Robert F Deshambo v. Charles W Anderson

• Court: Michigan Supreme Court
• Decided: July 23, 2004
• Docket: 122939
• Status: Published

Opinion

Michigan Supreme Court Lansing, Michigan Chief Justice: Justices:

Opinion Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

FILED JULY 23, 2004

ROBERT F. DESHAMBO,

Plaintiff-Appellee,

and Nos. 122939-122940

JENNIFER M. GRANHOLM, Attorney General of the State of Michigan, and MICHIGAN DEPARTMENT OF COMMUNITY HEALTH,

Intervening Plaintiff-Appellee,

v

NORMAN R. NIELSEN and PAULINE NIELSEN,

Defendants-Appellants,

and

CHARLES W. ANDERSON,

Defendant. _______________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, C.J.

In this case, we consider whether the inherently

dangerous activity doctrine has been properly extended to

impose liability on landowners for injuries to employees of independent contractors performing dangerous work. We hold

that the Court of Appeals has improperly extended the

doctrine, contrary to its original purpose, to include

injuries to those involved in the performance of dangerous

work. The purpose of the doctrine is to protect innocent

third parties injured as a result of an inherently

dangerous undertaking. Because plaintiff was an employee

of an independent contractor rather than a third party, the

doctrine does not apply in this case. We thus reverse the

judgment of the Court of Appeals.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

Defendants Norman and Pauline Nielsen1 own and reside

on a 130-acre farm in Leelanau County, Michigan. The land

is used primarily to farm corn and operate a cherry

orchard. A neighbor manages the cherry tree operation, and

defendants are not involved in pruning or cutting the

trees. Defendants hired an independent contractor, Charles

Anderson, to fell and delimb small poplar trees and to

clean up the tops of trees that a previous logger had left

on the property. Anderson, an experienced timber cutter,

1 Plaintiff voluntarily dismissed his claims against defendant Charles W. Anderson. Because Anderson is not a party to this appeal, the term “defendants” refers only to the Nielsens.

had previously performed woodcutting for defendants. Under

the arrangement between defendants and Anderson, Anderson

would keep the tree tops for firewood and pay defendants

for the poplar that he cut. The parties did not discuss

how the felling and delimbing was to be performed.

Anderson hired plaintiff Robert DeShambo to help him

with the work on defendants’ property. On plaintiff’s

first day of work, he was delimbing trees when he heard

someone yelling. Plaintiff turned around and saw a tree

falling toward him as Anderson felled it. The tree hit

plaintiff on the shoulder and then struck some logs on the

ground, causing one log to spin, strike him in the back,

and pin him between the log and the fallen tree. The

incident has left plaintiff paralyzed.

Plaintiff filed a negligence action against defendants

and Anderson, but subsequently dismissed his claims against

Anderson.2 Plaintiff alleged, inter alia, that defendants

were liable for Anderson’s negligence because timber

cutting was an inherently dangerous activity. Defendants

moved for summary disposition, arguing that plaintiff could

not establish liability under any recognized exception to

2 The state of Michigan also intervened to recover funds paid through Medicaid for plaintiff’s medical treatment.

the general rule precluding the liability of a landowner

for injuries that an independent contractor negligently

causes.

The trial court granted summary disposition for

defendants, ruling that logging was not an inherently

dangerous activity and that defendants were not

sophisticated landowners knowledgeable of the risks

inherent in cutting timber. The Court of Appeals reversed,

concluding that a question of fact existed regarding

whether defendants reasonably anticipated the risks

inherent in logging.3 The Court reasoned that defendants

had previously hired logging companies to conduct tree

removals on their property and that defendant Norman

Nielsen had admitted that logging was risky. The Court

further stated that because plaintiff presented evidence of

the hazardous elements of logging, the determination

whether logging is inherently dangerous is a jury question.

We granted defendants’ application for leave to

appeal, directing the parties to address “whether the

‘inherently dangerous activity’ doctrine has been

appropriately extended beyond its original application to

3 Unpublished opinion per curiam, issued October 22, 2002 (Docket Nos. 233853, 233854).

only third parties to extend liability to landowners and

general contractors for injuries to employees of

independent contractors doing dangerous work.”4

II. STANDARD OF REVIEW

Whether the “inherently dangerous activity” doctrine

has been properly extended to include injuries to employees

of independent contractors who are injured while performing

dangerous work is a question of law that this Court reviews

de novo. Likewise, we review de novo a lower court’s

decision on a summary disposition motion. Quality Products

& Concepts Co v Nagel Precision, Inc, 469 Mich 362, 364;

666 NW2d 251 (2003).

III. ANALYSIS

It has been long established in Michigan that a person

who hires an independent contractor is not liable for

injuries that the contractor negligently causes. Lake

Superior Iron Co v Erickson, 39 Mich 492, 496 (1878);

DeForrest v Wright, 2 Mich 368, 370 (1852). Over time,

exceptions to this general rule have developed, including

4 469 Mich 947 (2003). We ordered that this case be submitted together with Ormsby v Capital Welding, Inc, 471 Mich ___ ; ___ NW2d ___ (2004), which involves the relationship between the “common work area” and “retained control” doctrines and the effect of those doctrines on the general rule of nonliability for owners and independent contractors.

the “inherently dangerous activity” doctrine. The class of

persons protected under the doctrine has undergone a

transformation since the doctrine’s inception.

A. Application of the Inherently Dangerous Activity Doctrine to Third Parties

Early cases giving rise to the inherently dangerous

activity doctrine limited the exception to injuries to

third parties. In Rogers v Parker, 159 Mich 278; 123 NW

1109 (1909), this Court first discussed an exception to the

general rule of nonliability for damages caused to a third

party by an independent contractor’s performance of an act

likely to do harm to that third party. The question before

this Court was whether a landowner who employed an

independent contractor to clear farmland was liable for

damages to neighboring property resulting when a fire that

the contractor had set spread to neighboring land. This

Court resolved the issue on statutory grounds, but

discussed in obiter dictum the common-law principles that

would have applied, stating:

[T]he rule relieving the employer where the work has been committed to an independent contractor is subject to the well-established exceptions that:

“If the thing to be done is in itself unlawful, or if it is per se a nuisance, or if it cannot be done without doing damage, he who causes it to be done by another, be the latter servant, agent, or independent contractor, is as

much liable for injuries which may happen to third persons from the act done as though he had done the act in person. So it is the duty of every person who does in person, or causes to be done by another, an act which from its nature is liable, unless precautions are taken, to do injury to others, to see to it that those precautions are taken, and he cannot escape this duty by turning the whole performance over to a contractor.” [Id. at 282-283 (some emphases added).]

In Inglis v Millersburg Driving Ass’n, 169 Mich 311;

136 NW 443 (1912), this Court elaborated on the above

common-law exception. In that case, agents of the

defendant association had set fires on fairgrounds property

in the defendant’s possession to clear it, and the fires

spread to the plaintiff’s adjoining land, causing damage.

This Court held that the defendant was estopped to argue

that independent contractors, rather than the

unincorporated association itself, were responsible for the

damage, because it had not pleaded that defense or argued

it at trial. Id. at 317-318. This Court opined in obiter

dictum, however, that an exception would have applied to

the general rule of nonliability of landowners for the

actions of independent contractors. While this Court cited

its decision in Rogers and various other formulations of

the rule, perhaps the best articulation of the principle

was as follows:

The doctrine of independent contractor, whereby one who lets work to be done by another, reserving no control over the performance of the work, is not liable to third persons for injuries resulting from negligence of the contractor or his servants, is subject to several important exceptions. One of these . . . is where the employer is, from the nature and character of the work, under a duty to others to see that it is carefully performed. It cannot be better stated than in the language used by Cockburn, C.J., in Bower v. Peate, 1 Q.B. Div. 321, 326, a leading and well-considered case. It is, ‘that a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise, unless means are adopted by which such consequences may be averted, is bound to see the doing of that which is necessary to prevent mischief, and cannot relieve himself of his responsibility by employing some one else——whether it be the contractor employed to do the work from which the danger arises, or some independent person——or to do what is necessary to prevent the act he has ordered done from becoming unlawful.’ . . . This does not abrogate the law as to independent contractor. It still leaves abundant room for its proper application. ‘There is,’ as stated by Cockburn, ‘an obvious difference between committing work to a contractor to be executed, from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless precautionary measures are adopted.’

“The weight of reason and authority is to the effect that, where a party is under a duty to the public, or third person, to see that work he is about to do, or have done, is carefully performed, so as to avoid injury to others, he cannot, by letting it to a contractor, avoid his liability, in case it is negligently done to the injury of another." Covington, etc., Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215 (55 N.E. 618 [1899], and cases cited.” [Inglis at 320-321 (citations omitted, emphasis added).]

Thus, the above rule, which has come to be known as

the “inherently dangerous activity exception,” is founded

on the existence of a duty on behalf of the landowner, or

employer of an independent contractor, and the duty must be

of the type that is nondelegable. The employer or

landowner must also be aware that the danger exists and

that it necessarily involves danger to others. Notably,

the type of danger contemplated by the Inglis Court was

danger to third parties and not to those involved in the

dangerous activity.

Over the next several decades, this Court reaffirmed

that, under this doctrine, the landowner must itself owe

some duty to the specific third party, that the negligent

act that causes the injury cannot be collateral to the work

contracted for, and that the injury that occurs must be

reasonably expected by the landowner. See Cary v Thomas,

345 Mich 616; 76 NW2d 817 (1956); Barlow v Kreighoff Co,

310 Mich 195; 16 NW2d 715 (1944); Grinnell v Carbide &

Carbon Chemicals Corp, 282 Mich 509; 276 NW 535 (1937);

Tillson v Consumers Power Co, 269 Mich 53; 256 NW 801

(1934); Watkins v Gabriel Steel Co, 260 Mich 692; 245 NW

801 (1932); Wight v H G Christman Co, 244 Mich 208; 221 NW

314 (1928). Notably, under this Court’s precedent, the

doctrine applied only to third parties.

B. Expansion of the Inherently Dangerous Activity Doctrine to a Contractor’s Employees

In Vannoy v City of Warren, 15 Mich App 158; 166 NW2d

486 (1968), the Court of Appeals purported to expand the

scope of the inherently dangerous activity doctrine to hold

a landowner liable not to a third party, but to the estate

of a deceased employee of an independent contractor. The

Court expressly rejected the landowner’s argument that the

doctrine applied only to third parties and not to the

employees of an independent contractor engaged in the

inherently dangerous activity. Id. at 164-165. The Court

stated that limiting the exception to third persons

“violate[d] the absolute character of the duty . . . .”

Id. at 164.

In McDonough v Gen Motors Corp, 388 Mich 430; 201 NW2d

609 (1972), a plurality of this Court reversed a directed

verdict for the defendant landowner, concluding that the

inherently dangerous activity exception could be applied to

impose liability on the owner for injuries to a

subcontractor’s employee. The plurality quoted Justice

COOLEY’s formulation of the rule that this Court cited in

Inglis:

“‘If I employ a contractor to do a job of work for me which, in the progress of its execution, obviously exposes others to unusual perils, I ought, I think, to be responsible, * * * for I cause acts to be done which naturally expose others to injury.’” [McDonough at 438, quoting Inglis, supra at 319, quoting 2 Cooley Torts (3d ed), p 109.]

Without explanation, the plurality assumed that the

“others” quoted above included the contractor’s employees

and not only third parties.

Justice BRENNAN dissented,5 contending that the

inherently dangerous activity exception protects

“strangers” and does not apply to “a plaintiff who was

himself actively engaged in the inherently dangerous

activity.” McDonough at 453. His dissent stated:

The application of this well settled exception is clear in cases where the injured person is a stranger to the inherently dangerous activity. In Inglis [supra], the inherently dangerous activity was burning, and the plaintiff was a neighboring landowner; in Grinnell [supra], the danger was explosion, the plaintiff a purchaser of a stove; in Watkins [supra], the dangerous activity was elevated steel construction, the plaintiff a mason contractor; in Olah v Katz, 234 Mich 112 [207 NW 892] (1926), the danger was an open pit, the plaintiff a neighboring child; in Detroit v Corey, 9 Mich 165 (1861), the danger was an open ditch, the plaintiff a passer-by; in Darmstaetter v Moynahan, 27 Mich 188 (1873), the danger was a wall of ice in the roadway, the plaintiff a sleigh rider; in McWilliams v Detroit Central

5 Justice T. G. KAVANAGH joined Justice BRENNAN’s dissent.

Mills Co, 31 Mich 274 (1875), the danger was a railroad switching operation, the plaintiff a passer-by. . . .

Indeed, there are almost no cases which have come to notice in which the suit is brought by or on behalf of a plaintiff who was himself actively engaged in the inherently dangerous activity.

Those few precedents which are cited seem to be founded upon other grounds.

* * *

[T]he rule of liability is designed to protect innocent third parties injured by the execution of an inherently dangerous undertaking. The rule is not designed, nor was it ever intended to benefit the contractor who undertakes the dangerous work, or his employees.

Thus, if I employ a contractor to remove a tree stump from my yard by use of explosives, I am liable to my neighbor whose garage is damaged by the concussion. This is because it is I who have set the project in motion; it is I who have created the unusual peril; it is for my benefit that the explosives were used. As between myself and my neighbor, I ought not to be permitted to plead that it was the contractor's negligence and not my own which damaged his property.

But if the contractor should blow up his own truck, I should not be liable. He is the expert in explosives and not me [sic]. I had neither the legal right nor the capability to supervise his work. The same would be true if the contractor's workman had injured himself, or been injured by the carelessness of a fellow workman or the negligence of his employer. Neither the contractor nor his employees are "others", as contemplated in Cooley's statement of the rule. Indeed, they are privy to the contract which creates the peril.

The mischief of today's decision is not its result, but its logic. One assumes that a company like General Motors has no want of access

to expertise. It may well have safety engineers on its payroll far more knowledgeable about structural steel than the decedent's employer. But to predicate liability here on the Inglis, Olah, Wight and Watkins line of cases is to impose upon many, many other, less sophisticated defendants the same burden to attend to the safety of the employees of independent contractors. [McDonough, supra at 453-456.]

In Bosak v Hutchinson, 422 Mich 712, 724; 375 NW2d 333

(1985), this Court relied on Vannoy and McDonough for the

proposition that the inherently dangerous activity

exception has, on occasion, been applied to employees of

contractors performing dangerous work. This Court did not

provide further analysis of this issue, however, given its

holding that assembling a crane after hours, the activity

involved in that case, did not constitute a dangerous

activity, but a routine construction activity. Id. at 728.

Further, in Justus v Swope, 184 Mich App 91; 457 NW2d

103 (1990), on which the trial court in the instant case

relied, the Court of Appeals stated, “The inherently

dangerous activity doctrine has, thus far, been found to

impose liability in cases involving owners fully capable of

recognizing the potential danger.” Id. at 96, citing

McDonough, Vannoy, and others. The Court declined to

impose liability on “mere homeowners,” id. at 96, for

injuries that an employee of an independent contractor

sustained while removing a dead tree from the homeowners’

yard. The Court stated that it was unreasonable to expect

the homeowners to be cognizant of the particular risks

inherent in tree removal. Id. at 97-98. Thus, the Court

seemingly would have imposed liability if the homeowners

had been aware of such risks. The Court opined that

imposing liability in that case, however, was exactly the

fear that Justice BRENNAN expressed in his dissent in

McDonough.

C. Analysis

The analysis in Justice BRENNAN’s McDonough dissent is

persuasive and consistent with the longstanding common-law

principles discussed in our case law. When a landowner

hires an independent contractor to perform work that poses

a peculiar danger or risk of harm, it is reasonable to hold

the landowner liable for harm to third parties that results

from the activity. If an employee of the contractor,

however, negligently injures himself or is injured by the

negligence of a fellow employee, it is not reasonable to

hold the landowner liable merely because the activity

involved is inherently dangerous. As Justice BRENNAN

recognized, the inherently dangerous activity doctrine was

designed to protect third parties, not those actively

involved in the dangerous activity.

The Restatement of Torts echoes the above principle.

2 Restatement of Torts, 2d, § 416 provides:

One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise. [Emphasis added.]

Similarly, 2 Restatement of Torts, 2d, § 427 states:

One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger. [Emphasis added.]

The text of the above provisions applies to “others.” The

term “others” necessarily refers to persons other than

those directly involved in the dangerous activity.

Moreover, all the illustrations in the Restatement

pertaining to §§ 416 and 427 involve injuries to innocent

third parties and not to those directly involved in the

activity. For example, the first illustration under § 416

provides:

1. A employs B, an independent contractor, to erect a building upon land abutting upon a public highway. The contract entrusts the whole

work of erection to B, and contains a clause requiring the contractor to erect a sufficient fence around the excavations necessary for the erection of the building. It contains also a clause by which the contractor assumes all liability for any harm caused by his work. B digs the excavation but fails to erect a fence. In consequence, C, while walking along the highway at night, falls into the cellar and is hurt. A is subject to liability to C.

In the above illustration, C is an innocent third party and

is not directly involved in the dangerous activity.

Similarly, C in the following illustration under § 427 is

an innocent third party:

3. A employs B, an independent contractor, to excavate a sewer in the street. B leaves the trench unguarded, without warning lights, and C drives his automobile into it in the dark. The danger is inherent in the work, and A is subject to liability to C.

Although a plurality of this Court in McDonough cited §§

416 and 427 of the Restatement when discussing the

inherently dangerous activity exception, the plurality

failed to recognize that the term “others” refers to third

parties, and not to those persons involved in the dangerous

activity.

The Court of Appeals in Vannoy improperly extended the

inherently dangerous activity doctrine to include employees

of independent contractors. We thus overrule the Court of

Appeals holding in Vannoy. We also reject this Court’s

obiter dictum in Bosak to the extent that it approved of

Vannoy’s extension of the doctrine. As our longstanding

precedent, before McDonough, and the Restatement make

clear, the inherently dangerous activity exception is

limited to third parties.6

Further, as Justice BRENNAN recognized in McDonough,

allowing liability to be imposed on landowners for injuries

resulting to an independent contractor’s employees will

necessarily result in liability imposed not only on large

corporations fully capable of assessing and providing

safety precautions, but also on “less sophisticated”

landowners who may be unaware of such dangers or unable to

provide precautionary measures to avoid the inherent risk.

Indeed, in many situations it may be the risk itself that

prompts a landowner to hire an independent contractor in

the first instance. A contractor who may specialize and

routinely engage in the activity would likely be better

able to perform the activity in a safe manner. Likewise,

the contractor is probably better able to implement

6 Our concurring colleague opines that an exception to this rule exists where a landowner retains control over the work performed and is in a position to ensure that the independent contractor takes adequate safety precautions. Post at 2. Because these circumstances are not presented in this case, we express no opinion regarding whether a landowner who has retained control over the dangerous work may be subject to liability for injuries to a contractor’s employee caused by the contractor’s negligence.

reasonable safety precautions for the protection of its

employees who perform the dangerous work, and this duty

accordingly lies with the contractor. We thus adhere to

the established common-law principle that this Court had

consistently followed before McDonough.

Because the inherently dangerous activity exception

does not apply when the injured party is an employee of an

independent contractor rather than a third party, the

exception does not apply in the instant case. Accordingly,

the trial court properly granted summary disposition for

defendants.

IV. CONCLUSION

We conclude that the inherently dangerous activity

exception is limited to third parties and does not apply to

employees of independent contractors injured while

performing dangerous work. Because plaintiff was an

employee of an independent contractor rather than a third

party, the doctrine is inapplicable in this case.

Accordingly, we reverse the judgment of the Court of

Appeals.

Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

S T A T E O F M I C H I G A N

SUPREME COURT

JENNIFER M. GRANHOLM, Attorney General of the State of Michigan, and MICHIGAN DEPARTMENT OF COMMUNITY HEALTH,

KELLY, J. (concurring in result only).

I agree with the result reached by the majority in

this case. However, I write separately to point out that

the majority takes no cognizance of the effect of its

analysis when read together with its decision in Ormsby v

Capital Welding, Inc, 471 Mich ___; ___ NW2d ___ (2004). I

believe that our jurisprudence requires that a landowner retaining control over the performance of inherently

dangerous work should be liable for an injury to an

independent contractor's employee. The decision in this

case, when read with the decision in Ormsby, suggests

otherwise.1

A landowner is generally not liable to the employee of

a contractor for injuries caused by the contractor’s

negligence. Ante at 5. An exception has been made where

the landowner retained control of the job site and

inherently hazardous activities were undertaken.

The Court holds today that a landowner is not liable

for a contractor’s negligence that injures the contractor's

employee engaged in an inherently dangerous activity. Ante

at 14. The Court adopts Justice Brennan’s dissenting

analysis in McDonough v Gen Motors2 and holds that the

landowner has “'neither the legal right nor the capability

to supervise [the independent contractor’s] work.'” Ante

at 12, quoting McDonough at 456. The landowner here is not

alleged to have retained control of the job site.

1 I dissented from the decision in Ormsby on the ground that the inherently dangerous activity doctrine and the retained control doctrine are distinct theories of tort liability. 2 McDonough v Gen Motors Corp, 388 Mich 430; 201 NW2d 609 (1972).

As previously indicated, a landowner is liable to a

contractor's employee if he retained control over hazardous

work and was positioned to ensure that the contractor took

adequate precautions. Funk v General Motors Corp, 392 Mich

91, 105; 220 NW2d 641 (1974), overruled in part on other

grounds by Hardy v Monsanto Enviro-Chem Systems, Inc, 414

Mich 29; 323 NW2d 270 (1982).

The retained control doctrine is a distinct theory of

liability. It applies where the entity engaging the

services of the independent contractor has the legal right

and the capability to supervise the work. Plummer v

Bechtel Constr Co, 440 Mich 646, 659; 489 NW2d 66 (1992)

(opinion by Levin, J). The doctrine is applicable

regardless of whether the employer is a landowner or a

general contractor.

This case was argued and submitted together with

Ormsby v Capital Welding, Inc. The Court in Ormsby holds

that the retained control doctrine, applied to general

contractors who utilize subcontractors, is merely an

element of the common work area doctrine. It is not an

independent theory of liability. Ormsby at ___.

If Ormsby is held to apply to landowners, the

decisions here and in Ormsby, read together, could have

unfortunate unintended results in future cases. The

inference to be drawn from them is this: a landowner who

retains control of inherently dangerous work on a job site

will not be liable for injuries to a contractor's employee

unless the injury occurred in a common work area. The

majority denies the validity of this inference. Id. at

___, n 13. However, the opinion’s language strongly belies

that denial.

Under the tort-reform statutes, liability is almost

always several only and not joint. MCL 600.2956. Legal

liability is distinct from fault, although it is based on

fault. Fault is determined by the trier of fact3 who

assigns it, regardless of whether a party can be held

legally liable. MCL 600.6304(1). However, an injured

party can recover only from a party that can be held

legally liable.

Under the preceding tort-reform statutes, the trier of

fact can assign fault to a landowner who has directed the

actions of an independent contractor engaged in an

inherently dangerous activity. The Court’s opinions in

DeShambo and Ormsby could be interpreted to hold that such

a negligent landowner could escape all liability for injury

caused to the employee of his contractor. The landowner

3 MCL 600.2957(1).

cannot be held liable under the inherently dangerous

activity doctrine. DeShambo. Neither can he be held

liable under the retained control doctrine. Ormsby.

I believe that this result would be inconsistent with

principles underlying the common law. Moreover, it would

be inconsistent with the intent of the tort-reform

statutes. A negligent actor is intended to be legally

liable for his actions. The majority potentially

undermines this principle with the holdings in these two

cases. Absent language correcting this problem, the

analysis in the majority opinion is unacceptable to me and

I concur only in the result reached by the majority.

Marilyn Kelly