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Leone v. BMI Refractory Services, Inc.

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

May 23, 2017

Filippo Leone, et al., Plaintiffs,
v.
BMI Refractory Services, Incorporated, Defendant.

          OPINION & ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Sean F. Cox United States District Court Judge

         Plaintiff and his wife brought this action against Defendant, asserting negligence and loss of consortium claims under Michigan law. Defendant is a contractor that was hired to perform work inside a degasser vessel at a steel plant owned by non-party AK Steel. Plaintiff, an employee of AK Steel, was injured while working inside that same vessel 21 days after the Defendant contractor finished its work, when a piece of slag fell on him. Plaintiff claims that the Defendant contractor was negligent for failing to remove slag from the interior of the vessel when it performed its earlier work. The matter is currently before the Court on Defendant's Motion for Summary Judgment. The motion was fully briefed by the parties and the Court heard oral argument on May 4, 2017. As explained below, the Court concludes that Defendant is entitled to summary judgment as to the negligence claim because Defendant owed Plaintiff no duty under Michigan law. In addition, because the loss of consortium claim is derivative of the negligence claim, Defendant is also entitled to summary judgment as to that claim. Accordingly, the Court shall GRANT summary judgment in favor of Defendant as to both counts.[1]

         BACKGROUND

         Plaintiffs Filippo Leone and Anna Leone filed this action against Defendant BMI Refractory Services, Inc. (“BMI”) on April 28, 2015, based upon diversity jurisdiction. Plaintiffs' Complaint alleges the following facts:

5. At a time presently unknown to the Plaintiffs, but known to the Defendant, the Defendant entered into a contract with A.K. Steel to provide maintenance services to A.K. Steel.
6. At a time prior to October 7, 2014, employees of the Defendant BMI undertook to remove the working lining brick and slag from a degassing vessel (“Subject Vessel”) located at A.K. Steel's Dearborn operations at the former Severstal Rouge Steel Plant, also formerly known as Ford Motor Company Rouge Steel.
7. On or about October 7, 2014 Plaintiff Filippo Leone, a employee of A.K. Steel, was installing new working layer brick in the Subject Vessel, when a piece of slag, castable, or debris broke loose from the wall lining material in the area at which the alloy chute connects to the body of the Subject Vessel.
8. The slag fell and struck Plaintiff on the back, causing serious back and knee injuries.

(Compl. at 2). Plaintiffs' Complaint asserts two counts: 1) a negligence claim against BMI based upon Filippo's injury; and 2) a loss of consortium claim on behalf of Anna.

         On July 16, 2015, this Court issued the original Scheduling Order (D.E. No. 11) in this matter, providing that discovery was to close on May 16, 2015. But the Court allowed the parties to extend the dates several times.

         On August 24, 2015, Defendant filed a Notice of Non-Party Fault (D.E. No. 12) stating that BMI “hereby gives notice pursuant to MCR 2.112(K)(2), MCL 600.2957 and MCL 600.6304 of its intent to seek an allocation of fault against” “Plaintiff's employer, AK Steel Corporation.” On December 22, 2016, Defendant timely filed a Motion for Summary Judgment. The motion has been fully briefed, including supplemental briefs that the Court allowed.

         This Court's practice guidelines, which are expressly included in the Scheduling Order issued in this case, provide, consistent with Fed.R.Civ.P. 56 (c) and (e), that:

a. The moving party's papers shall include a separate document entitled Statement of Material Facts Not in Dispute. The statement shall list in separately numbered paragraphs concise statements of each undisputed material fact, supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled Counter-Statement of Disputed Facts. The counter-statement shall list in separately numbered paragraphs following the order or the movant's statement, whether each of the facts asserted by the moving party is admitted or denied and shall also be supported by appropriate citations to the record. The Counter-Statement shall also include, in a separate section, a list of each issue of material fact as to which it is contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute shall be deemed admitted unless controverted in the Counter-Statement of Disputed Facts.

(Docket Entry No. 30 at 2-3).

         In compliance with this Court's guidelines, in support of its Motion for Summary Judgment, Defendant BMI filed a “Statement of Material Facts Not In Dispute” (D.E. No. 29) (“Defs.' Stmt.). In response to that submission, Plaintiffs filed a “Counter-Statement of Disputed Facts” (D.E. No. 33 at Pg ID 342-45) (Pl.'s Stmt.”), wherein Plaintiffs responded to the statements of fact asserted by BMI. Plaintiffs did not include an additional section containing additional facts with citations to record evidence, or a section containing material facts as to which they contend there is a genuine issue for trial.

         The following material facts are gleaned from the evidence submitted by the parties, viewed in the light most favorable to Plaintiffs, the non-moving party.

         This lawsuit asserts a negligence claim based on injuries sustained while Filippo was working for AK Steel on or about October 7, 2014, due to Defendant BMI's alleged negligence. (Def.'s & Pls.' Stmts. at ¶ 1).

         Plaintiffs' brief contains a helpful overview of how work is performed at steel plants, and a description of how a degasser functions. At the hearing, the Court confirmed with counsel that process was accurately described.

         AK Steel manufactures a variety of steel products. Much of the masonry work performed at a steel plant is performed in a vessel used for handling steel or other refractory metals. This means that the work is performed inside of steel ladles, degassers, and other similar vessels designed for handling high temperature molten metals, which require temperature resistant refractory materials. (Pls.' Br. at 2).

         A degassing vessel is a large cylinder used to hold molten steel. A schematic of the degassing vessel at issue here is attached at D.E. No. 33-7 at Pg ID 494. “It has several layers of refractory brick that form the walls and floor; there are two cavities in the bottom called snorkels, and an alloy chute on top that is used to pour molten steel into the vessel. Because of its shape, the mouth of the alloy chute (where the tube meets the large vessel) is made of a castable material that is poured into a mold.” (Pls.'s Br. at 3). “Slag” is a term used to refer to the build up of scrap metal and concrete that accumulates on the face of these vessels with repeated usage. (Pls.' Br. at 4; Pl.'s Dep. at 170).

         BMI regularly performed work at AK Steel, including the tear out and rebuilding of refractory brick in AK Steel degasser vessels. (Def.'s Stmt. at ¶ 2; Pls.' Stmt. at ¶ 2).

         The invoice for the work states that the work was performed on September 16, 2014 and describes the work as “Tear out face brick at Degasser Vessel.” (D.E. No. 33-7 at Pg ID 502). The purchase order for this work provides no details regarding the work to be performed. (Def.'s Stmt. at ¶ 2; Pls.' Stmt. at ¶ 2; Def.'s Ex. 2). It is undisputed that there are no written AK Steel procedures or guidelines to be followed for the degasser brick tear outs. (Def.'s & Pls.' Stmts. at ¶ 3).

         On September 16, 2014, a four-man BMI crew conducted the tear out of the degasser vessel face refractory brick pursuant to the verbal instructions of AK Steel Refractory Supervisor James Boggs (“Boggs”). (Def.'s & Pls.' Stmts. at ¶ 3). Construing the evidence in the light most favorable to Plaintiffs, AK Steel instructed BMI to: 1) leave the alloy cute in place; 2) tear out the brick face; and 3) tear out the hot face of the alloy chute. (Boggs Dep. at 14-15 & 18-21). The work performed by BMI at AK Steel was performed on a single day, September 16, 2014. A BMI crew of four men worked on the project: Harold Jackson, Dustin Sinclair, Chris Martin, and Oscar Lopez. (Jackson Dep. at 10). Lopez was acting as the confined space attendant on this job. (Jackson Dep. at 10). Jackson and Martin went into the degasser and did the tear out. (Jackson Dep. at 10).

         It is undisputed that BMI performed the tear out of the degasser face brick “from top to bottom and that BMI personnel checked the face brick during the tear out for loose slag ‘so as not to endanger BMI or other workers.'” (Pls.' Stmt. at ¶ 4). Jackson testified that “[w]hen you first go inside, you've got to make sure there's nothing overhead that's going to fall on you and hurt you.” (Jackson Dep. at 10).

         During his deposition, Jackson described the general process of how the interior of a degasser is typically inspected by BMI before the BMI crew begins the tearing out of the bricks. After setting up lights to illuminate the interior of the degasser, it is visually inspected. (Id. at 14). “Once everything is lit and ready, we go in there and check, go from top to bottom, to check to make sure there's nothing loose overhead and make sure nothing's going to fall on us.” (Id.). Jackson testified that when they do see loose pieces they knock them off so that they fall to the bottom. (Id. at 22). Jackson further testified:

Q. Okay. And then the next thing is you check it top to bottom, what do you do when you're checking it top to bottom?
A. You're checking to make sure there's no loose brick, no loose slag, to make sure there's nothing loose that could fall on you.
Q. Take me through mechanically the actual physical process of doing that, what are you doing?
A. You get close to the brick, you can grab it or you poke it with a bar or something.
Q. You use - how do you get in there, you use ...

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