In 1972, an ironworker named Michael McDonough was killed in a workplace catastrophe in Flint, resulting in a lawsuit. In the McDonough case, the Michigan Supreme Court recognized that construction workers, and those employed in other high hazard occupations, have the right to sue for damages, if the project owner, general contractor, or any other corporation hires a subcontractor to perform “inherently dangerous work,” and the subcontractor’s negligence seriously, or fatally, injures one of its employees.

The concept of “inherently dangerous work” means that anyone who is employed by an outside contractor to perform work, which requires that special precautions be taken, in advance of the commencement of the work, for the safe conduct of the work, because of the unusually dangerous character of the work, can be held legally liable, if those precautions are not taken.

This was an important rule of law, because the purpose of this rule was to exact an extra measure of care out of the corporation hiring the sub. And, the rule was especially important to ironworkers, roofers, and laborers, because these are the three most dangerous crafts in all of the building trades. The construction industry has one of the highest injury frequency, severity, and fatality rates in the country.

In 1974, the Michigan Supreme Court in the Funk case used the occasion to give additional protection to construction workers. The court held that an owner, actively engaged in the work, and who retained control over the performance of the work, was legally responsible for worker safety, if it was negligent in exercising that control.

The court in the Funk case also said general contractors can be sued, if: they have supervisory and coordinating authority over the project; the employees of the subs are exposed to serious danger, and they are obviously working without the proper safety equipment.

Last July, the most pro-business, anti-worker Supreme Court in the history of Michigan, finally turned its attention to these rules, which had safeguarded construction workers, and their families, for more than 30 years.

First, in Fultz, the Supreme Court held that a company which farms out work to an outside contractor, cannot be sued for its negligence in the performance of its contract, unless that company also owes some legal duty separate and apart from the contractual requirements. Mere negligence in the performance of the contract – such as the failure to carry out the safety provisions in the contract – is not enough to win.

Second, in Deshambo, the Court abolished the application of the “inherently dangerous work” doctrine to workplace injuries and deaths. The hard-core Republican majority of the Court decided that applying the “inherently dangerous” rule to workplace injuries and deaths was an “unwarranted” extension of the law.

Third, in Ormsby, the Supreme Court dissected Funk into a rigid four-part test. In order to sue, the injured worker must prove: “(1) that the general 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 workmen (4) in a common work area.” The Supreme Court has never said how many workers must be exposed to the danger to constitute “a significant number,” and the court has never authoritatively defined the phrase “common work area.”

What the state high court did say in Ormsby was that the failure to prove any one of these four parts was fatal. Additionally, the court held that an owner cannot be sued, unless it acted as its own general contractor, and also if it passes this four-part test.

Finally, the Supreme Court held that no other contractor, such as a prime, can ever be sued for its negligence under Ormsby. The Court left unsaid whether Ormsby is now the only rule governing construction site injury occurrences.

These three “killer” opinions from the Court have a direct, and brutal, impact on the building trades. In almost every case, an injured residential construction worker will have no legal rights beyond workers’ compensation, even if the construction is of an entire subdivision.

Next, construction workers employed in the construction of “big box” buildings, or any other project where the general contractor phases in the work, such that only one or two crafts are on-site, at one time, are now relegated to the same “second-class” citizenship.

Workers engaged in highway construction are in the same boat. Only craft employees working on major multi-million dollar, multi-employer projects, and who are working on top of each other, will even have the chance to protect themselves, their loved ones, and their families.

How did we get in this position? The answer: all too frequently, people don’t vote. And, the people who do vote, don’t vote the non-partisan section of the ballot. If you don’t vote the non-partisan section of the ballot, you have no voice regarding who sits on the Supreme Court, or any court.

On Election Day, Nov. 2, you will have the opportunity to vote for Marilyn Kelly for re-election; and, against Stephen Markman for re-election. Don’t miss this opportunity to stand up for your rights. Vote, and vote the non-partisan section of your ballot, for judges who are on the side of working people, and not big business. Believe me, your bosses know how their votes will be cast.

* Richard L. Steinberg is a Detroit lawyer, who has spent more than 30 years representing injured construction workers and their families. He is an author, lecturer, and frequent consultant to other lawyers, on the subject of construction injuries. He is a member of Teamsters Local No. 20 (On Honorable Withdrawal); CAM, MTLA, the NAACP, and a voting member of the ASTM F-13 Committee on Pedestrian and Walkway Safety and Footwear. He represented the International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, as amicus curiae, in the case of Ormsby v. Capital Welding, Inc. He is licensed to practice law in both Michigan and Ohio.