Plaintiff struck by metal prevails on duty question

By Lee Dryden
BridgeTower Media Newswires
DETROIT — A case involving the duty of care that a contractor owes to a third party will continue after a ruling by the U.S. Court of Appeals for the Sixth Circuit.

In Leone v. BMI Refractory Servs. Inc. (MiLW No. 01-98035, 6 pages), a piece of scrap metal seriously injured plaintiff Filippo Leone while he was on the job. He sued the contractor that his employer hired to clear debris.

The U.S. District Court for the Eastern District of Michigan at Detroit granted summary judgment to the contractor, as it owed “no duty of care to Leone because it created no new hazard.”

The appeals court reversed nd remanded the case, agreeing with the plaintiffs’ argument that the lower court interpreted the law too narrowly. The published Sixth Circuit opinion was written Judge Deborah L. Cook, joined by Judge Ronald Lee Gilman and Judge Richard Allen Griffin.

The suit involves a degasser, a large vat that Leone’s employer, A.K. Steel, used to extract gas impurities from molten steel, according to the Sixth Circuit opinion. It was lined with layers of brick and the innermost layer — called the face brick — deteriorates with use and requires occasional replacement. It includes an alloy chute near the top that allows ingredients to be added to the molten steel during processing.

“A.K. Steel hired BMI Refractory Services to perform a ‘tearout’ of the degasser’s deteriorated face brick,” according to the opinion. “Although the contract did not include any work on the alloy chute, a BMI employee testified that his team would dislodge loose bricks or slag from the vat’s interior — including the chute — to ensure that nothing could fall on workers. He did not notice any loose slag on the chute during the tearout.”

Leone was assigned to reline the degasser with new face brick. He and his crew did not see any loose slag on the chute during several days of work.

“Nonetheless, twenty-one days after BMI completed its one-day job, a forty-pound piece of slag fell and struck Leone, injuring his back and right knee. Leone claims that the slag detached from the alloy chute, although he has no reason to believe that the slag was loose when BMI conducted its tearout,” the opinion stated.

“BMI theorizes that the slag may have been secure when BMI left the site but that a variety of ‘vibrational forces from within the AK Steel mill’ may have shaken it loose afterwards. 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 argued in his suit that BMI negligently failed to remove the slag that struck him. His wife made a derivative claim for loss of consortium. They appealed after the district court ruled for BMI.

The plaintiff argued that the district court erroneously interpreted Michigan precedent when it took “one example of how a contracting party may be said to create a duty in tort — by acting in such a way as to create a new hazard or a new situation of peril — and it made that one example an absolute essential [element] of the plaintiffs’ claim.”

The appeals court agreed. “Although a contractor’s creation of a new hazard can trigger a duty to third parties, the Michigan cases nowhere state that it is the only way that such a duty might arise. Instead, a contractor can be liable to a third party if ‘any legal duty independent of the contract existed,’” the opinion stated, citing Loweke v. Ann Arbor Ceiling & Partition Co. from 2011.

“Leone aptly posits that, even if BMI created no new hazard, it could still owe him a duty on some other basis.”

Michigan common law provides ample foundation for a duty, according to the opinion which cites Clark v. Dalman from 1967 in which the Michigan Supreme Court described “the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others.”

“Michigan law incorporates the voluntary-assumption-of-duty doctrine, a ‘simple idea that is embedded deep within the American common law of torts ... : if one ‘having assumed to act, does so negligently,’ then liability exists as to a third party for ‘failure of the defendant to exercise care and skill in the performance itself,’” the opinion stated.

“When BMI performed on its contract — especially when it inspected the alloy chute for any loose slag — it ‘assumed to act.’ It thereby took on ‘a duty ... to perform the act in a nonnegligent manner,’” the opinion stated, citing Fultz v. Union-Commerce Assocs. from 2004.

“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.”

BMI noted Leone’s statement that he has no reason to believe that the slag that struck him was loose when BMI completed its work.

“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,” the opinion stated.