                           STATE OF MICHIGAN

                             COURT OF APPEALS



MARK PAWLICKI,                                                       UNPUBLISHED
                                                                     February 14, 2017
               Plaintiff-Appellee,

v                                                                    No. 330156
                                                                     Oakland Circuit Court
TRU-WALL CONSTRUCTION COMPANY,                                       LC No. 2014-143967-NO
INC.,

               Defendant-Appellant,
and

SUPERB CUSTOM HOMES, LLC, SUPERB
CUSTOM HOMES OF NORMANDY HILLS,
LLC, SUPERB CUSTOM HOMES OF ASBURY
PARK, LLC,

               Defendants.



Before: RONAYNE KRAUSE, P.J., and O’CONNELL and METER, JJ.

PER CURIAM.

       Defendant Tru-Wall Construction Company, Inc., appeals by leave granted the trial court
order denying its motion for summary disposition. This case arose from an accident that
occurred at a residential construction site. Plaintiff Mark Pawlicki tripped over a re-enforcement
bar (rebar) or a grounding rod that was protruding from the home’s foundation, and fell
approximately eight feet into the basement, fracturing his leg. Tru-Wall was the subcontractor
that poured the foundation walls on the construction site. Superb Custom Homes of Asbury
Park, LLC, was the general contractor for the construction site.

        Plaintiff filed a complaint claiming that as a result of defendants’ negligence, he suffered
extensive injuries to his right leg. Tru-Wall sought summary disposition pursuant to MCR
2.116(C)(10) on the grounds that it did not owe a legal duty to plaintiff, that it did not breach any
legal duty owed to plaintiff, that it was required to install the rod over which plaintiff allegedly
tripped, and that the rod was an open and obvious condition on the premises. The trial court
concluded that, viewing the evidence in the light most favorable to the nonmoving party, there
was a genuine issue of material fact regarding whether Tru-Wall breached its duty owed to

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plaintiff and whether that breach caused plaintiff’s injury. In addition, the trial court held that
the open-and-obvious doctrine did not apply to the instant case because plaintiff’s allegations
sounded in ordinary negligence. We affirm.

       First, Tru-Wall argues that the trial court erred by finding that the open-and-obvious
doctrine was inapplicable to this case. We disagree.

        This Court reviews de novo a trial court’s ruling regarding a motion for summary
disposition. Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406
(2001). When reviewing a motion brought pursuant to MCR 2.116(C)(10), this Court “must
consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence
in favor of the party opposing the motion.” Baker v Arbor Drugs, Inc, 215 Mich App 198, 202;
544 NW2d 727 (1996). “Where the proffered evidence fails to establish a genuine issue
regarding any material fact, the moving party is entitled to judgment as a matter of law.” Maiden
v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).

       “In order for plaintiff to establish a prima facie case of negligence, he must prove (1) that
defendant owed a duty to him, (2) that defendant breached that duty, (3) that defendant’s breach
of duty was a proximate cause of his damages, and (4) that he suffered damages.” Taylor v
Laban, 241 Mich App 449, 452; 616 NW2d 229 (2000). However, “Michigan law distinguishes
between claims arising from ordinary negligence and claims premised on a condition of the
land.” Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 692; 822 NW2d 254 (2012).
The open-and-obvious doctrine applies to actions “based on premises liability, but not ordinary
negligence.” Hiner v Mojica, 271 Mich App 604, 615; 722 NW3d 914 (2006). “[T]he
applicability of the open and obvious danger doctrine depends on the theory underlying the
negligence action.” Id.

        Here, plaintiff’s complaint indicates that his claim is based on Tru-Wall’s alleged
violation of its duty owed to plaintiff by:

                (a) leaving the re-rod exposed and sticking out;

                (b) failing to remove the re-rod from sticking out;

              (c) failing to leave warnings that the re-rod was sticking out and creating a
       dangerous condition[;]

               (d) In otherwise failing to act as a reasonable and prudent contractor,
       under like and similar circumstances;

                (e) Other acts of negligence, which are herewith reserved for the time of
       trial.

        Plaintiff alleged that his injuries were caused by Tru-Wall’s conduct in leaving the metal
rod exposed and failing to remove it before plaintiff arrived on the job site. Plaintiff is not
claiming that his injuries arose solely from a dangerous condition on the land. As a result,
plaintiff’s claim sounds in ordinary negligence and not premises liability. Hiner, 271 Mich App
at 615 (stating that the “plaintiff’s claim . . . based on [the] defendant’s failure to reasonably
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control the dog” was based on ordinary negligence); see also Woodman v Kera, LLC, 280 Mich
App 125, 153; 760 NW2d 641 (2008) (opinion of TALBOT, J.) (“When an injury develops from a
condition of the land, rather than emanating from an activity or conduct that created the
condition on the property, the action sounds in premises liability.”). Accordingly, the trial court
properly found that the open-and-obvious doctrine was inapplicable to the instant case.

        Second, Tru-Wall asserts that the trial court erred by denying its motion for summary
disposition on the basis that there was a genuine issue of material fact concerning whether Tru-
Wall breached its duty by leaving the rebar or grounding rod “sticking out” of the foundation.

        Typically, “whether a duty exists depends in part on foreseeability: whether it was
foreseeable that a defendant’s conduct may create a risk of harm to another person and whether
the result of that conduct and intervening causes was foreseeable.” Ghaffari v Turner Const Co
(On Remand), 268 Mich App 460, 465; 708 NW2d 448 (2005) (quotation marks and citations
omitted). “Although a subcontractor has no duty under the common work area doctrine[1] to
make a work site safe for the employees of another subcontractor, a subcontractor has a common-
law duty to act in a manner that does not cause unreasonable danger to the person or property of
others[.]” Id. (citation omitted; emphasis added). Further, a “plaintiff can raise a legitimate
claim of active negligence by showing that [a] defendant negligently performed an act and that
its negligent performance was likely to result in harm.” Johnson v A & M Custom Built Homes
of West Bloomfield, LPC, 261 Mich App 719, 725; 683 NW2d 229 (2004).

        Here, Tru-Wall, as a subcontractor, owed a duty to plaintiff “to act in a manner that does
not cause unreasonable danger to the person or property of others[.]” Ghaffari, 268 Mich App at
465. Viewing the evidence in the light most favorable to the nonmoving party, plaintiff
established a genuine issue of material fact regarding whether Tru-Wall breached its duty by
negligently leaving the rebar or grounding rod “sticking out” of the foundation.

        In its motion for summary disposition, Tru-Wall argued that it owed no duty to plaintiff
because Tru-Wall and plaintiff were both subcontractors. Tru-Wall poured the foundation
approximately two months before plaintiff’s injury. In addition, Tru-Wall asserted that “there
was no evidence that Tru-Wall performed its job in a negligent manner or created a new hazard
for [plaintiff].” To support its position, Tru-Wall noted that witnesses testified that a grounding
rod was required by law to be installed in new home constructions. Tru-Wall noted that plaintiff
admitted he was aware of this regulation and that there was no evidence that any other workers


1
  The common work area doctrine “is an exception to the general rule of nonliability of property
owners and general contracts for injuries resulting from the negligent conduct of independent
subcontractors or their employees.” Ormsby v Capital Welding, Inc, 471 Mich 45, 55-56; 684
NW2d 320 (2004). However, for “a general contractor to be held liable under [the doctrine], a
plaintiff must show that (1) the defendant, either the property owner or general 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 54.


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were injured between the time that Tru-Wall installed the rod and the day of plaintiff’s accident.
Finally, Tru-Wall contended that Tru-Wall employees did not “haphazardly erect[] a dangerous
condition on the premises” and that there was no evidence that Tru-Wall failed to exercise care
in installing the rod.

         In his response, plaintiff asserted that Tru-Wall owed a duty to plaintiff. Further, plaintiff
contended that the metal bar in question “was left sticking out of the foundation by over 1 foot[,]
creating a hazard.” In support of his position, plaintiff noted that evidence from plaintiff and his
coworker indicated that the bar should not have been “sticking out” of the foundation wall and
that true grounding rods are different from the item in question. Plaintiff concluded that there
was no evidence that supported Tru-Wall’s position that it was required by the building code to
install the bar in the manner that it was installed.

         The trial court found that there was no genuine issue of material fact concerning whether
Tru-Wall owed a duty to plaintiff; it concluded that such a duty existed. However, the trial court
concluded that there was a genuine issue of material fact concerning whether Tru-Wall breached
its duty in installing the foundation wall with the rod. We find no error with regard to the trial
court’s conclusions. Although there is evidence in the record that supports Tru-Wall’s
contention that grounding rods are required to be installed in all new home constructions, it is
unclear whether the metal bar in question was a true and properly-installed grounding rod. As a
result, the trial court’s denial of summary disposition was proper because “giving the benefit of
reasonable doubt to [plaintiff] would leave open an issue upon which reasonable minds might
differ” regarding whether Tru-Wall breached its duty by negligently installing the bar. Shallal v
Catholic Social Servs of Wayne Co, 455 Mich 604, 609; 566 NW2d 571 (1997).

       Tru-Wall also appears to be arguing that the trial court used an improper standard in
evaluating Tru-Wall’s motion.

        MCR 2.116(C)(10) states that summary disposition is proper if, “[e]xcept as to the
amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” Further:

               A motion under subrule (C)(10) must specifically identify the issues as to
       which the moving party believes there is no genuine issue as to any material fact.
       When a motion under subrule (C)(10) is made and supported as provided in this
       rule, an adverse party may not rest upon the mere allegations or denials of his or
       her pleading, but must, by affidavits or as otherwise provided in this rule, set forth
       specific facts showing that there is a genuine issue for trial. If the adverse party
       does not so respond, judgment, if appropriate, shall be entered against him or her.
       [MCR 2.116(G)(4).]

“The moving party may thus satisfy its burden under MCR 2.116(C)(10) by submit[ting]
affirmative evidence that negates an essential element of the nonmoving party’s claim or by
demonstrat[ing] to the court that the nonmoving party’s evidence is insufficient to establish an
essential element of the nonmoving party’s claim.” Lowrey v LMPS & LMPJ, Inc, __ Mich __,
__; __ NW2d __ (2016) (Docket No. 153025); slip op at 5 (quotation marks and citations
omitted). The Michigan Supreme Court stated that MCR 2.116(C)(10) “plainly requires the

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adverse party to set forth specific facts at the time of the motion showing a genuine issue for
trial.” Id., slip op at 6. (quotation marks and citation omitted).

        In Tru-Wall’s motion for summary disposition, it asserted that it did not breach a duty
because it was required by law to install the alleged grounding rod. However, plaintiff
responded that evidence indicated that the bar was not actually a grounding rod, and that it
should not have been “sticking out” of the foundation. Therefore, plaintiff set forth a genuine
issue for trial. Id. A finder of fact must determine whether Tru-Wall breached its duty by
leaving the item in its position and if this caused plaintiff’s fall. Accordingly, the trial court’s
denial of summary disposition was proper. Shallal, 455 Mich at 609. The trial court properly
stated that plaintiff had not definitively demonstrated Tru-Wall’s negligence but that plaintiff
sufficiently set forth a genuine issue of material fact for trial.

       Affirmed.



                                                             /s/ Amy Ronayne Krause
                                                             /s/ Peter D. O'Connell
                                                             /s/ Patrick M. Meter




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