Construction site injuries; The common work area & retained control doctrines; Ormsby v Capital Welding, Inc; Hughes v PMG Bldg, Inc; The third element of the common work area doctrine; Alderman v JC Dev Cmtys, LLC; Denial of leave to amend the complaint to include a premises-liability claim

The court held that the trial court did not abuse its discretion in denying plaintiff leave to amend his complaint to add a premises-liability claim against defendants-construction site owners (the O’Learys). Further, he could not “establish the third element of the common work area doctrine” and as a result, the trial court did not err in granting the O’Learys and other defendants summary disposition. Plaintiff was seriously injured in a fall from a wooden platform while working on a construction project. The court first concluded as to the motion to amend the complaint that the trial court “recognized—correctly—that premises liability cannot be used as a means to unduly circumvent the common work area doctrine. Moreover, while plaintiff may not be categorically foreclosed from asserting a premises-liability claim, he still had to demonstrate that such a claim would be viable in this case.” The court found that he did not show the trial court erred in determining he failed to do so. Next, the court rejected his claim that there were genuine issues of fact “as to whether he satisfied the elements of the common work area and retained control doctrines.” He only challenged the trial court’s findings on “the third and fourth elements of the common work area doctrine. Under the third element, ‘liability should not be imputed unless the dangers in the work area involve a high degree of risk to a significant number of workers.’” The court noted it held in Hughes that this element was not satisfied where it was undisputed “‘plaintiff was one of only four men who would be working on top of the overhang.’” Here, only four people were “near or on the platform when it was being improperly used: plaintiff, [defendant-]Bueby, and two other independent contractors in Bueby’s employ. Therefore, at most, only four people were at risk of the danger in this case, and they were doing the same work for the same subcontractor. Thus, the risk was not posed to a significant number of workers.” The court noted that plaintiff did not offer any evidence that “roofers were near enough to the lift while it was being improperly used to actually be exposed to the danger at issue in this case.” In addition, his “failure to establish all the elements of the common work area doctrine necessarily means that the O’Learys cannot be held liable for his injuries regardless of whether they retained sufficient control over the project.” Affirmed.