Funk v. General Motors Corp.

220 N.W.2d 641, 392 Mich. 91, 1974 Mich. LEXIS 171

• Court: Michigan Supreme Court
• Decided: August 2, 1974
• Docket: 10 March Term 1973, Docket No. 53,928
• Status: Published

Opinions

Levin, J.

Ellis Funk, a journeyman plumber, was seriously injured on a plant construction job. He recovered workmen’s compensation benefits from his employer, Ben Agree Company, a plumbing subcontractor.

In this action, a jury returned a verdict for Funk against the general contractor, Darin & Armstrong, and the owner of the plant, General Motors Corporation, whom Funk contends are liable as third-party tortfeasors for his injuries.

The Court of Appeals granted the defendants a judgment notwithstanding the verdict holding that Funk had himself created the dangerous condition which was the immediate cause of his injury. Funk v General Motors Corp, 37 Mich App 482; 194 NW2d 916 (1972).

Funk had hung six-inch piping from steel beams of the superstructure of a clear-span addition to a General Motors plant. He was then ordered to move approximately 600 feet of the piping.

To move the piping, Funk climbed onto the beams just as he had when they were initially hung. From this position he hammered the hooks holding the piping. Because of roof slabs, which by then had been added, he was unable to reach some of the hooks and went onto the roof. He removed some slabs and was injured when he lost his balance and fell more than 30 feet to the ground.

The immediate cause of the accident was the manner in which Funk chose to complete the assigned task. By removing the roof slabs, he opened a hole in the roof and then slipped and fell through the opening. This case, says General Motors, "is a classic example of the man who, in a sense, dug a hole and regrettably fell into it”.

Funk charges negligence in the defendants’ failure to implement reasonable safety precautions for men working over 30 feet above the ground. He contends that General Motors and Darin & Armstrong exposed him to avoidable injury by allowing subcontractors to order the men to work at dangerous heights without any protection from falls in a job environment in which laborers were expected to complete their assigned tasks without regard to the absence of safety equipment guarding against injury in the event of a mishap.

The defendants counter that owners and general contractors are not subject to liability for the negligence of an independent contractor (Funk’s employer, Ben Agree), and since Funk fell from the roof — rather than from the beams — the absence of safety equipment at the beams was not the cause in fact of his injury.

We conclude that while ordinarily the owner of a building under construction is not responsible to construction workers for job safety, in this case General Motors could properly be found to have sufficiently exercised a retained control subjecting it to liability for the failure to implement reasonable safety precautions.

The scope of a general contractor’s responsibility will often depend on the nature of the risk and of the precaution or safeguard claimed to have been omitted. In this case it was proper to find Darin & Armstrong responsible for the safety omissions which gave rise to Funk’s injury.

We reverse the Court of Appeals and affirm the verdict against Darin & Armstrong, but, because of instructional error, remand for a new trial as to General Motors.

I

Ordinarily a landowner is not responsible for injuries caused by a carefully selected contractor to whom he has delegated the task of erecting a structure. Most every rule has its exceptions. This rule is distinguished by the variety of its exceptions.¹

An owner is responsible if he does not truly delegate — if he retains "control” of the work — or if, by rule of law or statute, the duty to guard against the risk is made "nondelegable”.

Inevitably it becomes a matter of judgment, case by case, where to draw the line between so-called "delegable” and "nondelegable” tasks and duties. In a given case, the policy question facing a court (the law of torts is largely judge-made) is whether on the facts presented the public interest warrants imposition upon a person who has delegated a task the duty to guard against risks implicit in the performance of the task.²

The immediate employer of a construction worker (Ben Agree, in this instance) is immediately responsible for job safety.³

The question now presented is whether, in the circumstances of this case, the immediate employer having conspicuously failed to provide any safety equipment, this general contractor and this owner, fully knowledgeable of the employer’s dereliction, had the responsibility either to require the employer to implement a meaningful safety program or to themselves supply the obviously necessary safety equipment.

II

Mishaps and falls are likely occurrences in the course of a construction project. To completely avoid their occurrence is an almost impossible task. However, relatively safe working conditions may still be provided by implementing reasonable safety measures to prevent mishaps from causing aggravated injuries such as those suffered by Funk. Funk’s injuries probably would have been kept to a minimum or avoided altogether if there had been provided either suspending nets, scaffolding, bucket cranes, safety belts or harnesses.

The plumbing subcontractor’s failure to provide safety equipment for the men working along the steel did not represent just an occasional lapse. The steel frame was a common work area of many trades. Iron workers who "walked [the] beams”, and pipe fitters and electricians, although "they were able to gain handholds”, were exposed to similar risks. Throughout the especially precarious winter months, when snow and ice made conditions even more hazardous, and subsequently, closer in time to Funk’s injury, it was obvious to even the most casual observer that the men in the steel were without safety harnesses or belts and there was no safety net under the men.⁴

Arthur Collins, pursuant to his duties as architect-engineer superintendent for General Motors’ Argonault Realty Division, was constantly on the construction site and observed numerous tradesmen working on the beams with "no nets or safety lines”.⁵ Similarly, John McCarty, Darin & Armstrong’s project superintendent, during his repeated "tours throughout the day” of the job site, frequently observed men working in the beams, but never saw any "safety belts or safety nets”.

The policy behind the law of torts is more than compensation of victims. It seeks also to encourage implementation of reasonable safeguards against risks of injury.

Placing ultimate responsibility on the general contractor for job safety in common work areas will, from a practical, economic standpoint, render it more likely that the various subcontractors being supervised by the general contractor will implement or that the general contractor will himself implement the necessary precautions and provide the necessary safety equipment in those areas.

"[A]s a practical matter in many cases only the general contractor is in a position to coordinate work or provide expensive safety features that protect employees of many or all of the subcontractors. * * * [I]t must be recognized that even if subcontractors and supervisory employees are aware of safety violations they often are unable to rectify the situation themselves and are in too poor an economic position to compel their superiors to do so.” Alber v Owens, 66 Cal 2d 790; 59 Cal Rptr 117, 121-122; 427 P2d 781 (1967).

We regard it to be part of the business of a general contractor to assure that reasonable steps within its supervisory and coordinating authority are taken to guard against readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen.

This analysis would not ordinarily render a "mere” owner liable.⁶ In contrast with a general contractor, the owner typically is not a professional builder. Most owners visit the construction site only casually and are not knowledgeable concerning safety measures. See, e.g., Gonzales v Robert J. Hiller Construction Co, 179 Cal App 2d 522; 3 Cal Rptr 832, 835 (1960), where the owner was held not liable for the negligence of his contractor. He had been around the construction site daily to watch its progress and was as familiar with construction work as "any layman is who has seen a number of them built, and who has invested in them.” Supervising job safety, providing safeguards, is not part of the business of the typical owner.

Ill

Although the contract designated General Motors as owner and Darin & Armstrong as general contractor, the actual working relationship evidenced exercise by General Motors of a retained control of the project. See Bissell v Ford, 176 Mich 64; 141 NW 860 (1913). The jury could properly hold General Motors liable for the failure to observe safety precautions and provide safeguards.

General Motors exercised an unusually high degree of control over the construction project from its very inception. Its internal divisions drew up the building plans, wrote the contractual specifications, and acted as architectural supervisor. It directly hired several of the contractors, including Ben Agree, wrote the contracts agreed to by those contractors, and only later assigned the contracts to Darin & Armstrong.

Arthur Collins, General Motors’ representative, testified that he could order Darin & Armstrong to terminate any prime or subcontractor within 24 hours. General Motors also retained the right to continue hiring additional subcontractors and then, if desired, assign their contracts to Darin & Armstrong for coordination with the other contractors.⁷

Collins — daily at the job site — interpreted the contract specifications and plans for Darin & Armstrong. Aided by other General Motors on-the-spot inspectors, he ensured that the "general conditions” and other provisions of the contract were being fulfilled. These included safety requirements, quality and performance of the work, fire protection, price restraints and completion deadlines.

General Motors relies on cases which state that an owner who engages a general contractor for a construction project does not, by retaining a right of inspection, assume a duty to inspect the work practices and equipment of the various subcontractors.⁸ The law does not, however, absolve an owner who acts in a superintending capacity and has knowledge⁹ of high degrees of risk faced by construction workers from responsibility for failing to require observance of reasonable safety precautions.

Collins’ general concern for adherence to contractual requirements was relaxed when it came to observation of safety requirements. He maintained that it was not General Motors’ "prerogative to direct safety on the job”; it "was the general contractor’s duty”. However, he did report "anything obviously wrong that was dangerous” to John McCarty, Darin & Armstrong’s supervisor, and expected him to correct it. The activities of Collins and his assistants prompted McCarty to defer to some extent to Collins in the area of safety, just as he deferred to Collins in other areas.

Collins’ supervision over some aspects of accident prevention, coupled with his extensive supervision of other specifications, and General Motors’ overall, day-to-day, dominance of the project, supports a finding of, if not actual, at least tacit control by General Motors of safety in the highly visible common work areas.¹⁰

Job safety, like most everything else, costs money. General Motors’ acquiescence in Darin & Armstrong’s failure itself to provide or to require the subcontractors to provide safety devices represented a saving in expenditures.

Collins and his assistants did more than observe whether the contract was being properly performed. In many instances, what they said, or left unsaid, determined how the work would be performed. In the area of job safety their knowing acquiescence in nonperformance encouraged, if not legitimized, the derelictions of the sub- and general contractors.¹¹ Having assumed a dominant role in this construction job, General Motors can properly be held responsible for the failure to implement adequate safety precautions.

In response to the questions posed by General Motors, we answer "no”; liability is not "to be imposed upon every property owner who enters into a construction contract”. Nor is liability imposed on General Motors "merely because [it] is a large corporation, rather than an individual, or perhaps a partnership”.

General Motors is subject to liability because a jury could properly conclude that General Motors, despite its designation as owner, retained and exercised sufficient control so that it ought to be held responsible for its own negligence in failing to implement reasonable safety precautions by the general contractor and subcontractor. See Quinones v Upper Moreland Twp, 293 F2d 237 (CA 3, 1961).¹²

IV

The trial judge generally explained to the jury the responsibility of a general contractor to guard against obvious, avoidable risks. She instructed that Darin & Armstrong owed a duty "to provide proper supervision and inspection as was necessary” and "to stop work or order changes if it saw through its agents or employees an obvious dereliction of duty by Ben Agree Company”. She defined "obvious” as "open to view”, "dereliction” as "culpable neglect”, and "culpable” as "deserving of blame or censure”.

The judge instructed the jury that General Motors would be liable if the work assigned Funk was "inherently, or intrinsically dangerous”. She defined "inherently” as "belonging to the very nature of the thing”, "intrinsically” as "arising from the true or fundamental nature of a thing”.

The risks inherent in large-scale construction work justify imposing responsibility on a responsible person to take appropriate precautions. However, as the authorities cited by the parties illustrate, it is difficult to generalize as to which party or entity should bear this responsibility.

In some instances, as to some risks, it will appear unwarranted to impose the responsibility on anyone other than the immediate employer of the workman, whether he be a subcontractor or general contractor. In other circumstances, as here, it will appear, by reason of additional factors, that responsibility should be imposed on the general contractor. In still others, nothing short of imposition of complete enterprise responsibility on the owner will be consistent with the developing policies of the law of torts.¹³

This was not an unusual construction job. The risk — slip and fall — was not unique. Reasonable safeguards against injury could readily have been provided by taking well-recognized safety measures. The owner appears to have selected a responsible, experienced contractor.¹⁴ We are not persuaded that the imposition of enterprise responsibility on this owner, qua owner, is justified and, therefore, order a new trial as to General Motors because, although the jury could have properly returned a verdict against General Motors on the basis of its exercise of retained control, the jury may have found against General Motors as owner on the alternative theory of liability which should not have been submitted.

V

General Motors asserts that "the whole purpose” of Funk’s and similarly injured workmen’s "lawsuits is to circumvent the workmen’s compensation laws.”

Funk stresses, in contrast, that because of the statutory exculpation from tort liability of the immediate employer under the workmen’s compensation law, unless the owner is responsible, without regard to whether he exercises a retained control of the work, a workman may not have a source of recovery under the law of torts. Imposing tort liability on owners might prompt them to require greater care on the part of a general contractor or immediate employer of a workman.

In 1952, the Workmen’s Compensation Act was amended to provide that the acceptance of compensation benefits shall not act as an election of remedies¹⁵ and "the liability of [a] third party” tortfeasor might be enforced. It is further provided that "[i]n an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort”.¹⁶

This legislative reference to the law of torts, providing in effect that if a workman has an alternative source of recovery under the law of torts he may maintain an action, is bound to produce erratic results. Some workmen will have an alternative source of recovery, while others will not.¹⁷

An unstated premise of the legislative reference to the law of torts is that the development of that body of law will neither be stimulated nor impeded because the result would create or deny a workman a source of recovery alternative to workmen’s compensation.

The question whether there is, under the law of torts, an alternative source of recovery to workmen’s compensation is to be decided without regard to whether other workmen "similarly situated” have such a source or whether a decision adverse to liability may deny any alternative source of recovery to a particular workman.

We are satisfied, however, for reasons already stated, that on the facts of this case it is an appropriate development of the law of torts to impose responsibility on a general contractor for failure to implement safety measures in common work areas guarding against readily observable, avoidable serious risks of personal injury. The basis of General Motors’ liability, exercise of retained control, has long been established.

VI

The defendants contend that Funk’s "negligence” in leaving the steel beams and going to the roof to complete his task absolves them as a matter of law of any responsibility for his injury.

A jury could properly conclude that a cause of Funk’s injury was the job environment created by the defendants which had conditioned him to work without regard to the conspicuous absence of safety equipment. The Ben Agree foreman had instructed, "If you don’t want to work up in the steel, go home”. Funk, a house plumber, had not previously worked on a construction project of this magnitude. He was given no safety indoctrination.

The question of contributory negligence is generally one of fact, not of law. There was adequate evidence from which the jury could conclude that Funk did not act unreasonably in the circumstances by going upon and opening a hole in the roof.

Normally, our review of the contributory negligence defense would now cease. However, since a new trial of the claim against General Motors has been ordered, we have considered whether the defense of contributory negligence bars recovery where the trier of fact may reasonably find that the failure to provide necessary safety equipment was the cause in fact of the injury.

Courts have found the defense of ordinary¹⁸ contributory negligence inapposite to a claim predicated on a breach of a legislatively-imposed safety regulation:

"Workmen such as the present plaintiff, who ply their livelihoods on ladders and scaffolds, are scarcely in a position to protect themselves from accident. They usually have no choice but to work with the equipment at hand, though danger looms large. The legislature recognized this and, to guard against the known hazards of the occupation, required the employer to safeguard the workers from injury caused by faulty or inadequate equipment. If the employer could avoid this duty by pointing to the concurrent negligence of the injured worker in using the equipment, the beneficial purpose of the statute might well be frustrated and nullified.” Koenig v Patrick Construction Corp, 298 NY 313, 318-319; 83 NE2d 133, 135 (1948).¹⁹

We discern no reason why the same principle should not govern if the trier of fact finds that the employer-defendant’s breach of a common-law duty to provide safety equipment is the cause in fact of plaintiff’s injury. In Soronen v Olde Milford Inn, Inc, 46 NJ 582, 592; 218 A2d 630, 636 (1966), the New Jersey Supreme Court ruled that the defense of contributory negligence may not be asserted in a common-law action against a tavern keeper who, in violation of a regulation of the Division of Alcoholic Beverage Control, negligently sells alcoholic beverages to a visibly intoxicated person and proximately causes or contributes to his resulting injury:

"The accountability [of the tavern owner] may not be diluted by the fault of the patron for that would tend to nullify the very aid being afforded. Since the patron has become a danger to himself and is in no position to exercise self-protective care, it is right and proper that the law view the responsibility as that of the tavern keeper alone.” (Emphasis supplied.)

VII

The defendants also contend that the testimony of Robert Jenkins, Funk’s expert witness, should not have been admitted because he was not qualified to testify regarding construction practices in Michigan.

Despite his relative unfamiliarity with Michigan construction projects, Jenkins had considerable national experience with large-scale construction. His other credentials were extensive. It was not an abuse of discretion to allow him to testify.²⁰

The defendants also contend that because Funk was injured while working on the roof after leaving the steel, Jenkins’ testimony regarding the dangers inherent in working on steel beams without safety equipment was irrelevant and immaterial.

This argument erroneously focuses on the cause of Funk’s mishap. Jenkins described the developing science of safety engineering and how other general contracting entities, by relying on the science’s advancements, had achieved significant reductions in construction injuries. His testimony assisted the jury in establishing a standard of conduct against which they could contrast the efforts of the defendants. The typical juror is little informed, if even aware, of the scientific basis of safety engineering and the progress of the science.

Jenkins’ testimony tended to show the failure of the general contractor to take reasonable precautions to alleviate readily observable, avoidable, dangerous situations in common work areas. Merely because Funk’s accident occurred on the roof, and not the beams, does not make Jenkins’ testimony any less admissible.

On the same analysis, even though Funk fell from the roof, and not the beams, the jury could properly conclude that the failure to provide any safety equipment anytime anywhere for men working over 30 feet above the ground was the cause in fact of Funk’s injury.

The judgment of the trial court is affirmed as to Darin & Armstrong with costs to Funk; and reversed as to General Motors and remanded for a new trial with costs to abide the event.

T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, and Williams, JJ., concurred with Levin, J.

1 "Indeed it would be proper to say that the rule is now primarily important as a preamble to the catalog of its exceptions.” Pacific Fire Insurance Co v Kenny Boiler & Manufacturing Co, 201 Minn 500, 503; 277 NW 226, 228 (1937).

2 "The real question in all independent contractor cases is whether a man may 'farm out’ or Top off some of his affairs and escape liabilities in connection with them. No general policy forbids this. 'There seems to be no compelling reason * * * why a lawyer should have to repair his own shoes, or fill his own teeth,’ or incur liability to outsiders for harm caused by the cobbler or the dentist in doing these things for him.” 2 Harper & James, The Law of Torts, § 26.11, p 1400.

3 The Construction Safety Act of 1963, MCLA 408.711, et seq.; MSA 17.469(1), et seq., authorizes the State Construction Safety Commission to "promulgate safety rules and regulations for the inspection and use of equipment and for safe working conditions, based upon generally accepted nationwide engineering standards and practices” for the "construction industry”, defined as "construction firms, employers and contractors” with qualifications set forth in the act. The word "employers” was added by amendment. 1970 PA 156. Rules have been promulgated. See, e.g., Administrative Code 1964-1965 AACS, R 408.1101, etseq., pp 3289-3331.

Neither the judge’s instructions nor the issues briefed and argued by counsel justify an expression by this Court concerning the scope of coverage under the act.

4 The continual nature of the danger created by the absence of any safety equipment distinguishes this case from several cited by General Motors and Darin & Armstrong in which the defect which caused plaintiffs injury was not previously apparent. See Wilson v Portland General Electric, 252 Or 385; 448 P2d 562 (1968); Epperly v Seattle, 65 Wash 2d 777; 399 P2d 591 (1965); Hurst v Gulf Oil Corp, 251 F2d 836 (CA 5, 1958).

5 Collins, in response to a question whether he was concerned about the men suffering serious injury because of the absence of safety equipment, answered: "I never gave that a thought. I would assume that if a man fell he wouldn’t be working in the steel.”

6 Nor would this analysis be applicable where the employee of a subcontractor seeks to recover from another subcontractor. See Klovski v Martin Fireproofing Corp, 363 Mich 1; 108 NW2d 887 (1961).

7 See Lee v Junkans, 18 Wis 2d 56, 60-61; 117 NW2d 614, 617 (1962), where the Supreme Court of Wisconsin sustained a jury’s finding that an owner who had employed a contractor to construct a dwelling had nonetheless retained control and was subject to liability to an injured workman. The owner “personally worked on the job and also purchased some of the materials necessary for the job,” and himself "engaged such other tradesmen as the excavators, plumbers, and electricians”.

8 See Gowdy v United States, 412 F2d 525, 529 (CA 6, 1969), cert den 396 US 960; 90 S Ct 437; 24 L Ed 2d 425 (1969); Lipka v United States, 249 F Supp 213 (ND NY, 1965), aff’d 369 F2d 288 (CA 2, 1966) (discussed in fn 11, infra).

9 Neither General Motors nor Darin & Armstrong may properly complain that they did not have "actual or constructive notice of the defect”. See Sposito v Zeitz, 23 Wis 2d 159; 127 NW2d 43, 45 (1964). In Summers v Crown Construction Co, 453 F2d 998, 999 (CA 4, 1972), the Court affirmed a jury verdict against a general contractor in favor of an employee of a subcontractor. The general contractor’s superintendent was aware of a defect in the subcontractor’s crane which caused the employee’s injury, but did nothing to have it repaired or replaced: "We affirm because the accident resulted in part from the failure of the general contractor to exercise the broad control it had retained over safety practices on the job”. Contrast Munson v Vane-Stecker Co, 347 Mich 377; 79 NW2d 855 (1956), Garczynski v Darin & Armstrong, 420 F2d 941 (CA 6, 1970), and Peter v Public Constructors, Inc, 368 F2d 111 (CA 3, 1966), where the evidence did not tend to show any knowledge on the part of the general contractor of a defect or of failure to observe safety precautions.

10 We agree, paraphrasing Eutsler v United States, 376 F2d 634, 636 (CA 10, 1967), that neither an owner nor a contractor is necessarily in violation of a legal duty because it has undertaken to impose certain safety precautions in some areas and has failed to impose similar precautions in all areas.

General Motors’ selective enforcement of obvious safety derelictions does not by itself impose on it the duty to enforce all safety requirements. It does, however, represent an indicia of retained and exercised control. The pervasiveness of the control by General Motors represented more than just an "isolated occurrence”. Lipka v United States, supra, p 216, where the trial judge sat as trier of fact and his findings of nonexercise of control and of no liability on the part of the government were sustained on appeal. See, also, Sword v Gulf Oil Corp, 251 F2d 829 (CA 5, 1958), where the evidence did not establish that the owner’s representative gave any directions concerning safety practices.

11 Compare Broderick v Cauldwell-Wingate Co, 301 NY 182, 186; 93 NE2d 629 (1950), where the general superintendent of the general contractor, when asked about safety precautions, told a subcontractor’s emoloyee, "There are no shores going in there. Go ahead. It is all right.” and Trecartin v Mahony-Troast Construction Co, 18 NJ Super 380; 87 A2d 349 (1952), where the general contractor’s project manager specifically instructed a subcontractor to disregard safety requirements.

12 In the cited case the owner was held liable. Its engineer’s inspector visited the job two or three times a week, knew that the trench which gave way was not shored as required by Pennsylvania law and never gave instructions that shoring was to be installed. The Court found the evidence sufficient to support findings of retention of control by the owner concerning the performance of the contract and that the owner was negligent in not having required the contractor to shore the trench in conformity with the requirements of law.

13 Compare Widman v Rossmoor Sanitation, Inc, 19 Cal App 3d 734; 97 Cal Rptr 52 (1971), and Stilsoh v Moulton-Niguel Water District, 21 Cal App 3d 928; 98 Cal Rptr 914 (1971), with Celender v Allegheny County Sanitary Authority, 208 Pa Super 390; 222 A2d 461 (1966); Chaney v New York City Transit Authority, 12 App Div 2d 61; 208 NYS2d 205 (1960); Garczynski v Darin & Armstrong, supra; Lenderink v Village of Rockford, 135 Mich 531; 98 NW 4 (1904).

14 We recognize that some general contractors may not be financially responsible and that their financial difficulties may render them less likely to observe safety precautions. This relates to the question whether the owner was negligent in selecting the contractor, not the broader question of whether owners generally are relieved of tort responsibility for tasks delegated to a carefully selected contractor.

We also recognize that a contractor, in seeking the award of a project, may be impelled by competition to submit a bid which inadequately provides for necessary safety equipment. Cf. Lake Superior Iron Co v Erickson, 39 Mich 492, 502 (1878). The facts of this case do not require an expression from this Court whether an owner should be subject to liability for the "negligence of his contractor” where the deficiency in cost allocation for safety equipment is or ought to be apparent and the owner, nevertheless, knowingly accepts the bid.

15 Until 1952, where the injury "was caused under circumstances creating liability in some person other than the employer to pay damages”, an employee had an option of proceeding at law against the third party or against the employer for compensation under the act "but not against both.” 1948 CL 413.15.

16 1952 PA 155, amending 1948 CL 413.15, presently MCLA 418.827; MSA 17.237(827).

17 If General Motors had, for example, itself built the addition to the plant and had directly employed Funk, workmen’s compensation would clearly have been Funk’s exclusive remedy.

18 If a plaintiffs malfeasance constitutes "gross negligence” amounting to recklessness different principles apply. See Bowman v Redding & Co, 145 US App DC 294; 449 F2d 956 (1971).

19 See, also, Osborne v Salvation Army, 107 F2d 929 (CA 2, 1939), and Bowman v Redding & Co, supra.

20 The defendants also assert that reversible error was committed by permitting Jenkins to testify "in reverse order”, and before a factual foundation had been laid upon which he could base his testimony. The substance of this objection is that Funk’s "backwards” presentation facilitated the admission of irrelevant and immaterial testimony. Our conclusion that the objected-to testimony was properly admitted moots this objection.