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Spencer v. Dte Electric Co.

United States District Court, E.D. Michigan, Southern Division

January 17, 2017

STEWART SPENCER and SHANNON SPENCER, Plaintiffs,
v.
DTE ELECTRIC COMPANY, et al., Defendants. and EMPLOYERS INSURANCE OF WAUSAU, Intervening Plaintiff,

         At a session of said Court, held in the U.S. Courthouse, Detroit, Michigan on January 17, 2017

          PRESENT Honorable Gerald E. Rosen United States District Judge.

          OPINION AND ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT

          Gerald E. Rosen United States District Judge.

         I. INTRODUCTION

         Plaintiffs Stewart Spencer and Shannon Spencer commenced this action in this Court on April 20, 2015, asserting state-law claims of negligence against Defendant DTE Electric Company and affiliated entities (collectively “DTE”) arising from Mr. Spencer's injury in an October 1, 2012 workplace accident at DTE's Belle River Power Plant.[1] After DTE filed a notice indicating that FR Brand Holdings, Inc. and other related entities (collectively “Brand”) might be at least partly responsible for causing Plaintiff's injury, Plaintiff filed a first amended complaint on September 25, 2015 naming Brand as an additional Defendant.[2] This Court's subject matter jurisdiction over this matter rests upon the diverse citizenship of the parties. See 28 U.S.C. § 1332(a).

         Three summary judgment motions presently are pending before the Court. First, Defendant Brand argues that the record fails to give rise to any legal duty it owed Plaintiff at the time of his workplace accident, where Plaintiff's injuries, in Brand's view, arose from a condition at DTE's power plant rather than any act of negligence by Brand. It follows, according to Brand, that Plaintiff's claims are governed by premises liability law, and that such claims may be brought only against a party that has possession and control of the premises.

         Next, Plaintiff has filed a motion for partial summary judgment, seeking a ruling as a matter of law that DTE retained sufficient control over the work site where Plaintiff sustained his injury to be held liable for this injury. DTE, for its part, seeks an award of summary judgment in its favor on the ground that it did not, as a matter of law, retain sufficient control over the work site to be held liable under Michigan law for the injury sustained by Plaintiff at this site. Alternatively, DTE suggests that Brand is correct in asserting that Plaintiff's claims sound in premises liability, and it argues that the condition at its plant that gave rise to Plaintiff's injury was both open and obvious and located in an area that Plaintiff lacked permission or authority to enter.

         These three motions have been fully briefed by the parties. Having reviewed the parties' briefs and accompanying exhibits, as well as the remainder of the record, the Court finds that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide the parties' motions “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. This opinion sets forth the Court's rulings on these motions.

         II. FACTUAL BACKGROUND

         A. The Parties

         At the time of the accident giving rise to this suit, Plaintiff Stewart Spencer was an employee of non-party Monarch Welding & Engineering, Inc. (“Monarch”). In the fall of 2012, Monarch was retained by Defendant DTE to perform scheduled maintenance on an air heater - specifically, the Unit Two West Primary Air Heater (“WPAH”) - at DTE's Belle River Power Plant in East China Township, Michigan. In connection with this project, DTE contracted with Defendant Brand to place plywood decking over open areas within the WPAH so that workers could perform maintenance on the air heater without falling through these gaps.

         B. The Maintenance Work on the WPAH

         The WPAH consists generally of upper and lower chambers separated by a circular heating surface called a “stator.” (See DTE's Motion, Ex. A, Photograph of WPAH; Ex. B, Descriptive drawings of WPAH.) Cold air is forced into the lower chamber of the unit (the “L-WPAH”) and blown by a large rotating hood through the stator, and the resulting warm air is then blown out of the upper chamber (the “U-WPAH”) by another large rotating hood. The stator is approximately 37 feet in diameter, and is comprised of a series of concentric steel rings intersected by steel strengthening plates. A number of metal radiators (known as “baskets”) are fitted into the grid system formed by the intersecting steel components of the stator, so as to completely fill in the stator and make one large radiator to heat the air as it passes through the stator. (See DTE's Motion, Ex. C, Photo from inside the U-WPAH depicting baskets.)

         Over several years of operation, the baskets in the WPAH get clogged with ash and must be replaced. As the old baskets are removed, DTE engineers inspect the stator to look for cracks in the welded joints where its steel components intersect, and any such cracks are repaired before the new baskets are installed. During the time between the removal of the old baskets and the installation of the new ones, there are gaps in the grid work of the stator. In the course of the maintenance work giving rise to this suit, DTE retained Brand to place plywood decking over the grid work so that workers could access the U-WPAH without falling into these voids.

         C. Plaintiff's Injury While Performing Maintenance on the WPAH

         In the fall of 2012, DTE entered into a contract with Monarch to perform maintenance work on the WPAH. As part of this project, Plaintiff and his co-workers at Monarch spent about three weeks removing the old baskets from the stator. Plaintiff testified that this work was completed by Friday, September 28, and that he and his co-workers spent their shift on Saturday, September 29 removing their tools and picking up scrap metal so that DTE could inspect the stator the following day and determine which parts of this steel structure were in need of repair. (See Brand's Motion, Ex. A, Plaintiff Stewart Spencer's Dep. at 59-62.)

         According to Plaintiff, wood decking was in place to cover the gaps in the stator's grid work as he and his co-workers completed their clean-up work on September 29, but he saw Brand employees begin to remove this wood from the U-WPAH as he ended his shift that day. (See Id. at 62-63, 66-67.) Monarch's field superintendent for the DTE project, Richard Castle, explained that this wooden platform had to be removed in order for DTE to inspect the stator, because DTE had to rotate the hood in the upper chamber of the air heater during its inspection and this rotation could not be done with the platform in place. (See DTE's Motion, Ex. D, Castle 3/25/2016 Dep. at 55; see also Brand's Motion, Ex. E, Quaine Dep. at 123-24; Plaintiff's Dep. at ...


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