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By: Anthony Caffrey, III

Cardelli Lanfear, P.C.

Royal Oak, MI

In a recent order, the Michigan Supreme Court reversed the Michigan Court of Appeals on the issue of whether a premises liability claim may be asserted against the owner of a construction site for an injury to an employee of subcontractor. For several decades, Michigan law has recognized that the owner of a construction site will only be liable for an injury to the employee of a subcontractor if the owner retained control of the construction site and the injured employee can satisfy the four elements of the common work area test. The common work area test is satisfied with proof that (1) the property owner failed to take reasonable steps within its supervisory and coordinating authority (2) to guard against readily observableand avoidable dangers (3) that created a high degree of risk to a significant number of workmen (4) in a common work area. These construction law principles are particularly beneficial to the many property owners that lack the expertise to appropriately monitor safety measures on a construction work site.

Because of the significant hurdle imposed by the common work area test elements, it has become all too common for a plaintiff to simply plead the matter as one for premises liability. Other plaintiffs plead both theories, hoping that at least one will survive summary judgment. Unfortunately, this creative pleading has caused some Michigan trial courts, and even the intermediate appellate court, to erratically appreciate these nuances. Over time, the construction law principles have weakened.

In Banaszak v Northwest Airlines, unpublished per curiam opinion of the Michigan Court of Appeals (Docket No. 263305, issued July 21, 2009), a Michigan Court of Appeals panel erroneously opined that an worker injured on a construction site could sue a property owner under both a construction law theory and a premises liability theory. Cardelli Lanfear, P.C. filed an application for leave to appeal to the Michigan Supreme Court. In lieu of granting leave, the Michigan Supreme Court unanimously reversed, opining that Northwest Airlines status as a property owner of a construction site required the plaintiff to satisfy the common work area test in order to recover. Banaszak v Northwest Airlines, 776 N.W.2d 910(2010). In so ruling, the Court confirmed that an owner of a construction site can only be sued if the injured employee satisfies the retained control and common work area tests. It is hoped that this decision will embolden lower courts to summarily dispose of lawsuits alleging a premises liability theory for a construction site injury.

Cardelli Lanfear, P.C. is an A/V rated firm that specializes in litigation matters with emphasis on personal injury and commercial defense litigation.It is dedicated to providing clients with the highest quality, cost effective legal services. The firms areas of concentration include product liability, general negligence, insurance defense, and toxic torts. Cardelli Lanfear, P.C. also handles wrongful discharge and employment discrimination matters and environmental hazard claims.In addition to this focus on litigation matters, the firm is involved in a substantial amount of appellate work.

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