above illustration, C is an innocent third party and

is    not   directly    involved    in   the    dangerous    activity.

Similarly, C in the following illustration under § 427 is

an innocent third party:

           3. A employs B, an independent contractor,
      to excavate a sewer in the street. B leaves the
      trench unguarded, without warning lights, and C
      drives his automobile into it in the dark.   The
      danger is inherent in the work, and A is subject
      to liability to C.

Although a plurality of this Court in McDonough cited §§

416   and    427   of   the    Restatement     when   discussing   the

inherently    dangerous       activity   exception,    the   plurality

failed to recognize that the term “others” refers to third

parties, and not to those persons involved in the dangerous

activity.

      The Court of Appeals in Vannoy improperly extended the

inherently dangerous activity doctrine to include employees

of independent contractors.         We thus overrule the Court of

Appeals holding in Vannoy.           We also reject this Court’s

obiter dictum in Bosak to the extent that it approved of


                                   16

Vannoy’s extension of the doctrine.                     As our longstanding

precedent,      before       McDonough,        and    the   Restatement      make

clear,    the     inherently       dangerous         activity    exception     is

limited to third parties.6

      Further,     as    Justice     BRENNAN     recognized      in   McDonough,

allowing liability to be imposed on landowners for injuries

resulting    to    an    independent         contractor’s       employees    will

necessarily result in liability imposed not only on large

corporations      fully      capable      of     assessing      and   providing

safety    precautions,         but    also      on     “less    sophisticated”

landowners who may be unaware of such dangers or unable to

provide precautionary measures to avoid the inherent risk.

Indeed, in many situations it may be the risk itself that

prompts a landowner to hire an independent contractor in

the first instance.            A contractor who may specialize and

routinely engage in the activity would likely be better

able to perform the activity in a safe manner.                        Likewise,

the   contractor        is    probably       better     able     to   implement


      6
       Our concurring colleague opines that an exception to
this rule exists where a landowner retains control over the
work performed and is in a position to ensure that the
independent contractor takes adequate safety precautions.
Post at 2.   Because these circumstances are not presented
in this case, we express no opinion regarding whether a
landowner who has retained control over the dangerous work
may be subject to liability for injuries to a contractor’s
employee caused by the contractor’s negligence.



                                       17

reasonable       safety    precautions         for   the   protection      of    its

employees who perform the dangerous work, and this duty

accordingly lies with the contractor.                      We thus adhere to

the established common-law principle that this Court had

consistently followed before McDonough.

     Because       the    inherently         dangerous     activity     exception

does not apply when the injured party is an employee of an

independent       contractor      rather       than    a   third    party,       the

exception does not apply in the instant case.                      Accordingly,

the trial court properly granted summary disposition for

defendants.

                                 IV. CONCLUSION

     We    conclude       that    the    inherently        dangerous      activity

exception is limited to third parties and does not apply to

employees        of      independent         contractors        injured      while

performing       dangerous       work.         Because     plaintiff       was   an

employee of an independent contractor rather than a third

party,     the        doctrine    is     inapplicable        in     this     case.

Accordingly,       we     reverse      the     judgment    of     the   Court     of

Appeals.

                                             Maura D. Corrigan
                                             Michael F. Cavanagh
                                             Elizabeth A. Weaver
                                             Clifford W. Taylor
                                             Robert P. Young, Jr.
                                             Stephen J. Markman



                                         18

                  S T A T E      O F   M I C H I G A N 


                               SUPREME COURT 



ROBERT F. DESHAMBO,

      Plaintiff-Appellee,

and                                                Nos. 122939-122940

JENNIFER M. GRANHOLM, Attorney
General of the State of Michigan,
and MICHIGAN DEPARTMENT OF
COMMUNITY HEALTH,

      Intervening Plaintiff-Appellee,

v

NORMAN R. NIELSEN and PAULINE
NIELSEN,

      Defendants-Appellants,

and

CHARLES W. ANDERSON,

     Defendant.
_______________________________

KELLY, J. (concurring in result only).

      I agree with the result reached by the majority in

this case.       However, I write separately to point out that

the   majority    takes   no    cognizance   of   the   effect   of   its

analysis when read together with its decision in Ormsby v

Capital Welding, Inc, 471 Mich ___; ___ NW2d ___ (2004).               I

believe that our jurisprudence requires that a landowner
retaining          control        over     the      performance        of     inherently

dangerous          work    should        be   liable      for    an     injury    to    an

independent contractor's employee.                          The decision in this

case,       when    read        with   the    decision      in     Ormsby,       suggests

otherwise.1

        A landowner is generally not liable to the employee of

a     contractor          for    injuries        caused     by    the       contractor’s

negligence.          Ante at 5.            An exception has been made where

the     landowner          retained        control     of       the   job     site     and

inherently hazardous activities were undertaken.

        The Court holds today that a landowner is not liable

for a contractor’s negligence that injures the contractor's

employee engaged in an inherently dangerous activity.                                  Ante

at    14.      The        Court    adopts        Justice    Brennan’s         dissenting

analysis      in     McDonough         v   Gen    Motors2    and      holds    that    the

landowner has “'neither the legal right nor the capability

to supervise [the independent contractor’s] work.'”                                   Ante

at 12, quoting McDonough at 456.                      The landowner here is not

alleged to have retained control of the job site.


        1
       I dissented from the decision in Ormsby on the ground
that the inherently dangerous activity doctrine and the
retained control doctrine are distinct theories of tort
liability.
        2
       McDonough v Gen Motors Corp, 388 Mich 430; 201 NW2d
609 (1972).



                                              2 

       As previously indicated, a landowner is liable to a

contractor's employee if he retained control over hazardous

work and was positioned to ensure that the contractor took

adequate precautions.            Funk v General Motors Corp, 392 Mich

91, 105; 220 NW2d 641 (1974), overruled in part on other

grounds by Hardy v Monsanto Enviro-Chem Systems, Inc, 414

Mich 29; 323 NW2d 270 (1982).

       The retained control doctrine is a distinct theory of

liability.         It    applies       where        the    entity       engaging    the

services of the independent contractor has the legal right

and    the    capability        to   supervise           the    work.      Plummer     v

Bechtel Constr Co, 440 Mich 646, 659; 489 NW2d 66 (1992)

(opinion      by    Levin,       J).          The    doctrine        is    applicable

regardless of whether the employer is a landowner or a

general contractor.

       This    case      was    argued     and       submitted        together     with

Ormsby v Capital Welding, Inc.                      The Court in Ormsby holds

that   the     retained        control    doctrine,            applied    to     general

contractors        who    utilize        subcontractors,             is   merely     an

element of the common work area doctrine.                               It is not an

independent theory of liability.                    Ormsby at ___.

       If     Ormsby     is     held     to     apply          to   landowners,      the

decisions here and in Ormsby, read together, could have

unfortunate        unintended        results        in     future       cases.      The


                                          3 

inference to be drawn from them is this:                             a landowner who

retains control of inherently dangerous work on a job site

will not be liable for injuries to a contractor's employee

unless the injury occurred in a common work area.                                           The

majority denies the validity of this inference.                                       Id. at

___, n 13.          However, the opinion’s language strongly belies

that denial.

        Under the tort-reform statutes, liability is almost

always several only and not joint.                           MCL 600.2956.                Legal

liability is distinct from fault, although it is based on

fault.        Fault       is    determined       by    the       trier     of    fact3      who

assigns       it,    regardless         of   whether         a    party    can       be    held

legally       liable.          MCL    600.6304(1).               However,       an   injured

party       can    recover       only   from       a   party       that    can       be    held

legally liable.

        Under the preceding tort-reform statutes, the trier of

fact can assign fault to a landowner who has directed the

actions       of     an        independent       contractor          engaged          in     an

inherently         dangerous         activity.         The       Court’s    opinions         in

DeShambo and Ormsby could be interpreted to hold that such

a negligent landowner could escape all liability for injury

caused to the employee of his contractor.                                 The landowner


        3
            MCL 600.2957(1).



                                             4 

cannot     be    held    liable     under     the    inherently         dangerous

activity    doctrine.       DeShambo.           Neither     can    he    be   held

liable under the retained control doctrine.                  Ormsby.

     I believe that this result would be inconsistent with

principles underlying the common law.                     Moreover, it would

be   inconsistent        with     the     intent     of     the     tort-reform

statutes.         A negligent actor is intended to be legally

liable     for     his    actions.            The   majority        potentially

undermines this principle with the holdings in these two

cases.          Absent   language       correcting    this        problem,    the

analysis in the majority opinion is unacceptable to me and

I concur only in the result reached by the majority.

                                         Marilyn Kelly




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