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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the June 2000 issue of the Journal

Question: A carpet company recently redid our office. During the removal of the old carpet, a worker was stuck in the finger with an endofile that was lodged in the carpet. The worker confronted me and expressed a concern that, at some later date, he would become infected with hepatitis or even HIV. Am I legally responsible as the owner of the office to pay for any hospital testing or treatment, or for any ultimate damages that could occur if the person is infected? Would the answer be different if the injury occurred to a person who was not installing carpet or a person who had no business in my office?

Answer: Under the Michigan Workers' Compensation Law an employee may recover compensation from his employer if an injury occurs in the scope of employment. This incident clearly arose out of the employment relationship and the carpet company employer, through its workers compensation carrier, would be responsible for such expenses and ultimately liable if an infection or other injury occurs. But this is not the end of the story.

There could be claim for common law negligence against you or your business entity as the owner or possessor of the premises. In this capacity, you have certain legal duties, depending on whether the injured person had the legal status of an invitee, licensee or trespasser. A person who enters the premises for a business purpose is an invitee. The carpet layer would be deemed to be a business visitor and fall within the classification of an invitee. The law in Michigan imposes a legal duty on you as the possessor of the premises to exercise ordinary care to protect an invitee from unreasonable risks of injury that were known to you or that should have been known to you in the exercise of ordinary care. There is a legal duty to warn an invitee which extends to dangers that are known or should have been known to you as the possessor of the premises, unless those dangers are open and obvious. Michigan law also imposes a duty on you to inspect the premises to discover possible dangerous conditions of which the possessor does not know, if a reasonable person would have inspected under the circumstances.

In the event the carpet layer files suit and establishes liability and damages under these rules on a common law negligence theory, the workers' compensation carrier would have a lien on any recovery and would be entitled to reimbursement for compensation paid.

A licensee is the person who, other than for a business purpose, enters the premises with the express or implied permission of the owner. This would include a social guest. With respect to a licensee, a possessor of the property would be liable for physical harm if the possessor knew or should have known of the condition and should have realized that it involved an unreasonable risk of harm to the licensee, and should have expected that the licensee would not discover or realize the danger. This liability is similar to the liability a possessor has to an invitee.

A trespasser is a person who enters the premises without an express or implied invitation, for his own purposes, and not in the performance of any duty to the owner. A trespasser need not have an unlawful intent. If the person was a trespasser, the possessor of the premises would have no liability if the possessor did not know, or in the exercise of ordinary care could not have known, of the presence of the trespasser. Under these circumstances, the possessor has no legal duty to either make the premises safe or warn the trespasser of conditions existing on the premises, and has no liability for injuries to the trespasser.

These rules regarding the liability of the owner of premises to invitees, licensees or trespassers set forth the applicable Michigan law. The judge instructs the jury on these legal rules and it is the jury's function to apply the facts and determine whether the injured person carried the burden of proof by a preponderance of the evidence that the possessor/owner failed to comply with these legal rules.

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