Michigan Democratic Party Chair Mark Brewer
Michigan Democratic Party Chair Mark Brewer is getting a jump start on the silly season
Brewer jabbed at Michigan Supreme Court Justice Robert P. Young Jr. in a press release issued yesterday. Young, who is running for re-election to the MSC this fall, doesn’t care about the average working Joe or Josephine, says Brewer.
Young, along with a majority of the justices, reversed the Michigan Court of Appeals in Alderman v. J.C. Development Communities, a construction-accident case in which Randy Alderman, a subcontractor’s employee, was badly burned when a crane hit a power line.
Michigan Supreme Court Justice Robert P. Young Jr.
At issue was whether the general contractor was liable to Alderman under the common-work-area doctrine. Under Ormsby v. Capital Welding, Inc.
, 471 Mich. 45 (2004), the doctrine requires proof of four elements:
- (1) that the defendant contractor failed to take reasonable steps within its supervisory and coordinating authority;
- (2) to guard against readily observable and avoidable dangers;
- (3) that created a high degree of risk to a significant number of workers; and
- (4) in a common work area.
Judge Edward Sosnick of the Oakland County Circuit Court said Alderman hadn’t made his case, reasoning that Alderman and the other five members of his crew were the only ones in the area. According to Sosnick:
At most, six employees of one subcontractor were exposed to the risk of electrocution. This is not sufficient to establish a common work area.
The COA panel, Judges Donald S. Owens, Deborah A. Servitto and Elizabeth L. Gleicher, disagreed.
Plaintiff presented evidence that this construction project was rather large and that his employer was not the only subcontractor working in the vicinity of the power lines on the date of this accident. …
Plaintiff’s crew may have been the only subcontractors working on lot 273 when the accident occurred, but the power lines did not merely run along the one lot. They ran along several lots under active construction, and electricity is commonly understood to be hazardous.
The crane could easily have torn down the power lines, creating a hazard to anyone within striking distance of the fallen lines, or could have caused a fire. The risk of harm associated with a crane hitting the power lines is high and is not as narrow as defendant would suggest.
The risk at issue is the potential harm to be had if the crane hit the power lines — not merely the harm to be had if the crane made contact with the power lines and someone was involved in the electrical circuit between the power lines the crane.
In an order issued last week, Young and four other justices reversed, using language that generally tracked Sosnick’s when he initially dismissed the case:
The risk of injury at issue here was the risk of electrocution from a subcontractor’s crane coming into contact with power lines above the construction site.
The only employees exposed to the risk of electrocution were two to six employees of one subcontractor, including the plaintiff, and therefore there was not a high degree of risk to a significant number of workers.
Brewer, on the Democratic Party’s website, was quick to pounce, painting Young as a friend of insurance and business interests and a working-class enemy:
On Law Day, which is intended to celebrate the benefits to all Americans of the American legal system, Michigan Supreme Court Justice Bob Young again denies those benefits to injured workers.
In an order released Friday, April 30th, Young and his colleagues denied relief to a construction worker, severely burned and nearly electrocuted on the job, because there was “not a high degree of risk to a significant number of workers.” …
“If six employees at risk of electrocution is ‘not a high degree of risk to a significant number of employees’ according to Young, how many workers doing what dangerous job is enough?” asked Michigan Democratic Party Chair Mark Brewer. …
“To Young, only insurance companies, corporations and their CEO’s, the people who fund his campaigns, are entitled to legal protection.”
But Brewer’s rhetoric proves a little too much.
Could you imagine Brewer leveling the same broadside against MSC Justice Michael F. Cavanagh, who has had the warm support of the Democratic Party in elections past? Not in this lifetime.
But Cavanagh joined Young, and Justices Elizabeth A. Weaver, Maura D. Corrigan and Stephen J. Markman in reversing the COA and reinstating Sosnick’s dismissal. Chief Justice Marilyn Kelly and Justice Diane M. Hathaway would have denied leave to appeal the COA’s decision.
That might make one think that Alderman is not about one justice looking for an opportunity to kick someone when they are down and, instead, is better understood as a principled disagreement about the scope of a legal doctrine that forecloses one avenue of relief.
The silly season of politics is upon us.