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Jesko v. Consumers Energy Co.7/21/2005
UNPUBLISHED
Before: Saad, P.J., and Smolenski and Cooper, JJ.
Plaintiff appeals the trial court's order that granted summary disposition in favor of defendants Peckham, Guyton, Albers & Viets, Inc. (PGAV), and Consumers Energy Company ("Consumers"), and we affirm.
I. Nature Of The Case
Plaintiff worked for a subcontractor of Kent Companies, Inc. ("the contractor"), which was the general contractor for a city construction project. Prior to construction, Consumers had relocated an overhead electrical wire so that it would run approximately ten feet from what was to be the western wall of the building, and the wire ran thirty-five feet above the ground. Approximately one week before the incident in issue, the contractor erected a scaffold on the western wall of the building. This scaffold extended to within approximately eight feet from the overhead wires. On the date of the incident, plaintiff was using a "bull float" to spread and smooth concrete that had been poured to create a concrete deck. Though plaintiff had no reason to do so, and though no other workers were working on that side of the building, plaintiff decided to bull float on the western side of the building.
Despite testifying that he was aware of the overhead lines, and that he felt that the accident was his fault, plaintiff nevertheless filed the instant negligence suit against defendants, seeking compensation for his injuries. In response, defendants say that plaintiff and his employer bore the primary responsibility for ensuring plaintiff's safety in the workplace, and that neither had any duty to warn plaintiff because it was not reasonably foreseeable that plaintiff, or anyone else, would be working in close proximity to power lines and in violation of state workplace safety regulations.
II. Factual Background
Plaintiff's accident occurred on January 7, 2000, at the construction site of the Grand Rapids Community Archives and Research Center. PGAV performed the architectural design for the building and, under contract, PGAV was responsible for design, construction administration, and inspection to assure that construction matched the architectural plans. Under the contract, general workplace safety was not the responsibility of PGAV, but was expressly the responsibility of the general contractor, Kent Companies, Inc.
Before construction of the building, the utility company, Consumers Energy, relocated a utility pole that was close to the construction site. After it was moved, the pole stood approximately thirty-five feet above ground and ten feet, 1-3/4 inches away from what would become the west wall of the building. About a week before the accident, the general contractor erected a scaffold, the closest edge of which was approximately eight feet, one inch from the wire.
On the day of the accident, plaintiff was smoothing concrete for the roof of the three-story building. He used a bull float, which consists of a large flat rectangular piece of wood attached to a handle made of sections that vary the total length of the instrument. The handle plaintiff used was metal and could be extended to eighteen feet long. To properly smooth concrete, a bull floater must be mindful of his surroundings because contacting the handle with any other object can upset the finish of the concrete.
Plaintiff testified, somewhat inconsistently, about all aspects of the incident. For example, plaintiff testified that he did not remember observing the wires, but that he did think that he needed to avoid them. Again, plaintiff said that he thought the lowest wire was a telephone wire, but that it might have been electric. Plaintiff
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