
    BROWN v UNIT PRODUCTS CORPORATION (ON REMAND)
    Docket Nos. 68314, 68315.
    Submitted December 6, 1982, at Lansing-
    Decided February 9, 1983.
    Leave to appeal applied for.
    Carl L. Brown brought an action against Unit Products Corporation, as general contractor, for injuries he received while employed by subcontractor Broad Crane and Engineering Service Company. Unit Products, a wholly-owned subsidiary of H. F. Campbell Company, filed a third-party complaint against Broad Crane seeking contractual and common-law indemnification. H. F. Campbell was added as a codefendant, and plaintiff filed an amended complaint against both H. F. Campbell and Unit Products. H. F. Campbell filed a cross-claim against Unit Products for indemnification. Broad Crane moved for summary judgment against Unit Products, which motion was granted. Wayne Circuit Court, William J. Giovan, J. Following trial, the jury returned a special verdict for plaintiff and judgment was entered, James A. Hathaway, J. Unit Products appealed both judgments. The claims of appeal were consolidated by the Court of Appeals. The Court of Appeals held, inter alia, that the trial court did not err in refusing to allow the defense of comparative negligence to go to the jury where the plaintiff had alleged that the defendant breached its duty of care and caution while employing the plaintiff in an. inherently dangerous activity. 105 Mich App 141 (1981). Defendants Unit Products Corporation and H. F. Campbell Company sought leave to appeal to the Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case, 414 Mich 956 (1982), to this Court for reconsideration in light of the subsequent decision in Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29 (1982). Held:
    
    The comparative negligence doctrine applies where a worker alleges a breach of duty of care and caution while employing the worker in an inherently dangerous áctivity.
    Reversed and remanded.
    References for Points in Headnote
    53 Am Jur 2d, Master and Servant § 230.
    Modern development of comparative negligence doctrine having applicability to negligence actions generally. 78 ALR3d 339.
    
      N. J. Kaufman, J., concurred separately to state his agreement with the late Justice Blair Moody, Jr., in Hardy v Monsanto, supra, p 48.
    Negligence — Comparative Negligence — Inherently Dangerous Activity.
    The comparative negligence doctrine applies where a worker alleges a breach of duty of care and caution while employing the worker in an inherently dangerous activity.
    
      Joselyn, Rowe, Jamieson & Grinnan, P.C. (by James A. Callahan), for plaintiff.
    
      Hibbs & Lewis, P.C. (by Don Hibbs and Terry S. Welch), for defendants.
    
      Moore, Sills, Poling, Wooster & Sinn, P.C. (by James M. Prahler), for third-party defendant Broad Crane and Engineering Service Company.
    On Remand
    Before: Bronson, P.J., and M. F. Cavanagh and N. J. Kaufman, JJ.
   M. F. Cavanagh, J.

In the original appeal of this case we held, inter alia, that the trial court did not err in refusing to allow the defense of comparative negligence to go to the jury where the plaintiff had alleged that the defendant breached its duty of care and caution while employing the plaintiff in an inherently dangerous activity. Brown v Unit Products Corp, 105 Mich App 141, 153-154; 306 NW2d 425 (1981). Defendants Unit Products Corporation and H. F. Campbell Company sought leave to appeal to the Supreme Court. By order of that Court, their application for leave to appeal was held in abeyance pending the Court’s decision in Hardy v Monsanto EnviroChem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982). Now, in lieu of granting leave to appeal, the Supreme Court has remanded the case to this Court for reconsideration in light of the subsequent decision in Hardy, supra.

In our decision in Brown, supra, we concluded that the defense of comparative negligence would only be available if the defense of contributory negligence had been available, prior to the Supreme Court’s holding in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979). This ruling is no longer viable in light of the Supreme Court’s recent holding that the defense of comparative negligence is available as a defense in cases where the defense of contributory negligence was not formerly available. Hardy, supra, p 38.

In Hardy, the Supreme Court was faced with the issue of whether the defense of comparative negligence was available when a worker alleged negligence in the failure of his or her employer to provide adequate safety devices on the job. The Court concluded that the public policy of promoting safety in the workplace would be enhanced by the application of the principles of comparative negligence. 414 Mich 39. The Court based its conclusion upon two principal considerations: (1) if a worker is charged with some responsibility for his or her own safety-related behavior, it will give him or her a financial incentive to act in a reasonable and prudent fashion; and (2) application of comparative negligence will reward safety-conscious employers, who should not be held liable for damages in excess of the amount causally related to any negligence on their part. 414 Mich 41. The Court repeated its conclusion in Placek, supra:

" 'What pure comparative negligence does is hold a person fully responsible for his or her acts and to the full extent to which they cause injury. That is justice.’ 405 Mich 661.” 414 Mich 45.

To hold otherwise, the Court concluded in Hardy, would be clearly unjust.

We are persuaded that Hardy also suggests that the defense of comparative negligence should be available in situations involving inherently dangerous activities. Although the theory behind the inherently dangerous activity doctrine is similar to that of strict liability, the doctrine does not require the imposition of absolute liability. Vannoy v City of Warren, 15 Mich App 158, 163; 166 NW2d 486 (1968), lv den 382 Mich 768 (1969), remanded on other grounds 382 Mich 771 (1969). The fact that the employer in these circumstances may not delegate his or her duty of care and caution need not relieve the worker of the duty to take care in a prudent fashion in the light of known risks and dangers. Here, as in Hardy, the application of comparative negligence principles to workplace negligence situations encourages safer behavior by both employers and workers and results in a more equitable resolution of injuries and damages when concurrent negligence exists on the part of both the employer and the worker.

We thus hold that the trial court erred in refusing to allow the defense of comparative negligence to go to the jury. We reaffirm our holdings with respect to the other issues previously decided. The case is reversed and remanded to the trial court for proceedings consistent with this opinion.

Bronson, P.J., concurred.

N. J. Kaufman, J.

(concurring). I agree that Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982), requires us to reverse and remand this case. I concur separately, though, to express my agreement with the late Justice Blair Moody’s opinion in Hardy, 414 Mich 48 (Moody, J., dissenting in part).  