Spencer et al v. DTE Energy Company et al

Filing 113

OPINION and ORDER Regarding 94 , 96 , 99 Motions for Summary Judgment. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEWART SPENCER and
SHANNON SPENCER,
Plaintiffs,

Case No. 15-11421
Hon. Gerald E. Rosen

- and EMPLOYERS INSURANCE OF
WAUSAU,
Intervening Plaintiff,
v.
DTE ELECTRIC COMPANY, et al.,
Defendants.
____________________________________/
OPINION AND ORDER REGARDING
MOTIONS FOR SUMMARY JUDGMENT
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
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

1

Plaintiff Shannon Spencer seeks to recover only under a loss of consortium
theory, and her claim is entirely derivative of and contingent upon the claims asserted by
her husband, Plaintiff Stewart Spencer. Accordingly, for ease of reference, the Court will
refer to Mr. Spencer as the sole “Plaintiff” throughout the remainder of this opinion.
2

In addition, by order dated October 6, 2015, Employers Insurance of Wausau was
granted leave to intervene in this action, on the ground that it had paid workers’
compensation benefits to Plaintiff on behalf of his employer and thus claimed a workers’
compensation lien against any recovery secured by Plaintiff in this suit. Again, because
the claim of this intervening plaintiff is wholly contingent upon Plaintiff’s recovery, the
Court need not separately address this insurer or its claim in the remainder of this opinion.
2

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
3

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
4

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 coworkers at Monarch spent about three weeks removing the old baskets from the
5

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 219-20.) Following this September
30 inspection, DTE provided Monarch with a list of repairs to be done to the
stator. (See Brand’s Motion, Ex. J, Bazzi Dep. at 61-62; Ex. H, Castle 9/23/2015
Dep. at 38-39.)
6

When Plaintiff returned to work for his evening shift on Monday, October 1,
2012, the wooden platform in the U-WPAH had not been replaced and the gaps in
the stator’s grid work remained uncovered by wood decking. (See Plaintiff’s Dep.
at 66.) He and his co-workers began working in the L-WPAH to install a new
alignment bar system when they discovered that some of the stator plates had
broken loose and posed a hazard of falling down on the workers, and a Monarch
co-worker asked Plaintiff to retrieve a piece of equipment known as a chain fall so
that the workers could pull these plates back into place. (See id. at 69.)
Plaintiff recalled that there was a chain fall hanging in the U-WPAH, so he
went upstairs to retrieve it. (See id. at 70-71.)3 Because the wood decking had
been removed from the U-WPAH, yellow caution tape had been strung across the
access point for gaining entry to this upper chamber, and there was a tag hanging
from this tape warning of a falling hazard beyond that point. (See Plaintiff’s Dep.
at 73-74.)4 To account for this falling hazard, Plaintiff wore a safety harness and
3

Plaintiff testified that to his knowledge, this was the only chain fall available to
him at the time. (See id. at 70, 213.) Richard Castle testified, in contrast, that a number
of chain falls were kept in gang boxes located on both the east and west sides of the air
heater deck. (See Castle 3/25/2016 Dep. at 81.)
4

Mr. Castle testified that this tag also would have listed the names and phone
numbers of individuals, including himself, who should be contacted before a worker
entered the confined space beyond the yellow tape. (See Castle 3/25/2016 Dep. at 77,
80.) Plaintiff, in contrast, stated that he could not recall seeing any such contact
information on the tag. (See Plaintiff’s Dep. at 73-74.) Plaintiff further testified that
7

attached a retractable lanyard — also referred to as a yo-yo — between the harness
and an anchor point on the wall just inside the access point that would catch him
in the event of a fall. (See id. at 74-76.)5
Because there was no wood decking in the U-WPAH, Plaintiff had to walk
along the top edges of the stator’s metal grid work in order to reach the chain fall,
and he estimated that these metal edges were approximately a half inch thick. (See
id. at 79-80, 234-35.) As Plaintiff traversed this path of narrow metal edges, he
lost his balance and fell down into one of the gaps in the grid work. (See id. at
81.)6 As he fell into this gap, his armpit caught the top edge of one of the plates
that formed the walls of the gap, causing his arm to jerk above his head and
injuring his shoulder in the process. (See id. at 81-82.) Plaintiff managed to pull

because he and his Monarch co-workers had strung the caution tape across the access
point to the U-WPAH and placed a tag on this tape, there was no need for him or any
other member of the Monarch work crew to obtain permission before proceeding through
the access point and into the U-WPAH. (See id. at 112, 114, 116.)
5

Plaintiff testified that he used this same fall protection gear while working in the
L-WPAH. (See id. at 199.) Although there was a wooden work platform in this lower
chamber, Plaintiff explained that there were “open holes all around it,” and thus a “big
fall potential” in this area as well. (Id. at 199-200.)
6

One investigative report of this incident states that Plaintiff lost his balance when
the self-retracting lanyard he was wearing “locked up.” (See Plaintiff’s Motion, Ex. 7,
DTE Lost Time Accident Report.) Plaintiff disputed this conclusion, however, opining
that the lanyard operated properly and that he “just lost [his] balance.” (Plaintiff’s Dep. at
82, 255, 259.)
8

himself up out of the gap, and a co-worker eventually drove him to a nearby
hospital for treatment.
In Plaintiff’s view, his fall and injury were directly attributable to (i) the
decision to remove the wood decking from the U-WPAH, and (ii) more
importantly, the failure to replace this decking after DTE conducted its September
30, 2012 inspection and before Plaintiff and his Monarch co-workers returned to
the work site the next day. (See id. at 255-56.) Monarch’s field superintendent,
Mr. Castle, apportioned the blame differently, opining that Plaintiff was “not
permitted” to cross the yellow-tape barrier and enter the U-WPAH on October 1,
2012 because this area “wasn’t in the proper condition” for entry and “the proper
safety mechanisms weren’t in place” to authorize entry. (Castle 3/25/2016 Dep. at
62.)7 Mr. Castle also did not share Plaintiff’s view that wood decking should have
been installed in the U-WPAH promptly after DTE’s inspection, testifying (i) that

7

As noted earlier, Mr. Castle testified that a tag on the yellow tape blocking entry
into the U-WPAH listed names and phone numbers of supervisors, including himself,
who should be contacted before a worker entered the area beyond the tape. (See id. at 6263, 80.) He further testified that if Plaintiff wished to enter this area, proper procedure
dictated that he contact one of the supervisors identified on this list, so that this supervisor
could “go through the normal operating procedures” for allowing entry to this confined
space, including air monitoring and identifying and eliminating hazards to entry. (Id. at
80, 82.) More specifically, if Plaintiff had asked him for permission to enter the UWPAH to retrieve a chain fall, Mr. Castle stated that he would have advised Plaintiff to
“check the gang boxes” for a chain fall, rather than attempting to retrieve one from the UWPAH. (Id. at 81.)
9

there was no need for this decking because Monarch’s scheduled repair work
immediately following DTE’s inspection could all be performed from the LWPAH, (ii) that it would be unsafe for work to be done simultaneously in the UWPAH and L-WPAH, since the workers in the lower chamber would have “no
overhead protection” from falling objects, and (iii) that if welding was being done
in the L-WPAH, wood decking in the U-WPAH would prevent proper air flow and
pose a danger of smoke build-up in the work area. (Id. at 83-84, 89-91.)
III. ANALYSIS
A.

The Standards Governing the Parties’ Motions
Through the present motions, Plaintiff and Defendants DTE and Brand each

seek an award of summary judgment in their favor on one or more of the claims
asserted by Plaintiff against Defendants. Under the pertinent Federal Rule
governing these motions, summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). As the Supreme Court has
explained, “the plain language of Rule 56[] mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial.”
10

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).
To the extent that a party — here, Plaintiff — seeks an award of summary
judgment in its favor on an issue as to which that party bears the burden of proof,
the moving party’s “showing must be sufficient for the court to hold that no
reasonable trier of fact could find other than for the moving party.” Calderone v.
United States, 799 F.2d 254, 259 (6th Cir. 1986) (internal quotation marks,
citation, and emphasis omitted). Regardless of the allocation of the burden of
proof, the central issue under Rule 56 is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512 (1986).
In deciding a motion brought under Rule 56, the Court must view the
evidence “in a light most favorable to the party opposing the motion, giving that
party the benefit of all reasonable inferences.” Smith Wholesale Co. v. R.J.
Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007). Yet, the nonmoving
party may not rely on bare allegations or denials, but instead must support a claim
of disputed facts by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, or other
11

materials.” Fed. R. Civ. P. 56(c)(1)(A). Moreover, any supporting or opposing
affidavits “must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Finally, “[a] mere scintilla
of evidence is insufficient” to withstand a summary judgment motion; rather,
“there must be evidence on which the jury could reasonably find for the nonmoving party.” Smith Wholesale, 477 F.3d at 861 (internal quotation marks and
citation omitted).
B.

Plaintiff’s Claims Are Governed by the Michigan Law of Premises
Liability, and Are Barred by the Open and Obvious Nature of the
Dangerous Condition That Led to His Injury.
In his first amended complaint, Plaintiff has advanced two theories of

recovery against Defendant DTE: (i) that his injury is attributable to DTE’s active
negligence, and (ii) that DTE is liable for the acts of independent contractors
working at its power plant due to its retention of control over the work of these
contractors and its negligent failure to take reasonable steps to guard against the
dangers faced by these contractors in common work areas. In addition to these
claims against DTE, Plaintiff alleges that Defendant Brand’s active negligence
was a proximate cause of his injury. As one of the principal grounds for seeking
an award of summary judgment in its favor, Defendant Brand argues that
12

Plaintiff’s claims of negligence should be viewed as governed by the Michigan
law of premises liability. If so, Brand suggests that it cannot be held liable
because it did not have possession or control of the premises where Plaintiff
sustained his injury, and because the falling hazard that led to Plaintiff’s injury
was open and obvious. Defendant DTE makes a similar appeal to premises
liability law in its motion, albeit only as a fallback to other arguments, contending
that Plaintiff became a mere trespasser to whom no duty was owed when he
entered the U-WPAH without authorization, and that the danger he faced upon
entering this area was open and obvious. As discussed below, the Court agrees
that Plaintiff’s claims are defeated on these grounds.
As an employee of a contractor (Monarch) retained by the owner of the
premises (DTE) to perform scheduled maintenance on an air heater, Plaintiff is
properly characterized as an “invitee” under Michigan’s premises liability law.
See Perkoviq v. Delcor Homes — Lake Shore Pointe, Ltd., 466 Mich. 11, 643
N.W.2d 212, 214 (2002); see generally Stitt v. Holland Abundant Life Fellowship,
462 Mich. 591, 614 N.W.2d 88, 91-92 (2000) (describing the “three common-law
categories for persons who enter upon the land or premises of another: (1)
trespasser, (2) licensee, [and] (3) invitee”). Accordingly, as the premises owner,
DTE owed Plaintiff a duty “to exercise reasonable care to protect invitees from an
13

unreasonable risk of harm caused by a dangerous condition of the land that the
landowner knows or should know the invitees will not discover, realize, or protect
themselves against.” Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d
185, 186 (1995) (internal quotation marks and citations omitted).
To be sure, the claims asserted by Plaintiff against Defendants DTE and
Brand do not purport to rest upon these standards of premises liability or the duty
owed to Plaintiff as an invitee. Rather, Plaintiff insists that his claims should be
analyzed under ordinary negligence principles. As the Michigan Court of Appeals
recently emphasized, “Michigan law distinguishes between claims arising from
ordinary negligence and claims premised on a condition of the land.” Buhalis v.
Trinity Continuing Care Services, 296 Mich. App. 685, 822 N.W.2d 254, 258
(2012). It follows, in Plaintiff’s view, that the Court need not entertain
Defendants’ bid to defeat a theory of liability that he has never pled.
Yet, while Plaintiff correctly notes the absence of claims or allegations in
his complaint indicating that he is pursuing a theory of premises liability, the
Court is “not bound by the labels that parties attach to their claims,” but instead
must determine “the gravamen of [this] action” by “reading the complaint as a
whole, and by looking beyond mere procedural labels to determine the exact
nature of [Plaintiff’s] claim[s].” Buhalis, 822 N.W.2d at 258 (internal quotation
14

marks and citations omitted). In particular, “[i]f the plaintiff’s injury arose from
an allegedly dangerous condition on the land, the action sounds in premises
liability rather than ordinary negligence,” and this remains “true even when the
plaintiff alleges that the premises possessor created the condition giving rise to the
plaintiff’s injury.” Buhalis, 822 N.W.2d at 258; see also Kachudas v. Invaders
Self Auto Wash, Inc., 486 Mich. 913, 781 N.W.2d 806 (2010) (holding that
because “the plaintiff in this case is alleging injury by a condition of the land, . . .
his claim sounds exclusively in premises liability”); James v. Alberts, 464 Mich.
12, 626 N.W.2d 158, 162 (2001) (explaining that “the present case is a premises
liability action” in light of the plaintiff’s claim “that he was injured by a condition
of the land”).
Although Plaintiff seeks to attribute his workplace accident to the negligent
acts or omissions of one or both Defendants,8 it nonetheless is clear that his injury
was caused by an allegedly dangerous condition in DTE’s power plant — namely,
the gaps in the grid work of the stator that he was attempting to traverse when he
lost his balance and fell. To be sure, Plaintiff maintains that this dangerous

8

Notably, in his own deposition testimony, Plaintiff was unable to identify any
negligent act or omission by Defendant Brand. To the contrary, he expressly testified that
he did not believe “Brand did anything wrong at all,” and that the fault should lie with
“[w]hoever ordered the decking to be removed” from the U-WPAH, which he believed to
be DTE. (Plaintiff’s Dep. at 222, 286-88.)
15

condition was created as a result of Defendants’ negligent decision not to reinstall
wood decking on the surface of the stator following DTE’s inspection of the air
heater. The Michigan courts have repeatedly emphasized, however, that an
allegation that the defendant caused or created the dangerous condition at issue
does not “transform [a premises liability] claim into one for ordinary negligence.”
Buhalis, 822 N.W.2d at 258; see also Compau v. Pioneer Resource Co., LLC, 498
Mich. 928, 871 N.W.2d 210 (2015) (“When a plaintiff’s injury arises from an
allegedly dangerous condition on the land, the action sounds in premises liability
rather than ordinary negligence, even when the plaintiff alleges that the premises
possessor created the condition giving rise to the plaintiff[’]s injury.”); Jahnke v.
Allen, 308 Mich. App. 472, 865 N.W.2d 49, 51-52 (2014). Consequently, even
accepting that Defendants could have mitigated the falling hazard posed by the
openings in the surface of the stator and the narrowness of the grid work that
Plaintiff attempted to traverse in the absence of wood decking, it nonetheless is
true that Plaintiff fell as a result of this hazardous condition, and not due to any
activity in which either Defendant was engaged at the time of his fall. See James,
626 N.W.2d at 162 (finding that the plaintiff’s claim was governed by premises
liability law because, although the plaintiff’s injury occurred while he and the
defendant were digging a trench, the plaintiff “contend[ed] that [this injury] arose
16

out of a condition of the land, not out of the activity itself”).
The pertinent case law confirms this conclusion that Plaintiff’s claims in
this case sound in premises liability rather than ordinary negligence. In Jahnke,
865 N.W.2d at 50, for instance, the plaintiff resided in a mobile home adjacent to
the defendant’s home, and the defendant was the plaintiff’s landlord. The
defendant had begun a landscaping project at his home with the help of the
plaintiff and others, and the plaintiff was injured when she accompanied the
defendant in returning home from a social visit to her residence and slipped on
concrete pavers that had been dislodged and relocated in the landscaping project.
The plaintiff asserted a claim of negligence against the defendant, but the trial
court held that this claim was governed by premises liability law and was barred
by the open and obvious doctrine.
The plaintiff argued on appeal that her claim of negligence was properly
grounded in the defendant’s negligent act — i.e., the allegedly negligent manner in
which he “escorted [the] plaintiff across [his] property” — but the Michigan Court
of Appeals affirmed the trial court’s decision that the “plaintiff’s injury occurred
because of a condition on the land, the removed concrete pavers, rather than [the]
defendant’s conduct.” Jahnke, 865 N.W.2d at 52. Although the court recognized
that the “defendant may have created the condition on the land” through his
17

allegedly negligent actions, it found that this “d[id] not transform the premises
liability action into one alleging ordinary negligence.” 865 N.W.2d at 52.
Similarly, in Hall v. IKEA Property Inc., 171 F. Supp.3d 634, 637-38 (E.D.
Mich. 2016), the plaintiff was injured as he was carrying a mirror from the
defendant retailer’s loading dock onto a delivery truck and slipped on a metal plate
used to bridge the gap between the loading dock and the back of the truck. The
plaintiff alleged that this accident “never would have occurred” if defendant IKEA
had provided a metal loading plate that was sufficient in size to cover the entire
gap between the loading dock and the truck, and he asserted a claim of ordinary
negligence against IKEA based on the retailer’s decision to “provide[] [him] with
an undersized docking plate” despite its knowledge “of the potentially dangerous
outcomes that might result.” Hall, 171 F. Supp.3d at 638-39.
While the court recognized that “a claim under a premises liability theory
does not preclude a separate claim grounded on an independent theory of liability
based on the defendant’s conduct,” it nonetheless concluded that the plaintiff
could pursue only the former theory of recovery. 171 F. Supp. 3d at 640 (internal
quotation marks and citation omitted). In so holding, the court reasoned that the
plaintiff’s injury “arose from [an] allegedly dangerous condition on the land” —
namely, a “purportedly undersized loading dock plate” — and that IKEA’s
18

creation of this condition did not “change the fact that the claim sounds solely in
premises liability.” 171 F. Supp.3d at 640. The court further explained that the
plaintiff had not identified “overt and affirmative conduct” by IKEA, beyond its
creation of an allegedly hazardous condition on its property, that might “support a
claim for ordinary negligence separate from a premises liability claim.” 171 F.
Supp.3d at 640; see also England v. Meijer, Inc., No. 322065, 2015 WL 6161735,
at *4 (Mich. Ct. App. Oct. 20, 2015) (distinguishing an earlier case in which a
defendant’s “overt conduct” in “operating and controlling [a] tractor” on his
premises gave rise to a “separate duty to use ordinary care,” and thus “support[ed]
a claim for ordinary negligence in addition to a premises liability claim”); Ealey v.
Rockford Construction Co., No. 13-cv-802, 2015 WL 1459228, at *3 (W.D. Mich.
March 30, 2015) (collecting cases under Michigan law “in which the courts have
found the claims to sound in premises liability rather than ordinary negligence”).
As in these other cases, Plaintiff’s injury here is attributable to a dangerous
condition at DTE’s power plant — namely, the stator’s grid work that posed a
falling hazard due to gaps in the grid and the narrow metal surfaces that, in the
absence of wood decking, were the only means of traversing this grid. Although
Plaintiff contends that DTE created this hazard through the breach of a duty to
“provide[] safe ingress/egress into the air heater’s confined space” so that Plaintiff
19

and his Monarch co-workers could safely perform maintenance work on the air
heater, (see Plaintiffs’ Response to DTE’s Motion at 3), the law is clear that a
defendant property owner’s creation of a dangerous condition on its premises does
not transform a premises liability claim “into one for ordinary negligence.”
Buhalis, 822 N.W.2d at 258; see also Compau, 871 N.W.2d at 210.
Moreover, while Plaintiff alleges in his complaint that DTE violated a host
of workplace rules and regulations as it allowed outside workers onto its premises
to perform maintenance work, he has not forged any sort of causal link between
these alleged violations and his injury. Rather, it is clear, both from Plaintiff’s
own testimony and the record as a whole, that the specific, allegedly negligent act
(or omission) that led to this injury was Defendants’ failure to replace the wood
decking on the stator’s grid work in order to prevent the falling hazard otherwise
faced by workers who entered the upper chamber of the air heater. Because this
alleged negligence created a dangerous condition in DTE’s plant, and did not
constitute affirmative, overt conduct giving rise to a separate duty of due care,
Plaintiff is limited to a premises liability theory of recovery, and may not pursue a
claim of ordinary negligence.
In light of this conclusion, Defendants may appeal to the “open and

20

obvious” doctrine as defeating any recovery under a theory of premises liability.9
As recognized by the Michigan courts, while property owners “have a duty to
exercise reasonable care in protecting their invitees, they are not absolute insurers
of the safety of their invitees.” Bertrand, 537 N.W.2d at 188; see also Hoffner v.
Lanctoe, 492 Mich. 450, 821 N.W.2d 88, 94 (2012). In particular, a property
owner has no duty to protect its invitees from “open and obvious dangers,” unless
“special aspects of a condition make even an open and obvious risk unreasonably
dangerous.” Lugo v. Ameritech Corp., 464 Mich. 512, 629 N.W.2d 384, 386
(2001). Generally speaking, a dangerous condition on land is open and obvious if
it is either “known to the invitee” or is “so obvious that the invitee might
reasonably be expected to discover” it. Lugo, 629 N.W.2d at 386 (internal
quotation marks and citation omitted).
9

Beyond arguing that the dangerous condition at DTE’s power plant that caused
Plaintiff’s injury was open and obvious, Defendant Brand also appeals to the principle
that no duty arises under premises liability law unless the defendant has both possession
and control of the premises. See Orel v. Uni-Rak Sales Co., 454 Mich. 564, 563 N.W.2d
241, 243 (1997). As Brand states without contradiction, there is no evidence that it had
possession and control of DTE’s plant, or even the portion of the plant — i.e., the area
around the West Primary Air Heater — in which Plaintiff suffered his injury. (See
Brand’s Motion, Br. in Support at 14-15.) Plaintiff does not even attempt to contest this
point in his response to Brand’s summary judgment motion, but instead points only to
evidence that Brand participated in the meetings at which it was decided when and
whether Brand should install or remove the wooden platforms used by workers to perform
maintenance within the upper and lower chambers of the air heater. Accordingly, this
provides a separate basis for awarding summary judgment in Brand’s favor on the claims
asserted by Plaintiff against this contractor.
21

In this case, Plaintiff has expressly acknowledged that he was well aware of
the falling hazard he faced as he stepped past the yellow caution tape and
proceeded into the U-WPAH. More specifically, Plaintiff has testified (i) that a
tag hanging from the caution tape — a tag that he himself might have placed on
the tape — warned of a fall hazard in the area beyond the tape, (see Plaintiff’s
Dep. at 73-74, 109-12), (ii) that this tag served as notice to him that the area
beyond the tape posed a hazard of falling, (see id. at 116-17), (iii) that it was
obvious to him that he faced a danger of falling as he entered this area, (see id. at
117), and (iv) that this danger was not hidden, as he could “visually see” the gaps
in the stator’s grid work, (id at 117). Under this record, it is clear beyond dispute
that the dangerous condition that led to Plaintiff’s injury was “open and obvious”
within the meaning of Michigan law. Indeed, Plaintiff does not even address this
subject in his responses to Defendants’ motions, much less attempt to identify an
issue of fact that might preclude an award of summary judgment in Defendants’
favor on this point.
Instead, Plaintiff seeks to avoid this outcome by quoting extensively from
the Michigan Supreme Court’s decision in Ghaffari v. Turner Construction Co.,
473 Mich. 16, 699 N.W.2d 687 (2005). In that case, the plaintiff employee of an
electrical subcontractor was injured when he tripped on pipes at a construction
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site, and he invoked the “common work area” doctrine as a basis for imposing
liability on the general contractor that served as the construction manager for this
project. As explained by the court, “[a]t common law, property owners and
general contractors generally could not be held liable for the negligence of
independent subcontractors and their employees,” but Michigan law recognized an
“exception to the general rule of nonliability in cases involving construction
projects.” Ghaffari, 699 N.W.2d at 689-90. Specifically, under the “common
work area” doctrine, a property owner or general contractor may be deemed liable
for the negligence of an independent subcontractor or its employee if (1) it “failed
to take reasonable steps within its supervisory and coordinating authority (2) to
guard against readily observable and avoidable dangers (3) that created a high
degree of risk to a significant number of workmen (4) in a common area.” 699
N.W.2d at 690 (internal quotation marks, emphasis, and citation omitted).10
The question before the court in Ghaffari was whether a general contractor
that faces liability under the “common work area” doctrine “may avoid [this]

10

When the defendant is a property owner rather than a general contractor,
Michigan law also requires a showing that the owner “act[ed] in a superintending
capacity and ha[d] knowledge of high degrees of risk faced by construction workers” on
the premises, such that the owner could be said to have “retained control” over the
construction project. Ormbsy v. Capital Welding, Inc., 471 Mich. 45, 684 N.W.2d 320,
326 (2004) (internal quotation marks and citations omitted).
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liability on the basis that the condition giving rise to the injury was open and
obvious.” Ghaffari, 699 N.W.2d at 689. The court held that the “open and
obvious” doctrine is not available to a general contractor under these
circumstances, reasoning that “the open and obvious doctrine and the common
work area doctrine are incompatible,” and that the former doctrine should be
available only to a property owner defending against a claim of premises liability.
699 N.W.2d at 691.
Ghaffari thus is not applicable here, where Plaintiff is limited to a recovery
under premises liability law. To be sure, the claims asserted by Plaintiff against
Defendant DTE rest in part upon an appeal to the “common work area” doctrine,
and such a claim, if viable, would preclude DTE from invoking the “open and
obvious” doctrine to avoid liability under this theory of recovery. Yet, as already
explained, Plaintiff cannot pursue a claim of ordinary negligence against any
Defendant, whether DTE or Brand, where the record establishes beyond dispute
that Plaintiff’s injury was caused by a dangerous condition on the land. Because
the “common work area” doctrine allows the imposition of liability on a party —
i.e., a general contractor or property owner — that otherwise could not be held
liable for the negligence of an independent subcontractor or its employees, and
because there is no evidence here of a negligent act by a subcontractor or its
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employee that caused Plaintiff’s injury, the “common work area” doctrine does not
assist Plaintiff in his effort to hold DTE liable for his injury. Rather, Plaintiff’s
sole avenue of recovery against DTE (as well as Brand) is under premises liability
law, and any such recovery is precluded by the open and obvious nature of the
dangerous condition that caused Plaintiff’s injury.11
IV. CONCLUSION
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant Brand’s
May 26, 2016 motion for summary judgment (docket #94) is GRANTED. IT IS
FURTHER ORDERED that Defendant DTE’s May 31, 2016 motion for summary
judgment (docket #99) also is GRANTED. IT IS FURTHER ORDERED that
Plaintiffs’ May 31, 2016 motion for summary judgment (docket #96) is DENIED.

11

In light of this conclusion, the Court need not address DTE’s argument in its
motion that Plaintiff has failed as a matter of law to establish a basis for imposing liability
on DTE under the “common work area” doctrine.
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In light of these rulings, IT IS FURTHER ORDERED that Defendant
DTE’s August 9, 2016 motion to strike the supplemental report of Plaintiff’s
expert (docket #108) is DENIED AS MOOT, and that Defendant DTE’s March 7,
2016 objections to the Magistrate Judge’s order granting Plaintiffs’ motion to
compel (docket #83) likewise are DISMISSED AS MOOT.

s/Gerald E. Rosen
United States District Judge
Dated: January 17, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on January 17, 2017, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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