Szymanski v. K mart Corp.

Per Curiam. Pursuant to the remand order of the Supreme Court vacating our prior decision, we again consider whether the jury verdict in this case can be sustained on a theory of independent negligence.1 We conclude that it cannot, and again reverse. Plaintiff John M. Szymanski, an employee of Cadillac Window Cleaning Company, was injured when he fell from a scaffold suspended approximately forty feet above the ground while washing [350] windows at defendant K mart Corporation’s world headquarters. In our original opinion, we determined that the trial court erred in denying defendant’s motion for a directed verdict on the basis of its findings that defendant retained control of the work being performed by the independent contractor, Cadillac Window Cleaning Company, and that the work being performed was inherently dangerous. Szymanski v K mart Corp, 196 Mich App 427; 493 NW2d 460 (1992). We also rejected plaintiff’s argument that the verdict in his favor should be upheld because the jury found defendant to be independently negligent. We concluded that the theory of independent negligence was not presented to the jury. After reconsidering the issue, we have reached the same conclusion. On remand, plaintiff argues that the verdict of the jury should be upheld because defendant was negligent in failing to act after being placed on notice of the deficient safety practices of the independent contractor and in failing to require that Cadillac take reasonable safety precautions. Plaintiff also asserts that the verdict of the jury should be upheld because defendant "is liable for negligence under the theory of premises liability upon which the jury was instructed at trial.” However, we continue to hold that the only theories of liability presented to the jury were those based upon retained control and inherently dangerous activity. The trial court did instruct the jury that a possessor of land has a duty to exercise reasonable care for the protection of an invitee.2 However, the court went on to state: As a general rule, an owner of the property is [351] not liable to an employee of an independent contractor. There are two exceptions to this rule. The first exception is that an owner may be liable if the work it hires the independent contractor to do involves an inherently dangerous activity. . . . If you find that John Szymanski was engaged in an inherently dangerous activity, and his injuries resulted from the negligence of Cadillac Window Washing [sic] Company, you may find K-Mart liable for those injuries. If you find that the work John Szymanski was engaged in was not inherently dangerous, K-Mart cannot be found liable under this theory. There’s a second exception to the rule that the owner of the property is not liable to an employee of an independent contractor. Generally, the independent contractor is responsible for job safety and maintaining a safe work place. However, in situations where the property owner has retained and exercised sufficient control over the task, the owner must be held responsible for job safety and maintaining a safe work place. [The] [possessor or occupier of a place of business who owes this duty to John Szymanski may not delegate that responsibility to another and thus avoid liability. It’s for you to determine based on the evidence presented whether K-Mart truly delegated the task to the independent contractor or retained and exercised sufficient control over it. If you find that K-mart exercised such control, you may find it liable for any injuries caused by his [sic] failure to maintain a safe work place. Moreover, the jury was presented with a verdict form that indicated that any liability on the part of defendant was based upon either the doctrine of retained control or the doctrine of inherently dangerous activity. The verdict form provided, in pertinent part: [352] Question No. 1: Did the defendant (k-mart) retain and exercise sufficient control? Answer:_(Yes or No) Question No. 2: Was the work being performed by plaintiff’s employer inherently dangerous? Answer:_(Yes or No) (If you answered "no” to both questions go no further) (If you answered "yes” to either one or both questions go on to Question No. 3) Question No. 3: Was the defendant negligent? Answer:_(Yes or No) Thus, it is clear that, according to the verdict form, the jury could only reach the issue of defendant’s negligence if it accepted the retained control exception or the inherently dangerous activity exception, or both.3 There were no other alternatives presented to the jury. We concluded in our prior opinion that the trial court erred in denying defendant’s motion for a directed verdict because the evidence presented at trial did not support a finding that either exception was applicable. We adhere to that ruling. There is no other basis upon which the verdict can be upheld. Reversed. Footnotes [1] See Szymanski v K mart Corp, 442 Mich 912; 503 NW2d 449 (1993). [2] Before this instruction, the court defined the terms "negligence,” "ordinary care,” and "proximate cause.” [3] Plaintiff did not object to the instructions read to the jury. Additionally, there is no indication that plaintiff objected to the jury verdict form.