Tremonti v. Beaumont Hosp.

DAVID TREMONTI, Plaintiff-Appellee, and JACOB DAUDLIN, Plaintiff, v. BEAUMONT HOSPITAL, Defendant-Appellant, and FERNDALE ELECTRIC COMPANY, INC., Defendant. DAVID TREMONTI, Plaintiff, and JACOB DAUDLIN, Plaintiff-Appellee, v. BEAUMONT HOSPITAL, Defendant-Appellant, and FERNDALE ELECTRIC COMPANY, INC., Defendant.

Nos. 353169, 353170

Court of Appeals of Michigan

September 23, 2021

UNPUBLISHED

Oakland Circuit Court LC No. 2018-169224-NO

Before: Rick, P.J., and Ronayne Krause and Letica, JJ.

Per Curiam

Plaintiffs David Tremonti and Jacob Daudlin both sustained electrocution injuries while replacing concrete sidewalks on defendant Beaumont Hospital's ("Beaumont") premises. Plaintiffs sued both Beaumont and the company investigating the matter for Beaumont, defendant Ferndale Electric Company Inc. ("Ferndale Electric"). Ferndale Electric settled with plaintiffs and the case proceeded to trial against Beaumont on plaintiffs' premises liability claims. A jury found that Beaumont was negligent and awarded damages to both plaintiffs. The trial court entered judgment in favor of both plaintiffs consistent with the jury verdicts. Beaumont appeals each judgment as of right. We affirm.

I. BACKGROUND

Plaintiffs were construction workers employed by Holsbeke Construction, Inc. ("Holsbeke"), which was retained by Beaumont to replace sidewalks at the hospital's Royal Oak campus. On August 15, 2017, another Holsbeke employee, Matthew Fleming, was removing a portion of the old sidewalk when he struck a conduit that had been shallowly buried under the sidewalk. The conduit contained electrical wires. It is undisputed that the conduit was not buried at a proper depth: conduit containing electrical wires should have been buried at least a foot deeper. Fleming notified Beaumont's exterior services manager, Nicholas Aseltine, and Fleming made sure that the area was barricaded with barrels and cautionary tape. At Aseltine's request, a Beaumont electrician investigated the exposed conduit, but the electrician recommended that an outside electrical contractor handle the matter. Ferndale Electric was asked to investigate the problem, but it was not able to begin its work until the next day. Aseltine told Fleming to wait until the electricians cleared the area before resuming work on the excavated area.

The next morning, plaintiffs began working in the excavated area where the conduit was located to prepare it for the new concrete to be poured. It had rained the night before, causing water to accumulate in the excavated area. Holsbeke's foreman for the project, Timothy Orosz, knew about the exposed conduit and saw it when he arrived on the jobsite. He was told by Holsbeke's office supervisor not to work in that area until the problem was resolved. Aseltine also told Orosz to stay out of that area until Beaumont could figure out what needed to be done. Aseltine asked Orosz to meet with the electricians from Ferndale Electric at the site. No one from Beaumont was present at that time. According to Orosz, the electricians informed him that the wires in the conduit were dead and there was nothing to worry about. Even though the electricians continued to work in the area, Orosz told his crew that they could work in the area where the conduit was located. According to Orosz, plaintiffs did not enter the restricted area until the electricians told Orosz that it was safe, which he interpreted as giving his crew permission to work.

Plaintiffs noted that it was common for areas where they worked to be barricaded or taped off. Because it had rained the night before plaintiffs started working in the area, and the conduit was therefore covered with water, plaintiffs did not initially notice the conduit. They only discovered the conduit after removing some of the water and mud. Plaintiffs were also aware of the electricians who were investigating the area, but no one told them not to work in the excavated area because of any hazard from the exposed conduit. Daudlin recalled overhearing something about a wire "being old and dead." While setting up concrete forms in the excavated area, Daudlin received a shock, which he described as "the most horrific thing I still have felt to this day." Tremonti admitted seeing the conduit before he was injured, but explained that he did not think it was hazardous because he knew that conduit that contains electrical wires is required to be buried at a greater depth, usually 18 to 24 inches below concrete. As Tremonti was removing water from the area, he too was shocked. Both plaintiffs were taken to the Beaumont Emergency Room. For purposes of this appeal, it is undisputed that they both sustained lasting injuries.

Electricians for both Beaumont and Ferndale Electric denied telling anyone that the crew could safely work in the excavated area before plaintiffs were shocked. The electricians initially tested the wire and did not receive a signal that it was electrified, but they later discovered that there was still power to the line and the hazard was not abated until a circuit was shut off, which occurred after plaintiffs were injured. It was later determined that the conduit had originally run to a booth that had been removed, and it was powered by a circuit breaker in a nearby machine room.

Plaintiffs filed this action against Beaumont and Ferndale Electric. They alleged claims for premises liability against Beaumont, negligence against Ferndale Electric, and a joint common-work-area negligence claim against both Beaumont and Ferndale Electric. Beaumont moved for summary disposition under MCR 2.116(C)(10). The trial court dismissed the common-work-area claim, but denied summary disposition with respect to the premises liability claim. Plaintiffs settled with Ferndale Electric and proceeded to trial on the premises liability claim against Beaumont. The jury returned verdicts in favor of plaintiffs, and the trial court later entered judgments for plaintiffs consistent with the jury's verdicts.

II. SUMMARY DISPOSITION

Beaumont argues that the trial court erred by denying its motion for summary disposition with respect to plaintiffs' claims for premises liability. Beaumont argues that the allegedly hazardous condition was open and obvious and, in any event, Beaumont met its duty to plaintiffs, regardless of whether plaintiffs are classified as invitees or trespassers. We disagree.

A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Id. at 120. A court may not assess credibility or determine disputed facts when reviewing a motion for summary disposition. Zamler v. Smith, 375 Mich. 675, 678-681; 135 N.W.2d 349 (1965).

A. TRESPASSERS OR INVITEES

In their complaint, plaintiffs alleged that they were invitees at the time they were injured. In Hoffner v. Lanctoe, 492 Mich. 450, 460; 821 N.W.2d 88 (2012), our Supreme Court explained:

The starting point for any discussion of the rules governing premises liability law is establishing what duty a premises possessor owes to those who come onto his land. With regard to invitees, a landowner owes a duty to use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions on the owner's land. Michigan law provides liability for a breach of this duty of ordinary care when the premises possessor knows or should know of a dangerous condition on the premises of which the invitee is unaware and fails to fix the defect, guard against the defect, or warn the invitee of the defect. [Footnotes omitted.]

However, as explained in Pippin v. Atallah, 245 Mich.App. 136, 145; 626 N.W.2d 911 (2001):

In Michigan, the general rule with regard to trespassers is that "[t]he landowner owes no duty to the trespasser except to refrain from injuring him by 'wilful and wanton' misconduct." This general rule has long been subject to the interpretation that, "after the owner of premises is aware of the presence of a trespasser or licensee, or if in the exercise of ordinary care he should know of their presence, he is bound to use ordinary care to prevent injury to them arising from active negligence." Schmidt v. Michigan Coal & Mining Co, 159 Mich. 308, 311-312; 123 N.W. 1122 (1909). "Active negligence," in this context, involves action or conduct. See Preston v. Austin, 206 Mich. 194, 201; 172 N.W. 377 (1919) ("before the principle of active negligence can apply, some duty must rest upon the defendant which is violated by his conduct or act"). Because the duty to refrain from active negligence only arises after the premises owner becomes aware, or should be aware, of the trespasser's presence, it follows that it does not encompass conduct that occurred before the trespasser arrived. [Citation omitted.]

"A 'trespasser' is a person who enters upon another's land, without the landowner's consent." Sitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596; 614 N.W.2d 88 (2000). A business invitee can become a trespasser by venturing into a non-public area without permission. See Constantineau v DCI Food Equipment, Inc, 195 Mich.App. 511, 514-516; 491 N.W.2d 262 (1992). However, that consent, permission, or invitation may be express or implicit. See Blakeley v. White Star Line, 154 Mich. 635, 637; 118 N.W. 482 (1908). "As a general rule, if there is evidence from...