Court of Appeals sends worker's fall claim back to Oakland County for trial
George Frommert fell twenty feet from a defective scaffold after stepping from a bucket truck to the scaffold to gather construction debris. The scaffold had been moved to its current location by a sub-contractor, Teera Construction Company, and left in an unstable condition without warnings. Frommert sued Teera for common law negligence. The trial court and two judges of the Court of Appeals agreed that Teera was entitled to summary disposition, relying on a mistaken interpretation of the Fultz "contractual immunity" holding by the Engler Majority of Michigan's Supreme Court. Frommert appealed to the Michigan Supreme Court.
In the Fultz decision, the Engler Majority had pronounced a theory of contract interpretation under which inclusion of any specific duty in a contract resulted in the elimination--rather than the reinforcement--of that duty to outside parties. If, as in Frommert's case, the General Contractor required subs to properly maintain scaffolding in a general work area, the contract provision rendered the sub immune from a negligence claim by the employees of other subcontractors.This unique and rather absurd and illogical result was maintained for several years and seemingly reaffirmed by the Supreme Court. It was followed by lower courts, sometimes reluctantly and on other occasions with a vengeance. A few judges, like Judge Gleicher, in a dissent in Frommert I, continued to resist the application of Fultz and to criticize the underlying lack of logic. This year, the Supreme Court confirmed that the Fultz decision was being applied too liberally to excuse contracting parties from common law duties owed to third parties.
Soon afterward, the high court returned George Frommert's case to the Court of Appeals to analyze whether it should be reinstated. This time around, all three judges on the panel subscribed to Judge Gleicher's analysis and reversed the dismissal of Frommert's negligence action. The Court noted that Teera owed a common law duty to make the scaffold safe for other subcontractor's employees and not to leave it erected without proper stabilization or warnings. It also rejected Teera's claim that it was legally unforeseeable that another sub's employee would utilize the scaffold without fall protection.