                          STATE OF MICHIGAN

                           COURT OF APPEALS



ERIN AUSTIN,                                                       UNPUBLISHED
                                                                   February 21, 2017
               Plaintiff-Appellant,

v                                                                  No. 329655
                                                                   Oakland Circuit Court
WALT DISNEY PICTURES, also known as                                LC No. 2014-142777-NO
WALT DISNEY STUDIOS, and GO STUNTS,
INC.,

               Defendants-Appellees.


Before: STEPHENS, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

        Plaintiff appeals as of right the order of the trial court granting defendants, Go Stunts,
Inc. (Go Stunts) and Walt Disney Pictures, also known as Walt Disney Studios (WDP), summary
disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material fact). We affirm.

         Plaintiff was a stunt person on the set of the movie “Oz the Great and Powerful” (“Oz”).
Plaintiff was a direct employee of Cast and Crew Entertainment Services, Inc. (Cast and Crew).
On September 13, 2011, she was injured performing a stunt that involved being thrown into the
air, hitting a wall, and falling to the ground.1 Go Stunts provided the stunt equipment used for
the film pursuant to a contract with Michigan Motion Picture Productions, LLC (MMPP). WDP
was the financier and distributor of “Oz” pursuant to an agreement it had entered with Emerald
City Films, Inc. (Emerald City). Following her accident, plaintiff filed suit against Go Stunts
and WDP.

                                       I.    GO STUNTS

              A.     PLAINTIFF’S ORIGINAL CLAIM AGAINST GO STUNTS




1
  Plaintiff received workers’ compensation benefits through her employer, which has a statutory
lien against her recovery in this case. MCL 418.827(5).



                                               -1-
        Plaintiff’s original allegations against Go Stunts were that it was responsible for rigging
and directing the stunt and that it performed these tasks negligently, causing her injury. Go
Stunts argues that any negligence action against it must fail because it did not owe plaintiff a
duty. “The threshold question in a negligence action is whether the defendant owed a duty to the
plaintiff.” Fultz v Union-Commerce Assocs, 470 Mich 460, 463; 683 NW2d 587 (2004). The
relevant factors for determining whether a duty should be imposed are “the relationship of the
parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk
presented.” Murdock v Higgins, 454 Mich 46, 53; 559 NW2d 639 (1997).2

        The individual who directed the stunt was Scott Rogers. Rogers appears to have had a
dual role. He was the owner of Go Stunts and testified that even while on set he served as a
“representative” of that company. However, he was not paid by Go Stunts for his work on set.
On set, he was employed by Cast and Crew, the same company as plaintiff, and Go Stunts took
the position that he rigged and directed the stunts only in his capacity as an employee of Cast and
Crew.3 Rogers testified consistently with Go Stunts’s position in this case, that Go Stunts was
purely an equipment rental company and had no duties regarding the use of equipment or
direction of stunts. The lease agreement by which Go Stunts provided equipment to MMPP is
also consistent with that position. Indeed, plaintiff has not referred us to any provisions in the
lease that she claims sets forth such a duty. The lease reads in pertinent part:

         Lessee, at its own expense, shall maintain each item of Equipment in good
         mechanical condition and running order. Lessee agrees to properly care for the
         Equipment in the use and storage thereof, to keep Equipment in a covered area
         when not in use, to keep Equipment clean, to use and operate Equipment within
         its rated capacity, to restrict the use, and operation thereof to safe, careful, trained
         and competent personnel selected, employed and controlled by Lessee and/or its
         sublessee(s) and to notify Lessor immediately of any accident affecting the
         Equipment, setting forth all relevant facts, and thereafter promptly furnishing to
         Lessor in writing all information required by Lessor in connection therewith.
         Lessee shall be liable for any and all damage to the Equipment due to its failure to
         observe any of the foregoing. If any unit of Equipment is damaged as the result
         of abusive or other improper usage, Lessee agrees to pay Lessor promptly for all
         costs and expenses incurred by Lessor in connection with repairing the Equipment
         damaged. The rent on any of the Equipment will not be prorated or abated while
         the Equipment is being serviced or repaired for any reason for which Lessee is
         liable. Lessor will not be under any liability or obligation in any manner to
         provide service, maintenance, repairs, or parts for the Equipment, except that
         Lessor will replace any Equipment that malfunctions or becomes inoperable
         through no fault of the Lessee at no cost to Lessee . . . .



2
 The existence of a duty is a legal question decided by the trial court, which we review de novo.
Hill v Sears, Roebuck & Co, 492 Mich 651, 659; 822 NW2d 190 (2012).
3
    Because he and plaintiff were co-employees, Rogers could not be sued. MCL 418.827(1).



                                                   -2-
                                               * * *

        Lessee will use the Equipment in a careful and proper manner and will not permit
        any of the Equipment to be operated or used in violation of any applicable federal,
        state, or local statute, ordinance, rule or regulation relating to the possession, use,
        or maintenance of the Equipment.

        Plaintiff argues, however, that Rogers’s testimony and one of Go Stunts’s answers to her
interrogatories demonstrate that Go Stunts voluntarily assumed additional duties. Specifically
plaintiff’s interrogatory #7 asked Go Stunts to “[i]dentify all persons who were involved in
maintaining the harness and associated equipment on the set of Oz the Great and Powerful.” In
response, after Go Stunts objected to the request as overly broad, it stated, “Subject to and
without waiving these objections, Go Stunts was responsible for maintaining Go Stunts’s
harness. Go Stunts met all its obligations under Equipment Lease agreement with [MMPP] to
keep the equipment ‘in good mechanical condition and running order.’ ” During Rogers’s
deposition, plaintiff’s counsel directed his attention to this interrogatory answer and asked how
Go Stunts could maintain the equipment if, as Rogers said, it had no employees. After indicating
that he determined if equipment needed to be fixed or destroyed, but not as an employee of Go
Stunts, Rogers further stated, “I as a representative, not an employee, as a representative of Go
Stunts, determine when the equipment is provided -- put forth in front of me by the rigging
department of the film, I determine whether it’s to be fixed by an outside source or whether it’s
to be destroyed.”

        We disagree with plaintiff’s claim that these statements demonstrate that Go Stunts had
voluntarily assumed a duty to inspect and maintain the equipment on site. The lease does not
contain any provision requiring Go Stunts to maintain the equipment during the lease and, more
to the point, expressly disclaims any such duty and all warranties. If any duty to maintain the
equipment can be read into the contract or the interrogatory answer, a proposition that appears
unlikely, it was clearly limited to maintaining the equipment between leases, i.e. while it was in
Go Stunts’s possession. Similarly, Rogers’s testimony was not that he, as owner of Go Stunts,
inspected equipment on set; rather, he testified that if he was notified on set that a piece of
equipment was defective, then, on behalf of Go Stunts, he would determine whether the
equipment could be repaired or must be replaced. That does not imply a duty on behalf of Go
Stunts to inspect or maintain the equipment on site.

        Rogers’s dual role does complicate the analysis in this case. However, it is clear that all
of Rogers’s responsibilities to inspect and maintain equipment on set; to plan, stage and direct
stunts; and to assure that the stunts were performed safely were in his capacity as an employee of
Cast and Crew, not as a representative of Go Stunts. Therefore, defendant Go Stunts was
entitled to summary disposition as to plaintiff’s original claim.

   B.      PLAINTIFF’S REQUEST TO AMEND HER COMPLAINT TO ADD A COUNT
                        ALLEGING DEFECTIVE EQUIPMENT

       Plaintiff next argues that the trial court erred when it denied her the opportunity to amend
her complaint. Contrary to the original complaint, which focused on an alleged failure to
properly plan the stunt or to properly use the equipment, the proposed amended complaint


                                                 -3-
focused on an allegation that the equipment provided by Go Stunts was defective when
delivered. While plaintiff’s original complaint sounded strictly in allegations of negligence, the
proposed amended complaint sounded in allegations of products liability. We review, for an
abuse of discretion, the denial of a motion to amend a complaint. Diem v Sallie Mae Home
Loans, Inc, 307 Mich App 204, 215-216; 859 NW2d 238 (2014). “[I]f the trial court’s decision
results in an outcome within the range of principled outcomes, it has not abused its discretion.”
Wormsbacher v Seaver Title Co, 284 Mich App 1, 8; 772 NW2d 827 (2009). A trial court has
discretion to deny a motion to amend a complaint for “particularized reasons such as undue
delay, bad faith or dilatory motive, repeated failures to cure by amendments previously allowed,
or futility.” In re Estate of Kostin, 278 Mich App 47, 52; 748 NW2d 583 (2008).

        We reject plaintiff’s claim that the trial court abused its discretion in denying her leave to
amend her complaint. Initially, the amendment was exceptionally tardy as it came only three
weeks before trial in a case that had been pending for over a year and that had previously been
filed and voluntarily dismissed. While “[d]elay, alone, does not warrant denial of a motion to
amend . . . a court may deny a motion to amend if the delay was in bad faith or if the opposing
party suffered actual prejudice as a result.” Weymers v Khera, 454 Mich 639, 659; 563 NW2d
647 (1997).

         More significantly, the sought amendment was futile. Richard v. Schneiderman &
Sherman, PC (On Remand), 297 Mich App 271, 274-276; 824 NW2d 573 (2012). Plaintiff
testified that the stunt was rehearsed numerous times without incident immediately before her
injury but offers no theory, let alone evidence, as to how a winch or ratchet that had been
delivered with a significant defect would function properly for an extended period after delivery,
but then suffer a catastrophic failure without any intervening change or recalibration. Indeed,
plaintiff implicitly recognized this by initially pursuing her claim on a theory that the equipment
was improperly set or adjusted on-site for the subject stunt. Plaintiff has not even come forward
with any evidence that the manner in which plaintiff was injured can occur due to a defective
device rather than one that has been improperly used by the person controlling it.

        Plaintiff argues that the need to amend arose from late-arising disagreement concerning
the mechanism by which the stunt was performed. Plaintiff testified (and her experts averred)
that the stunt was performed using a ratchet or winch, i.e. mechanical equipment provided by Go
Stunts. Rogers and several other workers on set testified that the stunt was a “hand-pull” stunt
in which the stunt person is pulled upwards by a cable when a person on the other end of the
cable jumps off a ladder. Plaintiff also argues that a second video produced by defendant
purporting to show the stunt being done as a “hand-pull” was made on a different set and with a
different stunt person.4 It is clear that there is a factual dispute in this regard. However, the
accuracy of that video is of no consequence in regard to the motion to amend. Plaintiff has
always asserted that the stunt was done mechanically and could have, at any time, sought to



4
  Defendant maintains that the tape is accurate but also offers various explanations as to how
provision of an inaccurate tape might have occurred. We express no opinion as to the tape’s
accuracy.



                                                 -4-
amend her complaint to allege provision of defective equipment, in addition to, or instead of,
negligent use of the device on set by Rogers.5

         The trial court’s decision denying plaintiff leave to amend her complaint, whether
implicit or explicit, was within the range of reasonable and principled outcomes, and we do not
find it to be an abuse of discretion.

                                          II.     WDP

        Plaintiff argues that the trial court erred when it granted WDP’s motion for summary
disposition because there is a genuine issue of material fact regarding WDP’s duty to plaintiff.
She claims that the evidence establishes that WDP retained and exercised a sufficient level of
control over the production of “Oz” to make it responsible for workplace safety. We disagree.

        To support her argument that the trial court erred in granting WDP’s motion for summary
disposition, plaintiff relies on the theory of retained control addressed in Plummer v Bechtel
Constr Co, 440 Mich 646; 489 NW2d 66 (1992), Candelaria v BC Gen Contractors, Inc, 236
Mich App 67; 600 NW2d 348 (1999), and Burger v Midland Cogeneration Venture, 202 Mich
App 310; 507 NW2d 827 (1993). Specifically, she argues that WDP retained sufficient control
over “Oz” to have been responsible for safety on set, including safety related to the stunts.

        The cases plaintiff cites generally involve an analysis of a property owner or general
contractor’s liability to employees of subcontractors who are injured on the job. In Plummer, for
example, a subcontractor employee, injured at work, brought suit against the owner of the work
site and the general contractor. Plummer, 440 Mich at 648-649, 651 (opinion by LEVIN, J.). In
Burger, the plaintiff, a subcontractor employee, was injured in a construction accident and
brought suit against the owner of the plant he was working on at the time of the injury. Burger,
202 Mich App at 311. Finally, in Candelaria, a cable television service hired an independent
contractor to install its television service, and that contractor hired another independent
contractor to perform a portion of the work. 236 Mich App at 70. The plaintiff, a subcontractor
employee, was killed while performing the work. Id. Therefore, we must determine if a genuine
issue of material fact exists regarding whether WDP retained sufficient control over “Oz” to have
been responsible for workplace safety and thus owed a duty to plaintiff.

        Generally, “when an owner or general contractor hires an independent contractor to
perform a job, the owner or general contractor may not be held liable in negligence to third
parties or employees of the independent contractor.” Id. at 72. The independent contractor is
responsible for workplace safety. Id. However, “[o]ne commonly recognized exception to the


5
  Plaintiff argues that she could not have inspected the subject machine because defendant,
having falsely asserted that no machine was used in this stunt, was refusing to produce the
relevant device. However, plaintiff could have requested identification and inspection of the
mechanical stunt devices that were on set that day, or even all mechanical stunt devices used
during the filming at this location. We find no such requests and no motion to compel such an
inspection in the record.



                                                -5-
general rule is the ‘doctrine of retained control.’ ” Id. Retention of control provides the basis for
the finding of a duty to exercise that control with reasonable care. Id. at 73. The retained control
doctrine only applies where there is a “common work area.” Ormsby v Capital Welding, 471
Mich 45, 48-49; 684 NW2d 320 (2004).

       To establish the liability of a general contractor . . . a plaintiff must prove four
       elements (1) that the defendant contractor failed to take reasonable steps within its
       supervisory and coordinating authority (2) to guard against readily observable and
       avoidable dangers (3) that created a high degree of risk to a significant number of
       workmen (4) in a common work area. [Id. at 57.]

        Plaintiff has failed to create a question of fact as to any of these factors. There is no
evidence that WDP failed to take reasonable steps within its supervisory authority. Its contract
with Emerald City made clear that the responsibility for day-to-day safety issues rested with
Emerald City. And unlike the situation in Plummer, where the project owner had 125 employees
on site including 20 safety inspectors, here, a single WDP representative visited the set on only a
few occasions in order to receive production status reports. Plaintiff also has not demonstrated
that the danger was “readily observable” or that the risk it created affected “a significant number
of workmen . . . in a common work area.”6 Because plaintiff has not presented evidence that
WDP retained and exercised sufficient control over the production of “Oz” to make it
responsible for workplace safety under the test articulated by our Supreme Court in Ormsby, the
trial court did not err in granting WDP’s motion for summary disposition.

       Affirmed.



                                                              /s/ Cynthia Diane Stephens
                                                              /s/ Deborah A. Servitto
                                                              /s/ Douglas B. Shapiro




6
  Plaintiff has not directed us to any evidence indicating that the operation of stunt winches or
ratchets is likely to affect multiple employees of various employers. Rather, it appears that
malfunction of such a device would predominantly, if not exclusively, affect only stunt persons,
the number of which, and employers of which, are not identified.




                                                -6-
