Detrick v. Heidtman Steel Prods., Inc., 16-1002

CHADWICK DETRICK, Plaintiff-Appellant, v. HEIDTMAN STEEL PRODUCTS, INC., Defendant-Appellee.

No. 16-1002

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

January 25, 2017

NOT RECOMMENDED FOR PUBLICATION

File Name: 17a0063n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: COLE, Chief Judge; COOK and WHITE, Circuit Judges.

HELENE N. WHITE, Circuit Judge. Plaintiff Chadwick Detrick appeals the district court's grant of summary judgment to Defendant Heidtman Steel Products, Inc. ("Heidtman"), in Detrick's action arising from injuries he suffered when he fell through the drywall floor of an attic he was repairing at one of Heidtman's plants. We AFFIRM.

I. Background

As early as 2007, Heidtman, a steel manufacturer with facilities in Ohio, Indiana, Illinois, and Michigan, hired JD Construction Enterprises, LLC ("JD"), an independent contractor, to perform various maintenance and installation projects at its facilities. Detrick began working for JD in the spring of 2010, left for personal reasons after 12 weeks, and was rehired in May of 2011. During the entirety of his tenure with JD, Detrick worked on-site at Heidtman's Erie, Michigan location.

In September 2011, an exhaust fan short-circuited and caused a small fire in the attic of one of Heidtman's buildings. Due to its combustible properties, Heidtman decided to replace the cellulose insulation in the damaged attic with fire-resistant fiberglass insulation. Heidtman hired JD to repair the ceiling damage caused by the fire and to remove the cellulose insulation from the attic. On September 29, 2011, Detrick and Brent Davis, another JD employee, were assigned to remove the insulation from the attic. Their supervisor was JD employee Adam Seeburger. A third worker, Donald Schmidt, also a JD employee, was added to their team on September 30. JD did not rely on Heidtman to provide safety measures or equipment to its employees, Heidtman did not control the method and means of JD's maintenance work in the attic, and JD determined the supplies needed, timing of the project, and staffing.

The task involved using shovels and a Shop-Vac to remove the cellulose insulation and place it into large bags. To accomplish this, the workers stood on the joists that ran across the attic floor. The joists were approximately two or three feet apart from each other. The workers were instructed not to step on the drywall floor that ran between the joists.

Certain aspects of the attic are undisputed. There appears to be agreement that there was nothing unusual about this attic as compared to other attics. Witnesses also agree that there were cords strung throughout the attic that the workers had to step over while carrying bags of insulation. Detrick alleges that there were "an awful lot of nails" protruding from the ceiling and the wooden beams the workers used as handholds.¹ Additionally, Detrick testified that initially the workers only had headlamps and one flashlight. Later during the first day, September 29, Seeburger provided a floodlight, but only one of its bulbs was working—Detrick stated that they had "trouble with the lighting" that day. R. 47-2, PID 837. However, by the second day—the day of Detrick's fall—Seeburger had fixed the floodlight so both of its bulbs were functioning.

Davis recalled masks and gloves being provided to the workers. Detrick recalled asking Seeburger for a hard hat but none was provided. Detrick also testified that Seeburger told Detrick that he had discussed getting safety harnesses for the workers with Heidtman but was unable to as they were in use elsewhere at the Erie location. Seeburger, however, testified that he did not "have any direct contact with anybody from Heidtman Steel" with regard to the work being done on the property in 2011, and that all contact with JD was done through David Garno, the managing employee of JD. R. 32-7, PID 266. Seeburger also testified that the equipment used to clean out the attic was provided by JD, that he believed that safety harnesses were inappropriate for the work being done, and that he never discussed using safety harnesses at the site. Garno testified that he did not believe that safety harnesses were required for repairing the attic.²

On the day of the accident, Detrick was attempting to carry two bags of insulation out of the attic when he was confronted by a waist-high electrical cord strung in his path. Detrick set the bags down on the other side of the cord before attempting to step over it. After putting the bags down, Detrick's foot slipped off the joist he was standing on. Detrick then fell through the attic floor and landed on the concrete floor of the room below. Detrick estimated he fell about fifteen to twenty-five feet.

As a result of the fall, Detrick suffered a severely comminuted intra-articular left calcaneus fracture, a head laceration, and a concussion. Through workman's compensation, Detrick's medical bills have been paid for and he also receives $385.80 every two weeks.In December 2013, Detrick filed suit in the Eastern District of Michigan against Heidtman for damages, alleging premises liability, nuisance per se, and nuisance in fact.

Heidtman moved for summary judgment on Detrick's claims. Detrick's response to Heidtman's motion for summary judgment included a statement that he would be "filing a concurrent motion to amend the complaint to allege counts in negligence and the law of inherently dangerous activity" against Heidtman. R. 47, PID 809. Detrick never filed the motion requesting leave to amend his complaint, but the district court construed his response to Heidtman's motion for summary judgment as such a request. The district court denied Detrick leave to amend his complaint on the grounds of undue delay and legal futility. Finding the dangers in the attic to be open and obvious and devoid of any uniquely dangerous "special aspects," the district court granted Heidtman's motion for summary judgment. The district court also found that the work in the attic was not inherently dangerous, and that the attic did not constitute a public or private nuisance.

II. Analysis

Detrick challenges the district court's grant of summary judgment and argues that (1) the danger of working in the attic was not an open and obvious condition of the premises, and that, even if it was, its uniquely dangerous character satisfied the special aspects exception; and (2) that Heidtman is liable under the inherently dangerous activity doctrine because it did not "carefully select" JD to perform the attic work. However, Detrick does not challenge the district court's denial of his request for leave to amend on the grounds that it was unduly delayed, a threshold inquiry to his inherently dangerous activity claim.

A. Standard of Review

We review a district court's grant of summary judgment de novo. Dixon v. Univ. of Toledo, 702 F.3d 269, 273 (6th Cir. 2012). "Summary judgment is appropriate if there is nogenuine issue of material fact and the movant is entitled to judgment as a matter of law." Ondo v. City of Cleveland, 795 F.3d 597, 603 (6th Cir. 2015). "We review the evidence and draw all inferences in the light most favorable to the nonmoving party." Dixon, 702 F.3d at 273.

A district court's denial of a motion for leave to amend a complaint is generally reviewed for abuse of discretion. See Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002). "Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment." Benzon v. Morgan Stanley Distributors, Inc., 420 F.3d 598, 605 (6th Cir. 2005) (internal quotation marks omitted). "When, however, the district court denies the motion to amend on grounds that the amendment would be futile, we review denial of the motion de novo." Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002). The futility analysis is equivalent to determining whether the claims sought to be alleged in the amended complaint could have withstood a 12(b)(6) motion to dismiss. Herhold v. Green Tree Servicing, LLC, 608 F. App'x 328, 331 (6th Cir. 2015).

B. Detrick's Premises Liability Claims

1. Whether the condition of the attic was open and obvious

To prove a claim of premises liability under Michigan law, a plaintiff must show that there was "(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages." Dybek v. Fedex Trade Networks Transport & Brokerage, Inc., 997 F. Supp. 2d 767, 771 (E.D. Mich. 2014). The standard of care owed to a visitor depends on whether that visitor was a trespasser, a licensee, or an invitee. See Stitt v. Holland Abundant Life Fellowship, 614 N.W.2d 88, 91 (Mich. 2000). "An invitee is a person who enters the land of another on an invitation that carries with it an implication that the owner has taken reasonable care to prepare the premises and to make them safe." Hughes v. PMG Bldg., Inc., 574 N.W.2d691, 695 (Mich. App. 1997). "The landowner has a duty of care, not only to warn the invitee of any known dangers, but the additional obligation to also make the premises safe[.] . . . Thus, an invitee is entitled to the highest level of protection under premises liability law." Stitt, 614 N.W.2d at 92 (citation omitted). Michigan law generally considers the employees of independent contractors to be invitees. See Hughes, 574 N.W.2d at 695.

"[T]he general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers, but, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk." Lugo v. Ameritech Corp., 629 N.W.2d 384, 386 (Mich. 2001). Michigan courts focus on the "objective nature of the condition of the premises at issue" in deciding whether a condition is open and obvious. Id. at 524. "Whether a danger is open and obvious depends...