Guldenstein et al v. Merit Energy Company LLC

Filing 86

OPINION and ORDER Granting Defendant's 36 Motion for Summary Judgment. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT GULDENSTEIN and
KAREN GULDENSTEIN,
Plaintiffs,
v.
MERIT ENERGY COMPANY, LLC,

Civil Case No. 15-14181
Honorable Linda V. Parker

Defendant/
Third-Party Plaintiff,
v.
DOUGLAS HART, d/b/a
HART GAS & OIL OPERATING SERVICE,
Third-Party Defendant.
_____________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
This is a negligence and premises liability action arising from injuries Plaintiff
Robert Guldenstein (“Mr. Guldenstein”) sustained while repairing a valve on a
hydrogen sulfide gas line at Defendant Merit Energy Company, LLC’s facility in
Hartland, Michigan.1 The matter presently is before the Court on Merit’s motion for
summary judgment, filed pursuant to Federal Rule of Civil Procedure 56(c) on

Mr. Guldenstein’s wife, Karen Guldenstein, also is a plaintiff, asserting a
loss of consortium claim. Mr. Guldenstein’s employer, Douglas Hart, doing
business as Hart Gas & Oil Operating Service, is a third-party defendant sued for
indemnification by Merit.
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February 10, 2017. (ECF No. 36.) The motion has been fully briefed and was
scheduled for hearing on July 11, 2017. (ECF No. 52, 53.)
Counsel for Merit and Third-Party Defendant Douglas Hart, d/b/a Hart Gas &
Oil Operating Service, appeared at the hearing. Counsel for Plaintiffs did not. The
Court subsequently held a telephone conference with counsel for the parties, advising
that in lieu of rescheduling the hearing, it would issue an order requiring them to file
supplemental briefs addressing specific issues. On July 11, 2017, the Court entered its
order. (ECF No. 83.) According to the deadline set forth in that order, the parties
filed supplemental briefs on July 18, 2017. (ECF No. 84, 85.) For the reasons that
follow, the Court now grants Defendant’s summary judgment motion.
I.

Factual and Procedural Background2
Merit contracted with Douglas Hart, doing business as Hart Gas & Oil

Operating Service (“Hart Gas & Oil”), for regular repair and maintenance at Merit’s
facilities, including its facility in Hartland, Michigan. Beginning in 2011, Mr.
Guldenstein worked as an employee for Hart Gas & Oil.
On November 5, 2014, Mr. Guldenstein and Hart Gas & Oil’s owner, Douglas
Hart (“Mr. Hart”), arrived at the Hartland facility to repair a valve on a hydrogen
sulfide gas line. Neither Mr. Guldenstein nor Mr. Hart wore respiratory protection.
During the repair, Mr. Guldenstein was exposed to sulfide gas and was injured.

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The following facts appear undisputed.
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The Michigan Occupational Safety and Health Administration (“MIOSHA”)
conducted an investigation within days following the incident. (Pls.’ Resp. Br., Ex. 1,
ECF No. 52-2.) MIOSHA investigator Matthew Macomber prepared a report of his
findings, which included that Merit violated two MIOSHA regulations. (Id.)
II.

Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is

appropriate “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).
The central inquiry 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 (1986).
After adequate time for discovery and upon motion, Rule 56 mandates summary
judgment against a party who fails to establish the existence of an element essential to
that party’s case and on which that party bears the burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III.

Parties’ Arguments
Merit seeks summary judgment, arguing that because Plaintiffs have not named

an expert witness or provided an expert report and the deadline for doing so has long
passed according to the Court’s Scheduling Order (see ECF No. 31), they cannot
establish an essential element of Mr. Guldenstein’s claims—that is, that Merit
breached a duty of care owed to Mr. Guldenstein. In response to Merit’s motion,

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Plaintiffs do not contest that they have identified no expert witness to testify
concerning the applicable duty of care Merit owed Mr. Guldenstein. Instead,
Plaintiffs argue that no such expert is needed in a case such as this.
Specifically, Plaintiffs argue that where the defendant has violated a statute or
regulation causing the plaintiff’s injury, the violation is evidence of negligence.
Plaintiffs point out that they identified on their witness list three MIOSHA employees
and MIOSHA’s records custodian in order to present evidence about MIOSHA’s
investigation of Merit following Mr. Guldenstein’s injuries, which concluded that
Merit violated two MIOSHA regulations relevant to the accident.
In reply, Merit contends that the MIOSHA report is inadmissible to prove a
statutory or regulatory violation because it lacks the trustworthiness required under
Federal Rule of Evidence 803(8)(B).
IV.

Applicable Law and Analysis
To prevail on his negligence and premises liability claims, Mr. Guldenstein

must establish that: (1) Merit owed him a duty; (2) Merit breached that duty; (3) the
breach was the proximate cause of his injuries; and (4) he suffered damages. Benton
v. Dart Props., Inc., 715 N.W.2d 335, 440 (Mich. Ct. App. 2006) (citing Taylor v.
Laban, 616 N.W.2d 229 (Mich. Ct. App. 2000)). Mr. Guldenstein was an invitee on
Merit’s property. See Beals v. Walker, 331 N.W.2d 700, 704 (Mich. 1982); Butler v.
Ramco-Gershenson, Inc., 542 N.W.2d 521, 532 (Mich. Ct. App. 1995). “An owner
‘owes a duty to an invitee to exercise reasonable care to protect the invitee from an

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unreasonable risk of harm caused by a dangerous condition on the land.’ ” Benton,
715 N.W.2d at 338-39 (quoting Lugo v. Ameritech Corp., 629 N.W.2d 384, 386
(Mich. 2001)). The Michigan Supreme Court has held that expert testimony is needed
to support a plaintiff’s assertion that the defendant breached the applicable duty of
care where the case involves matters of special knowledge that would not be known
by a layperson. Paul v. Lee, 568 N.W.2d 510, 513-14 (Mich. 1997), overruled on
other grounds in Smith v. Globe Life Ins. Co., 597 NW2d 28 (1999).
Merit argues, and Plaintiffs do not dispute, that Mr. Guldenstein’s injuries arose
in “a highly specialized environment, which no ordinary layperson could reasonably
be expected to have any familiarity with.” (Merit’s Br. in Supp. of Mot. at 5, ECF
No. 36 at Pg ID 175.) Merit continues: “[W]hether the design, construction,
maintenance, or operations of the Hartland facility were in violation of industry
standards or were otherwise dangerous would require expert evaluation and
testimony.” (Id.) Plaintiffs nevertheless argue in response that expert evaluation and
testimony are unnecessary because MIOSHA’s findings establish that Merit, by
violating two MIOSHA regulations, breached industry standards.
“In Michigan, a violation of a statute creates a rebuttable presumption of
negligence while the violation of an ordinance or administrative regulation constitutes

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evidence of negligence.”3 Candelaria v. BC Gen. Contractors, Inc., 600 N.W.2d 348,
356 n. 5 (Mich. Ct. App. 1999) (citation omitted); see also Beals, 331 N.W.2d at 704
(citations omitted). Case law reflects, however, that such violations provide evidence
of negligence only where the statute, ordinance, or regulation created a duty upon the
defendant running in favor of the plaintiff. Kennedy v. Great Atl. & Pac. Tea Co., 737
N.W.2d 179, 186 (Mich. Ct. App. 2007) (MIOSHA and it regulations apply only to
the relationship between employers and employees and therefore do not create duties
that run in favor of third parties); Campbell v. Nationstar Mortg., 611 F. App’x 288,
299 (6th Cir. 2015) (finding that while the allegations that the defendant failed to
comply with federal regulations may provide evidence of negligent conduct under
Michigan law, the plaintiff must still show that the regulations impose a duty of care
on the defendant owed to borrowers, such as the plaintiff); see also Hardaway v.
Consol. Paper Co., 114 N.W.2d 236, 239 (Mich. 1962) (“It is elementary law in this
state that violation of a statute is evidence of negligence per se. The sole question in
this case is whether or not the statute relied upon applied to the defendant.”); Todd v.
Rent-A-Ctr., No. 295370, 2011 WL 240709, at *1 (Mich. Ct. App. Jan. 25, 2011)
(unpublished) (citing Longstreth v. Gensel, 377 N.W.2d 804, 812 (1985))
(“[V]iolation of a statute only constitutes violation of a duty to a plaintiff under
limited circumstances, such as when the statute was intended to protect a particular

“Michigan does not adhere to the doctrine of negligence per se.” Campbell
v. Nationstar Mortg., 611 F. App’x 288, 299 (6th Cir. 2015) (citing Zeni v.
Anderson, 243 N.W.2d 270, 280-82 (Mich. 1976)).
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class of persons to which the plaintiff belonged or to protect against the particular
kind of harm that occurred.”). As the Michigan Supreme Court has expressed:
[A] court may in effect excuse an individual from the
consequences of violating a statute. For example, the court
may find the statute’s purpose was not to protect the person
allegedly injured, or, even if it was, that the harm suffered
was not what the Legislature designed the statute to do.
Zeni v. Anderson, 243 N.W.2d 270, 280 (Mich. 1976). Relying on Beals and
Hardaway, Plaintiffs contend that Merit’s purported MIOSHA violations are evidence
that it breached a duty owed to Mr. Guldenstein.
In Beals, the Michigan Supreme Court addressed inter alia the trial court’s
refusal to grant the defendant’s motion for a directed verdict. 331 N.W.2d at 480.
The Michigan Court of Appeals found the trial court’s ruling to be in error, holding
that the plaintiff offered no supporting evidence on the issue of the defendant’s breach
of a duty to provide the plaintiff reasonably safe premises. Beals, 296 N.W.2d at 837.
The court first concluded that the defendant had no duty to warn the plaintiff of the
icy condition on a roof, which caused the plaintiff’s fall and injuries, because those
conditions were obvious. Id. at 835. The court then concluded that the plaintiff’s
evidence of various Michigan Department of Labor safety regulations promulgated
pursuant to MIOSHA failed to prove the breach of a duty owed to him because they
were inapplicable to the roof from which the plaintiff fell. Id. at 835-36. The
Michigan Court of Appeals further noted that it was inclined to hold that the

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regulations did not apply to the case where an employee of an independent contractor,
rather than an employee of the premise’s owner, is injured. Id. at 836 n.2.
The Michigan Supreme Court reversed, finding the Michigan Court of
Appeals’ conclusion that there was no duty to warn the plaintiff of the icy conditions
directly contrary to prior Michigan Supreme Court precedent. Beals, 331 N.W.2d at
704. The Court went on to state in dicta: “Further support for the plaintiff’s case was
provided by evidence tending to show the violation of two safety regulations issued
by the Michigan Department of Labor.” Id. The Court did not analyze the language
or purpose of those regulations in responding to the defendant’s argument that they
were inapplicable to employees of independent contractors, but simply rejected the
“argument on the authority of Hardaway …”4 Id.
In Hardaway, however, the Michigan Supreme Court reviewed the applicable
safety statute to determine whether it was limited to the protection of employees of the
owner of the premises or embraced independent contractors, such as the plaintiff. 114
N.W.2d at 239. As the Hardaway Court explained: “It is elementary law in this state
that violation of a statute is evidence of negligence per se. The sole question in this
case is whether or not the statute relied upon applied to the defendant.” Id. This is
consistent with the Supreme Court’s later statement in Zeni v. Anderson, 243 N.W.2d
270 (Mich. 1976), that “[a] court may in effect excuse an individual from the

After cursorily rejecting this argument by the defendant, the Court
discussed in more detail its reasons for concluding that the regulations did apply to
the roof from which the plaintiff fell. Beals, 331 N.W.2d at 704-05.
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consequences of violating a statute” if the court “find[s] the statute’s purpose was not
to protect the person allegedly injured …” Id. at 280; see also Todd, 2011 WL
240709, at *1 (citing Longstreth, 377 N.W.2d at 812) (“[V]iolation of a statute only
constitutes violation of a duty to a plaintiff under limited circumstances, such as when
the statute was intended to protect a particular class of persons to which the plaintiff
belonged or to protect against the particular kind of harm that occurred.”).
Having read the statute at issue in Hardaway, the Court concluded that it
imposed duties upon the defendant running “to all who are legally upon the
premises[.]” 114 N.W.2d at 239 (emphasis added). The Beals Court neglected to
engage in this necessary analysis. Yet, Michigan courts repeatedly have held that
MIOSHA and its regulations “are applicable to employers and employees only.”
Davis v. Link, Inc., 489 N.W.2d 103, 105 (Mich. Ct. App. 1992) (emphasis added)
(citing Zalut v. Andersen & Assoc., Inc., 463 N.W.2d 236, 239 (Mich. Ct. App.
1990)); Kennedy, 737 N.W.2d at 186 (citing Davis).
Thus, this Court concludes that Merit’s purported MIOSHA violations are not
evidence of its alleged breach of a duty to Mr. Guldenstein. As such, Plaintiffs in fact
lack evidence to establish the necessary elements of Mr. Guldenstein’s premises
liability and negligence claims.
Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment is

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GRANTED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: July 31, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, July 31, 2017, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager

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