Hunley v. DuPont Automotive

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Hunley, et al. v. DuPont Automotive No. 01-2733 ELECTRONIC CITATION: 2003 FED App. 0304P (6th Cir.) File Name: 03a0304p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Donnelly W. Hadden, Ann Arbor, Michigan, for FOR THE SIXTH CIRCUIT Appellants. Raymond Michael Ripple, E.I. DU PONT DE _________________ NEMOURS AND COMPANY, Wilmington, Delaware, for Appellee. ON BRIEF: Donnelly W. Hadden, Ann Arbor, JERRILYN HUNLEY; JEROME X Michigan, Patrick D. Ball, Mount Clemens, Michigan, for HUNLEY, - Appellants. Raymond Michael Ripple, Donna L. Goodman, E.I. DU PONT DE NEMOURS AND COMPANY, Plaintiffs-Appellants, - Wilmington, Delaware, Robert S. Krause, DICKINSON, - No. 01-2733 - WRIGHT, PLLC, Detroit, Michigan, for Appellee. v. > , _________________ - DU PONT AUTOMOTIVE, - OPINION Division of E.I. DuPont de - _________________ Nemours and Co., Inc., - Defendant-Appellee. - ALGENON L. MARBLEY, District Judge. This is a - negligence action that was removed to federal court based on N diversity jurisdiction. Plaintiffs-Appellants, Jerrilyn Hunley, Appeal from the United States District Court individually and as guardian of the estate of Jerome Hunley, for the Eastern District of Michigan at Detroit. and Jerome Hunley, brought suit against Defendant-Appellee, No. 00-72043—Nancy G. Edmunds, District Judge. DuPont Automotive, Division of E.I. DuPont de Nemours and Co., Inc., for harm incurred by Jerome Hunley after his Argued: June 17, 2003 exposure to a large paint spill in the DuPont Automotive plant in which he was working as a security guard. Plaintiffs- Decided and Filed: August 25, 2003 Appellants now appeal the district court’s ruling granting summary judgment to Defendant-Appellee. The district court Before: BOGGS and GILMAN, Circuit Judges; exercised jurisdiction over this matter pursuant to 28 U.S.C. MARBLEY, District Judge.* § 1332. This Court’s appellate jurisdiction is proper under 28 U.S.C. § 1291. For the reasons discussed below, this Court finds that the district court properly granted summary judgment to Defendant-Appellee, and, therefore, AFFIRMS the judgment of the district court. * The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation.

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I. FACTUAL AND PROCEDURAL BACKGROUND DuPont contracts with Pinkerton, a private security company, to provide security at the plant. At the time of the A. Factual History spill, Plaintiff-Appellant Jerome Hunley (“Hunley”) was employed as a Pinkerton security guard at the DuPont plant Defendant-Appellee, DuPont Automotive, Division of E.I. in Mount Clemens. Pinkerton security guards are obligated DuPont de Nemours and Co., Inc. (“DuPont”), operates a to follow Pinkerton’s Site Post Orders. Those orders specify paint factory in Mount Clemens, Michigan. At approximately that, in the event of a spill, Pinkerton security guards are to 9:34 p.m., on January 27, 1997, DuPont suffered one of the provide a head count report to the fire brigade captain.2 The largest paint spills in the history of the plant. At that time, a Pinkerton Site Post Orders also expressly state: “Security DuPont employee was in the process of filling a shipping does not respond to the scene of a spill.” container with paint to ship to an automobile manufacturer. As she was moving the container toward a holding tank, she According to Plaintiffs-Appellants, upon Hunley’s arrival struck the bottom of the tank with the top of the container, at work on the evening of the spill, he was told by his thereby dislodging the filling valve of the tank. Within the supervisor, Bill Maynard, to deliver the head-count report to next few minutes, the tank emptied its 2400 gallons of paint the fire brigade captain. Hunley printed out the report, and onto the worker and the surrounding work area. then delivered it to the fire brigade captain, whom he found in the area of the spill. Hunley claims that he gained access DuPont mandates that any chemical spill of more than one- to the area of the spill by entering through an open door. quarter cup necessitates an emergency response. Therefore, When he entered the area of the spill to deliver the report, he at 9:35 p.m. on the evening of the spill, DuPont employees was not wearing protective clothing, nor was he breathing initiated emergency procedures. In particular, a DuPont fire through a respirator; none of these protective items had been brigade member working in the production area sounded the issued to him by DuPont. The fire brigade members in the alarm, calling into action a plant-wide emergency response. vicinity of the spill, however, were all wearing protective Upon hearing the alarm, DuPont’s internal fire brigade clothing, including masks.3 members donned their protective gear and entered the spill area. According to DuPont, within minutes, all non-fire brigade employees had evacuated the production area and reported to their assigned evacuation sites, closing the fire doors between the production area and the shipping doo r that had been left open. warehouse as they left. One door, however, was left open, 2 such that non-emergency response employees were able to Although there was some dispute between the parties regarding the gain entrance to the area of the spill.1 nature of the head count repo rt provided by Pinkerto n Security, it appears that the purpo se of the report is to ensure that all non-emerge ncy response emp loyees signed in to the building at the time of the emergency are accounted for. 1 DuPo nt asserts that all doors to the area of the spill were shut. As 3 this matter is before the Court on appeal from the district court’s order The Court reco gnizes that DuPo nt asserts that Hunley had been granting summary judgment to the Defendant-Appellee, however, the issued protective clothing, but that he was simply not wearing it at that Court views the facts in the light most favorable to P laintiffs-Appellants. time. Hunley, however, asserts that the special clothing that he was Therefore, the Court presumes for the present purpo ses that the Plaintiffs- provided by DuPo nt would not have protected him from the spill, and was Appellants are correct that Hunley entered the area of the spill through a not of the same type as that worn by the fire brigad e members.

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Hunley states that, shortly after delivering the report to the spill by being in the area without protective gear while all fire captain, he began to have “rushing thoughts,” which he others in the vicinity of the spill were protected by special describes as “too many thoughts running through [his] head clothing and masks. at once,” and that he also began feeling dizzy. After working the night of the spill, Hunley went home and tried to sleep. Following one year of hospitalization, Hunley was tried on While trying to sleep, however, he began hallucinating. In a charge of manslaughter for the death of the nineteen-year- particular, he claims that he heard “whale sounds” and saw old woman in the car accident. At the conclusion of the trial, “upside down people.” Hunley then drove to his he was found guilty but mentally ill. He is currently grandmother’s home, thinking that would help calm him.4 incarcerated, serving a term of four to fifteen years.

On the drive back home from his grandmother’s house, B. Procedural History Hunley’s hallucinations continued. In response to one of the hallucinations, Hunley began driving his truck at speeds Plaintiffs-Appellants originally filed this case in the Circuit estimated to be between sixty and ninety miles per hour Court for the County of Macomb on January 28, 2000. against rush hour traffic in Troy, Michigan. Ultimately, his Defendant-Appellee removed the case to the United States car became airborne, and then landed on top of the car of a District Court for the Eastern District of Michigan on May 8, nineteen-year-old woman, who was pronounced dead at the 2000, on the basis of diversity of citizenship. On scene of the accident. Immediately following the accident, November 28, 2001, after discovery had been completed, the Hunley was transported to a nearby hospital, where he was district court issued an opinion and order granting summary initially diagnosed with brief reactive psychosis, a temporary judgment to Defendant-Appellee. Plaintiffs-Appellants filed diagnosis used to explain his acute psychotic symptoms. their notice of appeal from that order on December 18, 2001.

Prior to the car accident, Hunley had no recorded medical II. STANDARD OF REVIEW history of mental illness, nor did he have a criminal record. He was twenty-four years old at the time. After a series of The district court’s grant of summary judgment is subject mental evaluations following the accident, Hunley was to de novo review by this Court. Peters v. Lincoln Elec. Co., ultimately diagnosed with schizophrenia, an organic mental 285 F.3d 456, 465 (6th Cir. 2002) (citing Darrah v. City of disease that frequently manifests itself when sufferers are in Oak Park, 255 F.3d 301, 305 (6th Cir. 2001), and Perez v. their late teens or early twenties. He has also been diagnosed Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir. 1998)). Thus, as suffering from an “acute psychotic break” accompanied by on appeal, this Court reviews a motion for summary judgment auditory and visual hallucinations at the time of the accident. according to the same standard that the district court applies. Hunley’s expert, Dr. Gerald Shiener, M.D., opines that Hunley’s psychotic break was brought on by the stress of Summary judgment is appropriate “[i]f the pleadings, knowing that he had been exposed to toxins in the area of the depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” FED . R. CIV . P. 4 56(c). The movant has the burden of establishing that there Apparently, one full day passed between the night of the spill and the day that Hunley drove to his grandmother’s home. Hunley has no are no genuine issues of material fact, which may be recollection o f what occurred on that interv ening d ay.

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accomplished by demonstrating that the non-moving party includes (a) cause in fact and (b) legal, or proximate, cause; lacks evidence to support an essential element of its case. and (4) damages to the plaintiff. Case v. Consumers Power Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Logan Co., 615 N.W.2d 17, 20 & n.6 (Mich. 2000). The district v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001). In court premised its ruling on its finding that, although DuPont response, the non-moving party must present “significant owed a duty to Hunley, DuPont did not breach that duty probative evidence” to show that “there is [more than] some through its conduct. Based on the analysis set forth below, metaphysical doubt as to the material facts.” Moore v. Philip we conclude that, although Plaintiffs-Appellants raised a Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). genuine issue of fact with respect to both duty and breach, “[S]ummary judgment will not lie if the dispute is about a summary judgment was nonetheless proper because they material fact that is ‘genuine,’ that is, if the evidence is such failed, as a matter of law, to establish a genuine issue of that a reasonable jury could return a verdict for the non- material fact as to the existence of proximate cause. moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 1. Existence of a Duty

In evaluating a motion for summary judgment, the evidence DuPont argues that Plaintiffs-Appellants have failed to must be viewed in the light most favorable to the non-moving establish the duty element of the prima facie case because it party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 had neither a duty to provide Hunley with personal protective (1970). The non-moving party, however, “may not rest upon equipment, nor a duty to warn him that a psychotic break was its mere allegations . . . but . . . must set forth specific facts a danger associated with visual exposure to a paint spill. showing that there is a genuine issue for trial.” FED . R. CIV . DuPont errs, however, by viewing the issue of duty so P. 56(e); see Celotex, 477 U.S. at 324; Searcy v. City of narrowly. Although it may not have owed these particular Dayton, 38 F.3d 282, 286 (6th Cir. 1994). The existence of duties to Hunley, it did have a general duty to exercise due a scintilla of evidence in support of the non-moving party’s care to protect its security guards, including Hunley, from position will not be sufficient; there must be evidence on certain dangers associated with paint spills. This duty arises which the jury could reasonably find for the non-moving from the relationship between DuPont and Hunley of party. Anderson, 477 U.S. at 251; Copeland v. Machulis, 57 premises owner and invitee. F.3d 476, 479 (6th Cir. 1995). Generally, “[a]n invitee, and in this case a business invitee, III. DISCUSSION is one who enters a premises to conduct business that concerns the premises owner at the owner’s express or A. Negligence implied invitation.” Riddle v. McLouth Steel Prods. Corp., 485 N.W.2d 676, 679 n.4 (Mich. 1992). The Supreme Court The district court granted summary judgment to DuPont on of Michigan has determined that an independent contractor is the ground that Hunley failed to set forth a prima facie case a business invitee. Beals v. Walker, 331 N.W.2d 700, 704 of negligence. To state a prima facie case of negligence in (Mich. 1982) (recognizing that an employee of an Michigan, the plaintiff must establish the following four independent contractor who had been hired by the premises elements: (1) that the defendant owed the plaintiff a duty; owner to do repair work was an invitee of the premises (2) that the defendant breached that duty; (3) that the owner); see Case v. Wal-Mart Stores, Inc., 13 F. Supp. 2d defendant’s breach caused the plaintiff’s harm, which 597, 602 (S.D. Miss. 1998) (citing Beals for the proposition

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that, in Michigan, an employee of an independent contractor response personnel with such protective gear. Therefore, as is a business invitee). Here, Pinkerton had a contract to the premises owner, DuPont was under an obligation to provide security services to DuPont, and Hunley was an exercise due care to protect its security guards from these employee of that independent contractor. Thus, under Beals, known risks. Hunley was a business invitee on DuPont’s premises. Accordingly, we conclude that Plaintiffs-Appellants A premises owner has a duty to exercise reasonable care to satisfied the duty element of their prima facie case. protect invitees from unreasonable risks of harm caused by a dangerous condition on the premises. Williams v. 2. Breach Cunningham Drug Stores, Inc., 418 N.W.2d 381, 383 (Mich. 1988) (citing RESTATEMENT (SECOND) OF TORTS § 343, at Plaintiffs-Appellants assert that DuPont breached its duty 215-16). The owner’s duty is not absolute, however. “It does to Hunley by failing to provide him with protective gear, by not extend to conditions from which an unreasonable risk failing to warn him about the nature of the hazards associated cannot be anticipated . . . .” Id.; Stabnick v. Williams Patrol with paint spills, and by failing to warn him about the risks Serv., 390 N.W.2d 657, 658 (Mich. Ct. App. 1986) (holding inherent in delivering the head count to the fire brigade that premises owners have no duty to warn invitees of captain. In addition, they argue that DuPont breached its duty unforeseeable dangers). A premises owner has a duty to warn when it allowed Hunley to enter the area of the spill through invitees only of known dangers, or dangers that should have an open door. been known through the exercise of reasonable care, which the premises owner understands or should have understood First, we agree with the district court that DuPont did not would pose an unreasonable risk. Bertrand v. Alan Ford, breach its duty to Hunley by failing to provide him with Inc., 537 N.W.2d 185, 186 (Mich. 1995). protective gear. As indicated above, the duty imposed upon DuPont is a duty to protect its security guards from known Applying the Cunningham Drug Stores standard, we dangers that DuPont understands pose an unreasonable risk of believe that DuPont had a duty to exercise due care to protect harm. Although the paint spill presented a risk, DuPont had its security guards, including Hunley, from the known no reason to know that it would present a risk to Hunley. At dangers associated with paint spills that pose an unreasonable the time of the spill, DuPont understood that Pinkerton risk of harm. Although DuPont did not have a duty to protect security guards were not to respond to the scene of a chemical its security guards from unreasonable risks that could not be spill. The purpose of providing protective gear is to protect anticipated, it is clear that the company did anticipate at least those employees who will be exposed to the spill itself. some unreasonable risks from paint spills. The fact that Because DuPont reasonably believed that, as a Pinkerton DuPont must have been aware of at least some risks security guard, Hunley would not respond to the scene of the associated with paint spills is evidenced by the fact that it spill, DuPont could not have breached its duty to Hunley by provided its own emergency personnel with protective failing to provide him with protective gear. equipment, including special clothing and masks, with which they equipped themselves before entering the area of the spill. For the same reasons, we hold that DuPont did not breach Were it not for the existence of some dangers that were its duty to Hunley by failing to warn him of the dangers known and anticipated by DuPont to pose an unreasonable associated with toxic spills and with delivering head counts risk of harm, the company likely would not have equipped its to the fire brigade captain in the area of those spills.

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Although those dangers exist, and were known by DuPont, 3. Causation DuPont had no reason to foresee that Hunley would be exposed to those dangers; DuPont’s management reasonably We now turn to the question of whether Plaintiffs- believed that Hunley’s Site Post Orders prohibited him from Appellants have raised a genuine issue of material fact with entering the area of the spill. Thus, DuPont had no reason to respect to the issue of causation. To satisfy this element, believe that these dangers posed an unreasonable risk of harm Plaintiffs-Appellants must demonstrate both cause in fact and to Hunley. Therefore, DuPont did not breach its duty by legal, or proximate, cause. Based on our conclusion that failing to give Hunley these warnings. Plaintiffs-Appellants have failed to demonstrate proximate cause as a matter of law, we need not reach the issue of cause A question of fact exists, however, with respect to whether in fact. DuPont may have breached its duty to protect Hunley from the dangers of paint spills by leaving open a door to the spill Relying on La Pointe v. Chevrette, 250 N.W. 272 (Mich. area. DuPont asserts that all doors to the area of the spill 1933), Hunley asserts that, under Michigan law, proximate were closed upon evacuation of the employees who had been cause requires only that the harm suffered by the plaintiff be working in the area prior to the spill. Hunley, on the other the natural and probable result of the defendant’s negligence, hand, alleges that he entered the area to deliver the head count not that the particular harm suffered be foreseeable. In through an open door. Thus, an issue of fact exists with La Pointe, a young boy suffered an unusual infection of the respect to whether a door was, in fact, left open. bone in his leg after his employer forced him to work outdoors in inclement weather without the proper protective Assuming the door was left open, a jury might find that this clothing. In ruling that the employer could be liable for the fact constitutes a breach of DuPont’s duty. Although DuPont boy’s disease, even though it was not foreseeable that such a understood that Pinkerton security guards were not to enter severe illness would result from working outside in inclement the area of the spill, a jury might find that DuPont should weather, the court stated: have foreseen that a security guard would nonetheless enter the area if a door were left open. In particular, the risk of a “Where an act is negligent, to render it the proximate security guard entering the area of the spill through an open cause, it is not necessary that the one committing it might door might have been foreseeable in light of the fact that the have foreseen the particular consequence or injury, or the security guard was told to deliver a head count to the fire particular manner in which it occurred, if by the exercise brigade captain, wherever he may be. Moreover, although of reasonable care it might have been anticipated that DuPont’s other failures do not in and of themselves constitute some injury might occur.” a breach of DuPont’s duty, those failures certainly become factually significant if DuPont could have foreseen that, by Id. at 275 (quoting Baker v. Mich. Cent. R.R. Co., 135 N.W. leaving a door open, Hunley might enter the area of the spill 937, 940 (Mich. 1912)). despite his Site Post Orders to the contrary. Although this language in La Pointe suggests that the Therefore, we conclude that the Plaintiffs-Appellants particular harm suffered by the plaintiff need not have been satisfied the breach element of their prima facie case to the foreseen for there to be proximate cause, more recent extent necessary to survive summary judgment. Michigan case law sets forth a different standard of law. Recent cases indicate that Michigan courts have shifted their

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analysis of this issue and, under the current view, the DuPont’s having left the door to the spill area open. Even if determination of proximate cause involves an examination of it was foreseeable that a security guard not clothed in the foreseeability of the harm suffered by the plaintiff, and protective gear would enter the area of the spill and see other whether the defendant should be held responsible for such individuals in the area wearing protective gear, it was not harm. Haliw v. Sterling Heights, 627 N.W.2d 581, 588 reasonably foreseeable that, as a result of doing so, he would (Mich. 2001) (finding that “‘legal cause or “proximate cause” suffer the harm incurred by Hunley. Hunley’s own expert, normally involves examining the foreseeability of Dr. Shiener, stated simply that he believed that some of the consequences, and whether a defendant should be held legally mental health literature indicated that there was a relationship responsible for such consequences’”) (quoting Skinner v. between the onset of psychosis and exposure to stressful Square D Co., 516 N.W.2d 475, 479 (Mich. 1994)); Moning situations. This statement does not indicate that exposure to v. Alfono, 254 N.W.2d 759, 765 (Mich. 1977) (stating that stressful situations is certain to cause psychosis, or that even proximate cause turns on whether the result of the defendant’s mental health experts can foresee which stressful situations conduct was foreseeable). Indeed, even some cases that will cause psychosis. Accordingly, no reasonable mind could predated La Pointe indicate that proximate cause requires that find that it was foreseeable that exposure to this stressful the particular harm suffered by the plaintiff be foreseeable. situation would have resulted in Hunley’s illness. Luck v. Gregory, 241 N.W. 862, 864 (Mich. 1932) (stating that proximate causation requires not only that the plaintiff’s Furthermore, we are of the opinion that Hunley failed to harm be the natural and probable result of the defendant’s establish proximate cause even under the more lenient conduct, but also that “it ought to have been foreseen, in the standard of foreseeability that he contends applies under these light of the attending circumstances”); Clumfoot v. St. Clair circumstances. It may have been foreseeable that some Tunnel Co., 190 N.W. 759, 760 (Mich. 1922) (recognizing physical harm might result from exposure to the paint spill. that proximate cause requires that the reasonably prudent Plaintiffs-Appellants, however, argue not that Hunley’s person would have foreseen or anticipated the plaintiff’s harm psychotic break resulted from exposure to the spill itself, but as a result of the defendant’s negligence). that it resulted from Hunley’s exposure to the stress of knowing that he had been in the area of the spill while he was Accordingly, we will apply Michigan’s more recent not wearing protective gear, although others in the area were principle of proximate cause in examining whether Plaintiffs- wearing such gear. We conclude, as a matter of law, that it Appellants have raised a genuine issue of material fact with was not reasonably foreseeable that any harm, let alone the respect to this element.5 Applying this standard, it is clear particular harm suffered by Hunley, would have resulted from that Plaintiffs-Appellants have failed to establish this element this stress.6 of their prima facie case because no reasonable mind could find that it was foreseeable that Hunley would suffer an acute psychotic break, and, ultimately, schizophrenia, as a result of 6 It is worth noting that this case is distinguishable from La P ointe . In La P ointe, although the particular harm suffered was not necessarily foreseeable, it was foreseeable that some physical harm would result from 5 being forced to work outdoors in inclement weather. Here, on the other Although proximate cause often must be resolved by the jury, the hand, it was not foreseeable that any harm would result to Hunley from Court may decid e this issue as a matter of law if reasonable m inds co uld the stress of knowing that he was in the area of the toxic spill without not disagree with re spect to the resolution of this issue. Nichols v. Dobler, protective gear. Furthermore, because security guard s are expected to 655 N .W.2d 787, 788 (Mich. Ct. App. 2002 ). react to situations that would likely cause stress, it was not foreseea ble

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Therefore, we AFFIRM the district court’s ruling granting 2. Application of the Doctrine summary judgment to DuPont, but do so on the ground that Hunley failed to raise a genuine issue of material fact with In its opinion, the district court found that Hunley was respect to proximate cause, a key element of his prima facie prevented from recovering against DuPont because he was case of negligence. harmed while performing the very duty that he was hired to perform: delivering the head count to the fire brigade B. Assumption of Risk captain. On appeal, Plaintiffs-Appellants assert that the district court erred because the Michigan Supreme Court As an alternative basis for its ruling, the district court found has determined that the doctrine of assumption of risk is no that, even if Hunley had satisfied all four elements of his longer viable as an affirmative defense, except in very prima facie case, summary judgment was nonetheless proper specific circumstances. In particular, they state that the based on the affirmative defense of assumption of risk. We doctrine is viable only when the plaintiff was an employee agree, and find that, in addition to the proximate cause of the defendant and assumed an express contractual analysis set forth above, the doctrine of primary assumption assumption of risk for purposes of his employment. They of risk also supports the district court’s ruling granting assert that those circumstances are absent here, and that, summary judgment to DuPont. therefore, the defense cannot apply to bar their claim. 1. Propriety of District Court’s Reliance on Assumption Contrary to Plaintiffs-Appellants’ characterization of the of Risk current state of the law in Michigan with respect to assumption of risk, we find that the affirmative defense is As a threshold matter, Plaintiffs-Appellants argue that it still viable, and, moreover, that it applies under these was improper for the district court to apply the doctrine of circumstances. assumption of risk to this case because that affirmative defense was not argued by the Defendant either in its In Kreski v. Modern Wholesale Electric Supply Co., 415 written motion for summary judgment or during oral N.W.2d 178 (Mich. 1987), the Michigan Supreme Court argument on the motion. We conclude, however, that the distinguished between primary assumption of risk, which district court acted within its authority in relying upon this involves a situation in which the defendant does not owe a doctrine. A district court may properly grant summary duty of care to the plaintiff because the plaintiff agreed in judgment on grounds not argued in the motion by the advance to relieve the defendant of a duty of care, and parties. Hines v. Joy Mfg. Co., 850 F.2d 1146, 1150 (6th secondary assumption of risk, which involves a situation in Cir. 1988) (“Where it is clear there is no genuine issue of which the plaintiff voluntarily encounters a known risk material fact, a court may properly grant summary without first manifesting assent to relieve the defendant of judgment on a ground other than that assigned in the liability. Id. at 185. The Kreski court found that, although motion.”). Therefore, we proceed to consider the merits of Felgner v. Anderson, 133 N.W.2d 136 (Mich. 1965), the defense under these circumstances. eliminated secondary assumption of risk, primary assumption of risk is still a viable affirmative defense in Michigan. Id. It recognized, in particular, that, post- Felgner, primary assumption of risk had been relied upon that stress would cause this type of reaction.

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in Carter v. Mercury Theater Co., 379 N.W.2d 409 (Mich. 16, 1987, 737 F. Supp. 409 (E.D. Mich. 1989), also rejected Ct. App. 1985). Id. at 185 n.11. the plaintiffs’ claims based on the doctrine of primary assumption of risk. In Air Crash Disaster, private security In Carter, a private security guard was shot by two guards were sent to the scene of a plane crash to secure the patrons at the movie theater where he had been working. area. In a subsequent lawsuit, the guards claimed Carter, 379 N.W.2d at 410. The security guard brought a psychological and emotional injuries from having to gather negligence action against the theater for failing to prevent and identify bodies and body parts of the victims of the the assailants from reentering the theater after they had crash. Id. at 410. The district court dismissed the action, been ejected. Id. After the trial court denied summary finding that the guards had assumed the risk of the harm judgment to the defendant, the Michigan Court of Appeals that they suffered because the alleged psychological and reversed, finding that the plaintiff could not recover from emotional injuries resulted from their having performed the the theater because he was injured while performing the duties that they were hired to perform. Id. at 413-14. very duty that he was hired to perform — providing security for the theater. Id. The Air Crash Disaster court recognized that neither Carter nor Turner relied explicitly on the doctrine of Similarly, in Turner v. Northwest General Hospital, 293 assumption of risk. The court found, however, that the N.W.2d 713 (Mich. Ct. App. 1980), which was relied on by rationale underlying those cases was the same rationale the district court below, a hospital hired a private security underlying the affirmative defense. In particular, the court company to provide security for invitees of the hospital. stated: The plaintiff’s decedent, an employee of the private security company, was shot and killed while on duty at the “. . . [it] is a term of the contract of employment, hospital. In rejecting the plaintiff’s wrongful death claim, express or implied from the circumstances of the the Turner court stated: employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the In this case, defendant hospital, recognizing a duty to servant’s duty shall be at the servant’s risk. In such safeguard, protect and secure its patients, visitors, cases the acquiescence of the servant in the conduct of doctors and other business invitees, hired an the master does not defeat a right of action on the independent security guard company for that purpose. ground that the servant causes or contributes to the What happened to plaintiff’s decedent was the very cause of the injury, but . . . no right of action arises in reason plaintiff’s decedent and his employer were favor of the servant at all, for, under the terms of the hired, i.e., to safeguard against criminal acts of employment, the master violates no legal duty to the violence. It would be ironic to hold defendant hospital servant in failing to protect him from dangers the risk liable to an employee of the very security guard of which he agreed expressly or impliedly to assume.” company it hired for protection. Air Crash Disaster, 737 F. Supp. at 413 (quoting Felgner, Id. at 715. 133 N.W.2d at 149 n.4) (alterations in original). Relying on both Carter and Turner, the court in In re Air Under the reasoning of Air Crash Disaster, Carter, and Crash Disaster at Detroit Metropolitan Airport on August Turner, which this Court hereby recognizes as an accurate

No. 01-2733 Hunley, et al. v. DuPont Automotive 19 20 Hunley, et al. v. DuPont Automotive No. 01-2733

statement of Michigan law, Hunley is prevented from provide security for DuPont, he assumed a general risk of recovering from DuPont for the harm he suffered while encountering and dealing with any and all stressful providing the head count to the fire brigade captain. Air situations relating to the plant’s security. Hunley cannot Crash Disaster, Carter, and Turner belie Hunley’s now recoup damages for harm that was allegedly caused by contention that the doctrine of assumption of risk applies performing the basic duty that he was hired to perform: only when the plaintiff was an employee of the defendant encountering a stressful situation relating to the plant’s and expressly contracted to assume the risk. In each of security. those cases, as here, the plaintiff was an employee of the independent security company that had been hired by the Accordingly, we AFFIRM the district court’s ruling on defendant to provide security services. Moreover, none of the alternative basis of assumption of risk. those cases required evidence of an express contractual assumption of risk for the doctrine to apply. Rather, in IV. CONCLUSION those cases, as here, the private security guards implicitly assumed certain risks based on the nature of the work that For all of the foregoing reasons, we AFFIRM the district they were hired to do. court’s ruling granting summary judgment to Defendant- Appellee. Thus, application of the doctrine of assumption of risk under these circumstances is proper, and the reasoning underlying that doctrine bars Plaintiffs-Appellants’ claim. Hunley was injured while he was performing one of the very tasks that he was hired to perform: providing a head count to the fire brigade captain. Although Hunley could not know the precise location where he would find the fire brigade captain at the time of the spill, it was nonetheless clear that carrying out the duty to deliver the head count necessarily involved encountering a stressful situation that imperiled the plant’s security. No matter where the fire brigade captain would be found, he would be dealing with the stress of a chemical spill — the very reason for the head count. Consequently, when Hunley was hired by Pinkerton and was provided with his Site Post Orders requiring him to deliver a head count in the event of a spill, he necessarily assumed the risk of encountering the stress related to such a spill. Moreover, we note that not just toxic spills, but nearly any situation that requires the presence and action of a security guard, by its nature, embodies a certain degree of stress. Thus, when Hunley was hired by Pinkerton to