United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
F. Cox United States District Court Judge
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.
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
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.
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.
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.
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).
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.
following material facts are gleaned from the evidence
submitted by the parties, viewed in the light most favorable
to Plaintiffs, the non-moving party.
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).
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.
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).
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).
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
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).
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).
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
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
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 ...