New Liability Worry For Builders

February 14, 2005
Text Size:
GRAND RAPIDS — A Michigan Court of Appeals decision has handed contractors a relatively unknown liability action to be aware of: the nuisance complaint.

A negligence complaint is normally the claim a plaintiff brings against a builder, when a plaintiff feels that a contractor is liable for damages he or she suffered as the result of a job.

But a negligence suit offers a builder some built-in liability protection, while a nuisance complaint doesn't offer that security.

At least, that is the message the appellate ruling has for contractors.

The case in question involved a construction company that disregarded blueprints and built a restaurant roof at an angle that directed water to the main entrance. The water froze during a cold spell and the resulting ice in front of the entrance caused a plaintiff to fall and injure himself.

The plaintiff's attorney filed a negligence suit in circuit court to collect damages for pain and suffering from the builder, but lost.

"When you have a negligence case, one of the elements that has to be shown is some sort of legal duty to the injured person," said Bruce Courtade, a member of the construction law group and a partner in the local office of Rhoades McKee.

Under the law, the plaintiff was an invitee to the restaurant and the court considered the ice at the entrance as an "open and obvious condition" that a reasonable person should have seen. That meant the builder didn't have a legal duty to warn invitees about the ice, but did have a successful argument to get the negligence suit thrown out.

"This attorney was facing a motion from the defense counsel saying, 'We don't owe you a legal duty.' The plaintiff's attorney then asked the court for permission to amend the pleading to file a nuisance action," said Courtade.

"Under negligence law, there is this absolute defense that is open and obvious," he added.

The circuit court granted the defense motion to dismiss the case and refused to amend the change from a negligence complaint to a nuisance suit. So the plaintiff's attorney took his plea to the Michigan Court of Appeals, where those justices agreed with the request and amended the complaint from a negligence to a nuisance charge.

The plaintiff won and the builder had to pay damages. How come?

"'Open and obvious' does not apply to nuisance cases," said Courtade.

Courtade explained that "open and obvious" applied to the peril that caused the injury, which, in the negligence case, was the ice. But the nuisance complaint changed the peril from the ice to the slope of the roof the contractor built.

"The nuisance claim doesn't focus on the ice but looks at what caused the ice. And that was the improper construction of this roofline that left a valley right above the main entrance so the water would naturally drip down and cause the ice," he said.

The appellate court went on to rule that the open-and-obvious doctrine is not a blanket defense to all actions that arise on a property. Contractors can find themselves at greater risk facing a nuisance claim than a negligence suit, without the defense a negligence filing offers.

"In the court of appeals' mind, in this case there was enough of an issue to survive summary disposition. In the past, under negligence law, an open and obvious defense was enough to grant a full defense," said Courtade.

"If it was a strict negligence claim, the case would have been dismissed."

Courtade said the appellate court's opinion was unpublished and doesn't carry the full weight of a legal precedent, instead serving more as an advisory ruling.

But one of the justices that ruled in favor of the plaintiff was the court's chief judge.

"Though the ruling isn't absolutely binding on other parties, it does indicate the current thinking of at least these panelists," said Courtade of the higher court.

"Even though other courts are not bound by the decision, others do give deference to a well-written, unpublished opinion." 

Recent Articles by David Czurak

Editor's Picks

Comments powered by Disqus