Leone et al v. BMI Refractory Services, Incorporated

Filing 71

OPINION AND ORDER Denying 63 Motion for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Filippo Leone, et al.,
Plaintiffs,
v.

Case No. 15-11542

BMI Refractory Services, Incorporated,

Sean F. Cox
United States District Court Judge

Defendant.
__________________________________/
OPINION & ORDER
DENYING DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT
After he was injured on the job at his employer, A.K. Steel, Plaintiff Filippo Leone and
his wife Anna Leone filed this action asserting negligence and loss of consortium claims against
a contractor (BMI Refractory Services, Inc.) whose negligence allegedly caused his accident.
Following the close of discovery, BMI filed a Motion for Summary Judgment arguing, among
other things, that BMI owed no duty of care to Leone under Michigan law because, in
undertaking its contractual obligations to A.K. Steel, it had neither created a new hazard nor
worsened any existing hazard. This Court granted summary judgment in favor of BMI on that
issue, and did not address BMI’s other arguments.
Plaintiffs appealed. The Sixth Circuit concluded that this Court interpreted Michigan law
too narrowly on this issue and reversed. The Sixth Circuit concluded that, viewing the facts in a
light most favorable to Plaintiffs, Michigan law would recognize that BMI owed Leone a duty
separate and distinct from its contractual obligations to A.K. Steel. The Sixth Circuit noted that
BMI had asserted there were other potential problems with Plaintiffs’ case, but because BMI did

1

not adequately include arguments on those alternative grounds, the Sixth Circuit did not address
them.
Following remand, Defense Counsel requested that BMI be allowed to file a renewed
summary judgment motion, in order to renew the alternative arguments that this Court had not
ruled upon. That motion has since been filed and briefed, and the Court heard oral argument on
November 29, 2018.
In “Defendant’s Renewed Motion for Summary Judgment,” BMI renews grounds raised
previously but not decided by this Court (whether Filippo Leone can establish breach and
proximate cause and whether Anna Leone’s derivative loss of consortium claim fails). It also
includes an entirely new argument regarding comparative negligence. For the reasons set forth
below, the Court shall DENY the motion and Plaintiffs’ claims shall proceed to a jury trial.
BACKGROUND
Plaintiffs Filippo Leone (hereinafter “Leone”) and his wife Anna (collectively
“Plaintiffs”) filed this action against Defendant BMI based upon diversity jurisdiction. Their
complaint includes two claims, both brought under Michigan law: 1) a negligence claim; and 2)
a claim for loss of consortium.
Following the close of discovery, BMI filed a Motion for Summary Judgment arguing,
among other things, that BMI had no duty of care to Leone because, in undertaking it contractual
obligation to A.K. Steel, it had neither created a new hazard nor worsened any existing hazard.
That motion did not include any arguments regarding comparative fault. This Court ultimately
granted summary judgment in favor of BMI, concluding that BMI owed no duty of care to Leone
under Michigan law that was separate and distinct from the contract, and did not address BMI’s

2

other arguments.
The Sixth Circuit reversed, concluding that this Court applied Michigan law too
narrowly, mistaking “a common feature of Osman, Davis, and Loweke1 – the defendant’s
creation of a new hazard – for a requirement.” Leone v. BMI Refractory Svs., Inc., 893 F.3d 359,
363 (6th Cir. 2018). The Sixth Circuit appears to have concluded that a genuine issue of
material fact2 exists as to whether BMI owed a duty to Leone that was separate and distinct from
its contractual obligations to A.K. Steel:
When BMI performed on its contract – especially when it inspected the alloy

1

The Sixth Circuit noted that following Fultz, “Michigan-law cases where courts found
that a contractor owed a ‘separate and distinct duty’ also happened to involve contractors
creating new hazards.” Leone, 893 F.3d at 362.
2

The issue of whether a duty exists for purposes of a negligence claim under Michigan
law is usually an issue of law for the Court to determine. See, eg., Fultz v. Union-Commerce
Assocs., 470 Mich. 460, 463 (2004) (“Whether defendant CML owed a duty to plaintiff is a
question of law.”); Friedman v. Dozorc, 412 Mich. 1, 22 (1981) (“In a negligence action the
question whether the defendant owes an actionable legal duty to the plaintiff is one of law which
the court decided after assessing the competing policy consideration for and against recognizing
the asserted duty.”); Harts v. Farmers Ins. Exch., 461 Mich. 1, 7 (1999) (“Whether a duty exists
is a question of law that is solely for the court to decide.”); SFS Check, LLC v. First Bank of
Delaware, 774 F.3d 351, 357 (6th Cir. 2014) (Citing Fultz and noting that, in a negligence action
brought under Michigan law, the “threshold question of whether the defendant owed a duty to
the plaintiff is a question of law to be decided by the court.”); Bryrum v. International Paper
Co., 185 F. App’x 511, 514 (6th Cir. 2006). Other authority, however, suggests that necessary
underlying facts relating to the issue of duty are sometimes to be determined by a jury, although
the ultimate duty issue is still determined by the Court. See, eg., Aisner v. LaFayette Towers,
129 Mich. App. 642, 645 (1983) (“Ordinarily, the element of duty in a negligence action is one
of law for the court to decide. However, where there are factual circumstances which give rise
to a duty, the existence or nonexistence of those facts must be decided by a jury.”); Willecke v.
Kozel, 395 F. App’x 160, (6th Cir. 2010) (“Whether a duty exists is a question of law that is
solely for the court to decide. Harts v. Farmers Ins. Exchange, 461 Mich 1, 597 N.W.2d 47, 50
(1999). However, if ‘there are factual circumstances which give rise to a duty’ then ‘[t]he
existence of those facts must be determined by a jury.’ Farwell v. Keaton, 396 Mich. 281, 240
N.W.2d 217, 220 (1976)).”
3

chute for any loose slag – it “assumed to act.” See id. It thereby took on “a duty .
. . to perform the act in a nonnegligent manner.” See Fultz, 683 N.W.2d at 591.
Viewing the facts in the light most favorable to the plaintiffs, Michigan law would
recognize that BMI owed Leone a duty “separate and distinct” from its
contractual obligations to A.K. Steel.
Id. (emphasis added). The Sixth Circuit noted that BMI made additional arguments relating to
breach and proximate cause, but did not address them:
BMI notes other potential problems with the plaintiffs’ case, such as Leone’s
concession that he has no reason to believe that the slag that hit him was loose
when BMI completed its work. See Part IA., supra. But those issues pertain to
whether BMI breached its duty to Leone or whether any such breach was a
proximate cause of Leone’s injury, not whether a duty existed in the first place.
And because BMI proffers no alternative arguments on those grounds, we are
confined to the duty question.
Id. (emphasis in original).
After the mandate was issued, the Court held a Status Conference with the parties and
Defense Counsel requested that it be allowed to file a motion, in order to renew the alternative
arguments in its summary judgment motion that this Court had not ruled upon. This Court agreed
that BMI could do so. BMI filed its “Renewed Motion for Summary Judgment” on September
28, 2018.
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, provide in pertinent part 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. The
Statement shall include all necessary material facts that, if undisputed,
would result in summary judgment for the movant.

b.

In response, the opposing party shall file a separate document entitled
Counter-Statement of Disputed Facts. The counter-statement shall list in
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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 CounterStatement of Disputed Facts.

d.

The statements shall be non-argumentative and avoid the use of color
words or distortions of the record in a party’s favor. Conclusory,
speculative, or conjectural statements in support of a position shall be
avoided. Hearsay statements and other inadmissible evidence cannot be
considered.

e.

Facts stated in the Statement of Material Facts Not In Dispute and
Counter-Statement of Disputed Facts shall be supported with appropriate
citations to the record, including but not limited to the pleadings,
interrogatories, admissions, depositions, affidavits and documentary
exhibits. Citations to the record must be specific, ie., cite to a discrete
page or portion of deposition testimony or page(s) of documentary
evidence, not simply the entire deposition or document . . . .

(ECF No. 11 at Pg ID 155-56).
In compliance with this Court’s practice guidelines, along with its motion, BMI filed a
“Statement of Material Facts Not In Dispute” (“Def.’s Stmt.”) and along with their Response
Brief, Plaintiffs filed a “Counter-Statement of Material Facts” (“Pls.’ Stmt.”).
The following material facts are either undisputed, or are gleaned from the evidence
submitted by the parties, viewed in the light most favorable to Plaintiffs, the non-movants.
“The events giving rise to this suit transpired inside a degasser, a large vat that [Leone’s]
employer, A.K. Steel, used to extract gas impurities from molten steel. Over twenty-four feet
deep, with an interior diameter greater than eight feet, it was lined with layers of brick; the
5

innermost layer – called the face brick – deteriorates with use and requires occasional
replacement. The degasser’s components include an alloy chute near the top of the vat that
allows ingredients to be added to the molten steel during processing.” Leone, 893 F.3d. at 361.
There are two cavities in the bottom called snorkels. As the parties agreed previously, “slag” is a
term used to refer to the build up of scrap metal and concrete that accumulates on the interior
surfaces of these vessels with repeated usage.
A.K. Steel periodically has to perform maintenance work on a given degasser, which
includes two different phases. First, a tear out of the refractory brick and slag inside the degasser
is done (the “Tear Out”). Second, after the Tear Out is completed, the interior of the degasser is
then relined with new refractory brick (“the Rebricking”).
A.K. Steel usually has its own employees perform both the Tear Out and Rebricking
phases in its degassers. (Def.’s & Pls.’ Stmts. at ¶ 6). But when A.K. Steel is short on
manpower, it hires BMI to perform such work. AK Steel Refractory Supervisor James Boggs
would hire BMI for that work. (Boggs Dep. at 10).
BMI regularly performed work at AK Steel for years, including both Tear Outs and
Rebrickings of degasser vessels. (Def.’s & Pls.’ Stmts. at ¶ 2).
Tear Outs
It is undisputed that there are no written A.K. Steel procedures or guidelines to be
followed for Tear Outs. (Def.’s & Pls.’ Stmts. at ¶ 3).
When a Tear Out is done, A.K. Steel would decide whether to remove the face brick
only, leaving the alloy chute, or whether to remove the face brick and replace the alloy chute.
(Boggs Dep. at 12-13). Boggs testified that “[t]he construction of the alloy chute is a multi-

6

component thing. There is a face brick aspect of the alloy chute that is removed” even when the
chute is left in place. (Boggs Dep. at 14).
During all Tear Outs, the floor of the degasser is also torn out and replaced. (Boggs Dep.
at 13).
During his deposition, Jackson described the general process of how the interior of a
degasser is typically inspected by BMI, both visually and manually, 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. (Jackson Dep. 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 they fall to the bottom of the degasser. (Id. at 22).
Jackson then described the manner in which the BMI crew would then physically
examine the interior of the degasser to remove any loose or unstable slag:
Q.
A.
Q.
A.
Q.
A.
Q.
A.

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?
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.
Take me through mechanically the actual physical process of doing that,
what are you doing?
You get close to the brick, you can grab it or you poke it with a bar or
something.
You use – how do you get in there, you use a ladder?
Yes, you have to use a ladder to get in.
So does one person do it, does the whole crew do it?
One person goes in and checks it and makes sure everything is good.

(Jackson Dep. at 14-15) (emphasis added).
BMI superintendent Gary Sund also testified that, during a Tear Out, the BMI crew goes
in and physically inspects the interior of the degasser, going from top to bottom, and using a pry
7

bar or other tools to poke and prod anything on the surface. (Sund Dep. at 35-37). Sund testified
that includes checking to make sure whether anything could fall from the alloy chute. (Id. at 37).
Jackson testified that when a crew goes in to do a Tear Out, the interior of the degasser is
still warm to the touch and, as the degasser later cools down to room temperature, any materials
inside the degasser tend to “shrink” and “crack.” (Jackson Dep. 29-31). Jackson further testified
that “[a]ny vibration, anything can loosen up material easy, especially when it cools down.” (Id.
at 41-42).
Rebrickings
There are no written A.K. Steel procedures or guidelines for the Rebricking phase.
(Boggs Dep. at 12). During his deposition, Leone described the general process for how the
Rebricking phase works:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
....
A.
....
Q.

A.
Q.
A.

How is that relining performed from the very beginning until the end?
Describe for me what that process entails.
Process is BMI tear it all out, clean it all up for us. Then BMI people let
my supervisor know the degasser is ready to be relined. And after that –
That would be Mr. Boggs?
– Mr. Boggs. After that, Mr. Boggs call the maintenance people, which is
other welder.
Calls maintenance people the welders?
Yes.
For what?
They weld up to the bottom, snorkel, call it a snorkel. So we can –
without those snorkels, we cannot start laying brick.
What’s a “Snorkel”?
No, just the floor. I’m talking about the floor.
So then after the tear-out of the brick on the sides and the floor of degasser
is done, Boggs gets a hold of maintenance and the welders and they come
in and cut off the snorkels and reweld new snorkels on?
Yes, sir.
That’s to the bottom?
Yes.
8

Q.
A.
....
Q.
A.
Q.
A.

How long does that take?
Depends on the manpower they got. Sometimes it takes three, four days,
sometime a week.
All right. So the bricks are torn out, the snorkels are cut off and rewelded
onto the bottom of the degasser vessel. Then what’s next in the process?
Next – that’s when we come in.
That’s when you, the bricklayers, come in?
Bricklayer come in, yes, and we start br[icking] snorkel.

(Leone Dep. at 110 to 116).
Leone further testified that, during the Rebricking phase, no one performs another
inspection of the interior of the vessel for slag:
Q.

A.
Q.
A.

Okay. Does anybody go from the floor of the degasser, or the bottom of
the degasser, up to the top, up that ladder or in any other fashion to make
sure there’s nothing loose or anything that may fall onto you or your crew
working below?
No.
Nobody does that?
No.

(Leone Dep. at 127-28).
Thus, unlike the Tear Out phase, where the person inspecting for slag manually grabs the
slag or pokes it with a bar,3 the persons performing the Rebricking of a degasser do not perform
a physical inspection of the interior for slag that may be loose or unstable.
The bricklayers lay the brick from the bottom of the vessel and work upwards toward the
top of the degasser.
The Incident At Issue
On or about September 16, 2014, BMI had a four-man crew that conducted the Tear Out
of the degasser vessel at issue in this case, pursuant to Purchase Order 5675233. That crew

3

(Jackson Dep. at 14-15).
9

consisted of Harold Jackson, Dustin Sinclair, Chris Martin, and Oscar Lopez. (Def.’s & Pls.’
Stmts. at ¶¶ 2-3; Def.’s Ex. 6). That crew conducted the Tear Out pursuant to the verbal
instructions of A.K. Steel Refractory Supervisor James Boggs. (Def.’s & Pls.’ Stmts. at ¶ 3).
There is some dispute as to what the BMI crew was told to do pertaining to the alloy
chute for this Tear Out job. Construing the evidence in the light most favorable to Plaintiffs,
Boggs instructed the BMI crew not to conduct a complete tear out of the alloy chute but testified
that “there is a face brick aspect of the alloy chute that is removed” and the BMI crew was
“instructed to tear out the hot face of the alloy chute. (Boggs Dep. at 14 & 21-22).4
It is undisputed that the Tear Out of the vessel was conducted from top to bottom.
(Def.’s & Pls.’ Stmts. 4).
The work performed by BMI was performed on a single day, September 16, 2014. 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 actual Tear Out work. (Id.).
Jackson testified that, for this Tear Out, the alloy chute was not to be touched “unless
something [was] loose.” (Jackson Dep. at 18). Jackson testified as follows regarding the alloy
chute:
Q.
A.
Q.
A.
Q.
A.

Okay. Did you take a look at the alloy chute on your way down?
Yes.
Anything in the alloy chute?
It didn’t look like it, no.
Okay. You didn’t see anything?
No.

4

Another AK Steel supervisor named Shawn Halley testified that when a tear out is
performed without removing the alloy chute, the alloy chute is to be cut back so that it is flush
with the face brick. (Halley Dep. at 29).
10

Q.
A.
....
Q.
A.
Q.
A.
Q.
A.
Q.
A.

If you had seen something, would you have knocked it off?
Yes.
When you go through and check for loose material, do you check the face
of the alloy chute?
Yes.
And would you – would you have checked it for something like that
sticking out?
Yes.
If that were sticking out or loose on the face of that alloy chute, would you
have checked it?
Yes.
And then removed it, if it were loose?
Yes.

(Jackson Dep. at 22 & 29).
Jackson testified that, as to this Tear Out, he personally performed both the visual and
physical inspection of the interior of the degasser for slag by himself. (Jackson Dep. at 15-17).
But, as Plaintiffs note, that testimony is contradicted by the confined space sign-in sheet
(Pls.’ Ex. 3), which does not show an initial entry by Jackson alone. It shows the first entry was
by Jackson and Martin together.
Martin testified that when looking for things that may fall, “you eyeball it, you know,
sweep any dust that might fall on you when you’re down there” and “usually it’s got a crust on
it, so you know it’s pretty safe.’ (Martin Dep. at 9-10).
Boggs testified that he inspected and signed off on this Tear Out job by BMI. (Boggs
Dep. at 19). Boggs testified that sometimes he would go into a degasser to inspect it, and other
times he would just look down into the degasser from the top. Boggs does not remember if he
went into the degasser following BMI’s work on this particular Tear Out job. (Boggs Dep. at
92-93).
Leone, a veteran mason his entire adult life, had been working with AK Steel or its
11

predecessor since 1997 and was also a working leader from 2010 up through the day of this
accident. (Def.’s & Pls.’ Stmts. at ¶ 6).
Leone was supervised by Boggs. Leone had been working in this same degasser every
month and a half for 18 years. Leone had previously performed both Tear Outs and Rebrickings.
Def.’s & Pls.’ Stmts. at ¶ 6).
On October 7, 2014, 21 days after BMI completed its Tear Out, Leone and another
employee were performing the Rebricking of the degasser and had been doing so for about one
week. About a week prior to that, the snorkels were torched off and replaced with new snorkels
on the bottom of the degasser vessel. (Def.’s & Pls.’ Stmts. at ¶ 7).
During the Rebricking, Leone climbed up and down the ladder, which he or his crew
placed inside the degasser, at least five times per day. (Def.’s & Pls.’ Stmts. at ¶ 8). The alloy
chute in this degasser is within six feet of Leone or any other individual going up and down the
ladder.
Photographs of the degasser show that there was some slag visibly present on the alloy
chute. (See Def.’s Exs. 9 & 10).
At no time did Leone see any loose slag associated with the alloy chute or its face, or
anything Leone thought was a danger or concern. (Def.’s & Pls.’ Stmts. at ¶ 8). If Leone had
seen such or had his crew reported such, Leone would have stopped this job and remedied the
condition. (Id.).
Viewing the evidence in the light most favorable to Plaintiffs, Leone did not perform any
kind of physical inspection of the slag during the Rebricking. (Leone Dep. at 127-28). That is,
after BMI completed its Tear Out work, Leone did not conduct another inspection to determine if

12

any slag present was loose or unstable.
Leone was working on a scaffold in the bottom of the degasser on October 7, 2014, when
a piece of “slag’ fell down and struck his lower back/buttocks. (Def.’s & Pls.’ Stmts. at ¶ 13).
Dewain Anthony Love, who was working inside the degasser with Leone at the time of
the incident, testified that from his peripheral vision he saw the slag fall and “yelled whoa” but
“it hit [Leone] before he could even react.” (Love Dep. at 25-29). Love identified the slag as
having come off the alloy chute. (Id.).
That piece of slag was weighed and photographed. (Pls.’ Ex. 6). It weighed 40 pounds.
Boggs testified that he kept that piece of slag in the back of his truck for a few months but then
he threw it out. (Boggs Dep. at 51).
Both Leone and Boggs testified that they do not know how or why the piece of slag
became dislodged or when it became loose. (Boggs Dep. at 67; Leone Dep. at 174).
Boggs testified that the size and shape of the piece of slag “indicated it came off the alloy
chute.” (Boggs Dep. at 46).
The parties agree that there are many possible reasons why the piece of slag became
dislodged, including, but not limited to, vibration from equipment and temperature changes
inside the degasser. (Def.’s & Pls.’ Stmts. at 10).

ANALYSIS
Because this action is in federal court based upon diversity jurisdiction, Michigan law
governs Plaintiffs’ negligence and loss of consortium claims. The pending motion challenges

13

both claims.
I.

Renewed Challenges To Negligence Claim
In Michigan, a prima facie negligence claim requires a plaintiff to show that: 1) the

defendant owed the plaintiff a legal duty; 2) the defendant breached the legal duty; 3) the
plaintiff suffered damages; and 4) the defendant’s breach was a proximate cause of the plaintiff’s
damages. Leone, 893 F.3d at 362.
In the pending motion, BMI asserts that Plaintiffs cannot establish that it breached its
duty of care and also cannot establish proximate cause.
A.

Can Leone Create An Issue Of Fact As To Whether BMI Breached Its Duty
Of Care?

In concluding that, when the facts are viewed in a light most favorable to Leone, BMI
owed Leone a duty under Michigan law, such that he could proceed with a negligence claim, the
Sixth Circuit stated: “When BMI performed on its contract – especially when it inspected the
alloy chute for any loose slag – it ‘assumed to act’” thereby taking on a duty to perform the act in
a non-negligent matter. Leone, 893 F.3d at 363.
Once the existence of such a duty is established, the general standard imposed on a
defendant is the exercise of due care or to act as a reasonable person would under like
circumstances. Case v. Consumers Power Co., 463 Mich. 1 (2000).
Here, Leone asserts that the “evidence that has been presented in this case demonstrates
that BMI breached this duty by allowing a 40 pound piece of slag to strike Mr. Leone.” (Pls.’
Br. at 7-8).
In support of that position, Leone first notes that it is undisputed that the slag that struck
him was waste material from ordinary plant operations – and it had to have existed before and
14

after BMI performed its work. See Leone, 893 F.3d at 361 (“Because no molten metal could
have created new slag between the end of BMI’s tearout and the accident, the district court
concluded (and the parties do not contest) that the offending slag must have existed when BMI’s
employees finished.”).
Leone asserts that the “breach of duty is that BMI never did the inspection that they
claimed to do and, as a result, they never found the slag that ultimately fell” on him. (Id.)
In support of that position, Leone notes that “Jackson was insistent that one worker – him
– examined the entire vessel for loose debris from top to bottom before the platforms are put in
and the two workers enter to begin the tearout, (Jackson pp. 14-17, Ex. 9) yet the confined space
entry log clearly reflects Jackson and Martin entering at the same time and remaining in the
vessel for over three hours.” (Pls.’ Br. at 8). Leone notes that the “inspection Jackson described
is conspicuously absent” from the confined space entries for the day in question. He further
directs the Court to Martin’s testimony about how “you eyeball it” and how the vessel “usually
it’s got a crust on it, so you know it’s pretty safe.” (Martin Dep. at 9-10).
Leone also directs the Court to evidence that the slag that hit Leone came from
somewhere on the face of the alloy chute and evidence that “[t]emperature changes, vibration,
hammering, and other normal work conditions can cause slag to fall, which was known” to BMI.
(See Jackson Dep. at 29-31 & 41-42).
In sum, Leone argues that, construing the evidence in the light most favorable to him, a
reasonable jury could conclude that “BMI failed to do the inspection it claimed to do and left this
vessel with an unstable forty pound piece of slag poorly adhered to the face of the alloy chute”
and that they “did so knowing that vibration, temperature change, and other entirely foreseeable

15

forces could cause pieces of slag [,] just like the one that ultimately injured Mr. Leone, to fall.”
(Pls.’ Br. at 10).
This Court agrees that, viewing all of the evidence in the light most favorable to Leone, a
reasonable jury could find that BMI breached its duty by failing to inspect for, and remove, slag
from the degasser.
B.

Can Leone Create An Issue Of Fact As To Proximate Cause?

BMI’s motion also asserts that Leone cannot create a genuine issue of material fact as to
proximate cause.
“In order to establish causation, a plaintiff must prove two elements: (1) cause in fact and
(2) proximate cause.” Rupert v. Daggett, 695 F.3d 417, 425 (6th Cir. 2012) (citing Skinner v.
Square D Co., 445 Mich. 153 (1994)). The cause in fact element generally requires showing that
“but for” the defendant’s actions, the plaintiff’s injury would not have occurred. Id. The
Michigan Supreme Court “clarified the governing standard for proximate cause” as follows:
Proximate causation involves examining the foreseeability of consequences and
whether a defendant should be held legally responsible for such consequences
given his negligent acts or omissions. This Court has defined proximate cause as
“a foreseeable, natural, and probable cause.” Such causation is distinct from
factual or “but for” causation, and issues of proximate causation thus call for an
independent, searching inquiry, the focus of which is whether the result of
conduct that created a risk of harm and any intervening causes were foreseeable.
Probability of harm is thus a relevant consideration to determine whether the
defendant’s conduct was foreseeable or if the defendant should be held legally
liable in light of the circumstances. Since there are risks that can be foreseen but
would not be avoided by a reasonable person, for liability to attach the harm must
be of a kind that defendant should have avoided or it must be shown that
defendant's actions presented an unreasonable risk of harm.
Rupert, 695 F.3d at 425-26 (quoting Jones v. Detroit Med. Ctr., 490 Mich. 960 (2011)). As the
Sixth Circuit further explained:

16

If an intervening force is not reasonably foreseeable under an objective standard,
it constitutes a “superseding cause” which relieves a prior negligent defendant
from liability. Ridley v. City of Detroit, 231 Mich.App. 381, 590 N.W.2d 69, 73
(1998), remanded on other grounds sub nom. Ridley v. Collins, 463 Mich. 932,
622 N.W.2d 65 (2000). “While an act of God or the gross negligence or
intentional misconduct by the victim or a third party will generally be considered
a superseding cause, ordinary negligence by the victim or a third party will not be
regarded as a superseding cause because ordinary negligence is reasonably
foreseeable.” People v. Schaefer, 473 Mich. 418, 703 N.W.2d 774, 786 (2005);
see also Love v. City of Detroit, 270 Mich.App. 563, 716 N.W.2d 604, 610 (2006)
(Cooper, J., dissenting) (applying Schaefer to civil case). An intervening cause is
considered reasonably foreseeable when the defendant’s negligence “enhanc[es]
the likelihood that the intervening cause will occur.” Hickey v. Zezulka, 439 Mich.
408, 487 N.W.2d 106, 119 (1992). “[W]hether an intervening negligent act of a
third person constitutes a superseding proximate cause is a question for the jury.”
Ykimoff v. Foote Mem. Hosp., 285 Mich.App. 80, 776 N.W.2d 114, 133 (2009)
(quoting Taylor v. Wyeth Lab., Inc., 139 Mich.App. 389, 362 N.W.2d 293, 300
(1984)). Lastly, there may be more than one proximate cause contributing to an
injury. Lewis v. Yale Co., 888 F.2d 1391 (Table), 1989 WL 136144, at *2 (6th
Cir. Nov. 13, 1989).
Id.
Here, BMI first asserts that Leone cannot establish proximate cause because: 1) there is
no witness who can testify as to when the piece of slag that fell on Leone became loose; 2) it was
unforeseeable that the piece of slag would fall and injure Leone 21 days after it finished the Tear
Out, during the Rebricking of the degasser; and 3) there could have been some other intervening
and superceding cause of this accident, such as other people having worked on the degasser,
such as when the snorkels were replaced.
Notably, the issue of proximate cause is typically a question of fact for the jury. See
Helmus v. Dep’t of Transp., 238 Mich. App. 250, 256 (1999). The Court concludes that Leone
has presented evidence that, if believed by the jury, is sufficient to create an issue of fact as to
proximate cause in this action.
As Plaintiffs’ brief notes, Leone does not need to present a witness who can testify as to
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precisely when the piece of slag became loose or dislodged, as circumstantial evidence is
permissible.
“The plaintiff in a Michigan negligence action need only provide proof of ‘a reasonable
likelihood of probability’ that his explanation of the injury is correct.” McLean v. 988011
Ontario, Ltd., 224 F.3d 797, 801 (6th Cir. 2000) (citing Skinner, supra).
Leone’s theory of causation is as follows. BMI was an experienced contractor who had
previously been hired for both Tear Outs and Rebrickings in degassers at A.K. Steel. As to this
job, BMI was hired to do the Tear Out phase, and knew that a Rebricking would follow under
the normal course of this cyclical work. BMI had a duty to remove slag that was loose or could
become dislodged, thereby endangering workers inside the degasser during both the Tear Out
and Rebricking phases. BMI’s crew knew that they had to manually touch or pry potentially
unstable slag, rather than simply looking at the walls. BMI’s crew also knew that temperature
changes and vibrational forces could cause slag to fall, and that such temperatures changes and
vibrational forces would occur after its work was finished, during the Rebricking of the degasser.
Yet BMI’s crew failed to remove a visible, forty-pound, piece of slag from the alloy chute,
which then dislodged as result of foreseeable forces of which BMI’s crew was aware, such as the
snorkels being removed and replaced at the bottom of the degasser.
Under Michigan law, a jury in a negligence case is allowed to consider such a
“reasonable hypothesis even when supported by circumstantial evidence.” McLean, 224 F.3d at
805.
C.

Is Leone More Than 50% Comparatively Negligent?

Although its original motion never included this issue, BMI’s Renewed Motion for

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Summary Judgment asserts that if this Court finds any question of fact regarding any breach of
duty by BMI or proximate cause, then Leone’s comparative negligence must be analyzed.
(Def.’s Br. at 17).
In response, Plaintiffs assert that his argument is untimely because it was not contained in
BMI’s original summary judgment motion and was raised for the first time in this renewed
motion. (Pl.’s Br. at 17).
The Court concludes that it would not be appropriate to address this new argument,
which was not raised by BMI in its original summary judgment. This Court allowed BMI to
renew its previous arguments that were not addressed by the Court; it did not agree to allow it to
raise additional issues that could have been, but were not, included in its original motion.5
II.

Challenge To Loss Of Consortium Claim
As its only challenge to Anna Leone’s loss of consortium claim, BMI contends if there is

no basis for liability as to the negligence claim, then this claim fails too.
“A derivative claim for loss of consortium stands or falls with the primary claims in the
complaint.” Long v. Chelsea Commty. Hosp., 219 Mich. App. 578, 589 (1996). Plaintiffs do not
dispute this concept. (Pls.’ Br. at 24) (“Plaintiff agrees that the loss of consortium claim stated
by Anna Leone is a derivative claim that rises and falls with Mr. Leone’s claim” for

5

Moreover, as BMI’s own brief acknowledges, normally the question of a plaintiff’s
comparative negligence is a question for the trier of fact. Poch v. Anderson, 229 Mich. App. 40,
51 (1998); see also Jimkoski v. Shupe, 282 Mich. App. 1, 8 n. 3 (2016) (“The extent of a
plaintiff’s comparative fault, if any, is generally a question for the jury.”). Only where no
reasonable juror could find that the defendant was more at fault than the plaintiff should the issue
be considered in a motion for summary judgment. Huggins v. Scripter, 469 Mich. 898, 898-99
(2003). This does not appear to be such a case.
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negligence.).
Given that this Court is denying BMI’s request for summary judgment as to the
negligence count, Anna Leone’s loss of consortium claim will also proceed to a jury trial.
CONCLUSION & ORDER
For the reasons set forth above, IT IS ORDERED that BMI’s Renewed Motion for
Summary Judgment is DENIED and Plaintiffs’ claims shall proceed to a jury trial.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: December 13, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record on
December 13, 2018, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager

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