                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0436n.06
                             Filed: June 27, 2006

                                           No. 05-1691

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


ROBERT DALE BYRUM and SUE ANNE                   )
BYRUM,                                           )
                                                 )
       Plaintiffs-Appellants,                    )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
INTERNATIONAL PAPER COMPANY and                  )    WESTERN DISTRICT OF MICHIGAN
SECURITAS SECURITY SERVICES USA,                 )
INC.,                                            )
                                                 )
       Defendants-Appellees.                     )




       BEFORE: SUHRHEINRICH, GILMAN, and ROGERS, Circuit Judges.


       ROGERS, Circuit Judge. Robert and Sue Byrum appeal the district court’s grant of

summary judgment in favor of International Paper Company (International) on Robert Byrum’s

negligence claim. Byrum, an employee of an independent contractor hired by International to

provide security and other services, sued International after he suffered a heart attack during a

firefighting training session organized and run by International. Byrum raises two issues on appeal.

He argues first that, by ordering him to attend the training with the knowledge that he had not had

a physical examination, International voluntarily assumed a duty to ensure that he was fit to

participate. Second, Byrum argues that genuine issues of material fact exist as to his claims that
No. 05-1691
Byrum v. International Paper Co.

International negligently failed to supervise, provide a safe work site, and warn about the dangers

of its firefighting training. We affirm.


                                           I. Background


       Securitas Security Services, USA, Inc. (Securitas) is an independent contractor that provided

emergency response and security services for International at International’s Quinnesec, Michigan,

paper mill. The obligations of both Securitas and International were governed by a contract dated

February 14, 2002.1      The contract provided, among other things, that Securitas had “full

responsibility for supervising and directing its own employees.”


       In addition to the February 2002 contract, an undated Emergency Response Services

memorandum (Services Memorandum) further delineated Securitas’s obligations with respect to its

employees. The Services Memorandum provided that Securitas was responsible for, at its own

expense, interviewing, investigating, drug screening, and physically examining its new employees.

All plant personnel were required to undergo a post-offer physical examination. In addition, all

“plant protection officers” were required to have a “health assessment” before participating in

International’s Respiratory Protection Program, fire brigade, HAZMAT team, or rescue team.


       The Services Memorandum obligated Securitas to submit to International a copy of each

employee’s medical certificate “showing that the minimum physical standards have been met.”


       1
       The contract names International and Pinkerton’s Inc. as the parties, but Securitas later
purchased Pinkerton’s.

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Byrum v. International Paper Co.

However, Dennis Doll, Byrum’s supervisor at Securitas, testified in his deposition that Securitas

generally did not provide the medical certificates to International. Securitas notified International

only if an employee failed a physical examination.


        Despite the Service Memorandum’s requirement that Securitas conduct a physical

examination of each new employee, Securitas and International later agreed that Securitas could

postpone the examinations, because of their expense, until an employee reached “Level II”

certification. Securitas certified its employees at different levels according to their training and

experience. An employee was eligible for the first certification, Level I, after two years of

employment and after the employee became familiar with plant procedures regarding security, fire

systems, and hazardous materials. Level II certification required emergency medical training. Level

III certification required firefighting training and, once reached, enabled an employee to participate

in Securitas’s fire brigade at the mill. Even with the agreement to delay the physical examinations,

Securitas employees were still required to have an examination before participating in the

firefighting training.


        Securitas hired Byrum in April 2001. Pursuant to its agreement to delay the physical

examinations, Securitas did not provide Byrum with a post-offer examination. Byrum initially

worked as a reserve officer at the rear gate of the mill, letting trucks in and out. After six months,

Securitas promoted Byrum to plant protection officer. As a plant protection officer, Byrum

monitored vehicles entering and leaving the mill and inspected safety equipment.




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Byrum v. International Paper Co.

       On April 10, 2002, Byrum suffered a heart attack while participating in a firefighting training

exercise organized by International and held at Northeast Technical College in Green Bay,

Wisconsin. The district court accurately described the events surrounding Byrum’s injury:


       International coordinated a fire training exercise for International and Securitas
       employees in Green Bay, Wisconsin. Jim Rose, an International employee, designed
       and supervised the program. Although Byrum had not reached Level I certification
       (and had not undergone a physical examination), he attended the training exercise.
       The parties dispute whether International required Byrum's attendance or whether
       Byrum himself volunteered to attend the training. Dennis Doll, Byrum’s direct
       supervisor with Securitas, testified that 2-3 days prior to the training exercise, Byrum
       requested permission to attend the training exercise. . . . Byrum offers his own
       deposition testimony in which he states Jim Rose mandated that he attend the fire
       fighting training exercise.


       Nevertheless, Byrum attended the program. The training required performance of
       various fire fighting tasks while wearing full fire fighting gear and a self-contained
       breathing apparatus. After completing the second training exercise of the day,
       Byrum was resting outside the training facility when he began vomiting and feeling
       a tightness in his chest. An ambulance was summoned and he was taken to a local
       hospital where the medical staff determined that he had suffered a heart attack. While
       receiving treatment, Byrum went into cardiac arrest which required CPR,
       defibrillation, and ultimately, coronary bypass surgery.


Byrum v. Int’l Paper Co., No. 2:04-CV-101, 2005 WL 1189607, at *2 (W.D. Mich. May 19, 2005)

(citations to the record omitted).


       Byrum brought suit against International in a Michigan state court. In his complaint, Byrum

asserted that International had been negligent in a number of ways, including: failing to adequately

supervise the firefighting training session, failing to provide a safe work site, failing to warn of the

hazards associated with the equipment and training, and failing to require a physical examination

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Byrum v. International Paper Co.

before allowing him to participate in the training.2 The complaint also sought damages for the “loss

of the services, love, companionship, and consortium” sustained by Byrum’s wife, Sue Ann Byrum.

International removed the case to the federal district court below.


       International filed a motion for summary judgment, and the district court granted summary

judgment in favor of International in May 2005. See id. at *1. The district court first held that

“[a]lthough Byrum asserted in his complaint that International failed to provide a safe work

environment, negligently supervised the training exercise, and failed to warn him of hazardous

equipment, he has not produced any evidence supporting these allegations.” Id. at *3. Regarding

Byrum’s claim that International negligently failed to provide him a physical examination, the

district court ruled that, as a matter of law, International owed Byrum no such duty. Id. at *7.

International owed no duty under the “inherently dangerous activity” doctrine because, under

Michigan law, the doctrine does not apply when the injured party is the employee of an independent

contractor. Id. at 4-5. In addition, the court ruled that International had not voluntarily assumed the

duty to provide a physical examination by organizing and running the training because (1) the

contract between International and Securitas expressly placed the duty on Securitas; (2) Byrum

failed to allege a duty owed by International that was separate and distinct from the contract between




       2
         International filed a third-party complaint against Securitas seeking indemnification
pursuant to the parties’ contract. However, after the district court granted summary judgment in
favor of International as to Byrum’s claim, the court granted summary judgment in favor of
Securitas. See Byrum, 2005 WL 1711188, at *2. Because Byrum’s negligence claim against
International failed, International had not suffered any loss that would require reimbursement under
the indemnification provision. Id.

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Byrum v. International Paper Co.

International and Securitas, as required by Fultz v. Union-Commerce Association, 683 N.W. 2d 587

(Mich. 2004); and (3) Michigan Administrative Code r. 408.17310(2) placed the duty to provide an

examination on Securitas as Byrum’s employer. Byrum, 2005 WL 1711188, at *6-7.


       Byrum now appeals, raising two arguments.           First, Byrum argues that International

voluntarily assumed a duty to ensure that he was physically capable of participating in its

firefighting training when International ordered him to attend knowing that he had not undergone

a physical examination. Second, Byrum argues that the district court erred by ruling that no genuine

issues of material fact existed as to whether International negligently failed to supervise, provide a

safe work site, and warn about the dangers of the training.


                                            II. Analysis


A.     Standard of Review


       This court reviews a district court’s grant of summary judgment de novo. Johnson v. Karnes,

398 F.3d 868, 873 (6th Cir. 2005). Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue of material fact and the moving party is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c). The facts, as well as any inferences that can be drawn from

them, must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether a factual issue is

genuine, a court must decide “whether reasonable jurors could find by a preponderance of the

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Byrum v. International Paper Co.

evidence that the plaintiff is entitled to a verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986).


B.     Duty to Ensure That Byrum Had a Physical Examination


       International did not voluntarily assume a duty to ensure that Byrum was physically capable

of participating in its firefighting training because, given Securitas’s agreement to provide physical

examinations and the absence of any evidence that International knew that Byrum had not had an

examination, it was not foreseeable that Byrum would suffer injury. Whether a duty exists is a

question of law for the court to decide. Harts v. Farmers Ins. Exch., 597 N.W.2d 47, 50 (Mich.

1999). Generally, an employer of an independent contractor may not be held liable in negligence

to the employees of the contractor, Bosak v. Hutchinson, 375 N.W.2d 333, 338 (Mich. 1985); the

independent contractor alone is responsible for job safety, Funk v. Gen. Motors Corp., 220 N.W.2d

641, 644-45 (Mich. 1974) (stating the general rule in construction cases while recognizing

exceptions), overruled in part on another ground by Hardy v. Monsanto Enviro-Chem Sys., 323

N.W.2d 270, 273 (Mich. 1982). There are, however, two exceptions to this rule: (1) where the

employer retained control of a “common work area,” Ormsby v. Capital Welding, Inc., 684 N.W.2d

320, 323 (Mich. 2004), or (2) where the contractor’s work involves an “inherently dangerous

activity,” DeShambo v. Anderson, 684 N.W.2d 332, 335 (Mich. 2004).


       The district court in this case ruled that DeShambo precluded Byrum, as an employee of the

independent contractor, from relying on the inherently dangerous activity exception, and Byrum



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does not challenge that decision on appeal. Instead, Byrum argues that International is liable under

the separate common-law theory that, if “one voluntarily undertakes to perform an act, having no

prior obligation to do so, a duty may arise to perform the act in a nonnegligent manner.” Fultz v.

Union-Commerce Assocs., 683 N.W.2d 587, 591 (Mich. 2004). Byrum argues that International

voluntarily assumed a duty to ensure that he had a physical examination once it ordered him to

attend its firefighting training with the knowledge that he had not had an examination.3


        Byrum’s framing of the duty is slightly different from that of International and the district

court. The district court held, and International now argues, that International did not voluntarily

assume a duty to provide Byrum with a physical examination because, among other reasons, the

parties and Michigan law placed the duty upon Securitas. See Byrum, 2005 WL 1711188, at *6-7.

This is not the same duty asserted by Byrum. Instead, Byrum argues that International had a duty

to ensure that he was physically qualified for its firefighting training because it ordered him to attend

with the knowledge that he had not had a physical examination.


        3
          We assume that such a duty can be voluntarily assumed under Michigan law. A recent
decision of the Michigan Court of Appeals questions whether an employer of an independent
contractor can voluntarily assume a duty toward the employees of the contractor, given the general
rule of nonliability and the carefully crafted exceptions. See Martel v. J.M. Olson Co., No. 263670,
2005 WL 3479819, at *3 (Mich. Ct. App. Dec. 20, 2005) (“[C]ases . . . generally limit the liability
of general contractors to the common work area exception. Although we do not reach the question
whether a general contractor may ever voluntarily assume a heightened duty under such cases, the
cases reflect the courts’ careful consideration of which duties the law or society has concluded a
general contractor should owe a subcontractor’s employees.”). However, in another case, Squires
v. General Motors Corp., the court appears to have imposed such a duty. 427 N.W.2d 630, 633
(Mich. Ct. App. 1998) (holding that General Motors owed a duty to the employees of its independent
contractor because the employees were injured as a result of GM’s convincing the contractor to
install a new production system).

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Byrum v. International Paper Co.

       Byrum’s claim nevertheless fails because there is no evidence that International knew that

Byrum had not had a physical examination, and thus it was not foreseeable that Byrum would suffer

injury from the firefighting training as a result of his heart condition. Michigan case law does not

outline the exact elements required to prove the voluntary assumption of a duty, but in deciding the

existence of a duty courts generally consider the foreseeability of the risk, the relationship between

the parties, and any other policy considerations that may be relevant. See Buczkowski v. McKay, 490

N.W.2d 330, 333-34 (Mich. 1992). In this case, if International knew that Byrum had not had a

physical examination, then Byrum’s injury could have been foreseeable because firefighting training

is a demanding activity that could foreseeably harm someone with a pre-existing heart condition.

Thus, International could have a duty to ensure that Byrum had an examination if it knew that he

had not already had one. See Squires v. Gen. Motors Corp., 427 N.W.2d 630, 633 (Mich. Ct. App.

1998) (holding that GM owed a duty to the employees of its independent contractor because it

convinced the contractor to install a new production system knowing that its own employees had

been injured by the same system).


       But Byrum presents no evidence that International knew that he had not had an examination.

It is undisputed that Securitas notified International only if an employee failed an examination, and

thus International would not have known whether Byrum had passed an examination. Byrum argues

that


       International Paper required [a medical] certification only after a plant protection
       officer achieved Level II certification. Here, it knew that Mr. Byrum had not even
       been certified as a Level I plant protection officer on the day of the training session

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Byrum v. International Paper Co.

       and therefore knew no such physical exam had been or was required to by
       undertaken by [Securitas].


If, as Byrum contends, International knew that Byrum was not certified at Level II, then, taking the

facts in the light most favorable to Byrum, International also could have known that he had not had

an examination because it agreed that Securitas could delay the examinations until employees

reached Level II. However, Byrum does not offer any evidence to support his assertion that

International knew that he was not a Level II employee. Because Byrum did not provide such

evidence, we assume that International was unaware that Byrum had not received a physical

examination.


       Without the knowledge that Byrum had not had an examination, it was not foreseeable to

International that Byrum would suffer a heart attack because the Services Memorandum expressly

placed the duty to provide a physical examination upon Securitas. Although, taking the facts in the

light most favorable to Byrum, we must assume that International ordered Byrum to attend its

training, International still relied upon Securitas to provide the examinations. Because Byrum’s

injury was not foreseeable, no duty arose for International to exclude Byrum from the firefighting

exercise. See Valcaniant v. Detroit Edison Co., 679 N.W.2d 689, 692 (Mich. 2004) (holding that,

because the plaintiff’s injury was not foreseeable, there was no need for the court to consider the

other factors bearing on the existence of a duty).


       This conclusion is supported by a recent Michigan Court of Appeals decision. In Whiteye

v. Lanzo Construction Co., a city hired an engineering firm as a consultant for its underground water

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Byrum v. International Paper Co.

main project. Nos. 258095, 258090, 2005 WL 3506901, at *1 (Mich. Ct. App. Dec. 22, 2005). The

consultant recommended that the city award the project to Lanzo, an independent contractor. Id.

Plaintiff’s decedent, an employee of Lanzo, was subsequently killed when a trench wall collapsed

on him. Id. Plaintiff sued the consultant, alleging among other things that it had been negligent in

failing to stop Lanzo from using unsafe construction methods. Id. The Michigan Court of Appeals

affirmed the trial court’s grant of summary judgment in favor of the consultant, holding that the

consultant had no duty to inspect the work site for safety issues because the contract expressly

declared Lanzo to be responsible for safety. Id. at *5. While the consultant assumed a duty in the

construction contract to inspect for technical issues, its duty to inspect went no further. Id.

Similarly, because the Services Memorandum expressly placed the responsibility for physical

examinations on Securitas, International had no such duty absent knowledge that Byrum had not had

an examination.


       Byrum’s remaining arguments to prove the existence of a duty are without merit. First,

Byrum argues that International should be “estopped” from relying on the Services Memorandum

because International later waived the requirement that Securitas provide post-employment physical

examinations. Byrum provides no legal support for this apparently equitable argument, and in any

event this argument fails because International still required that Securitas provide the examinations

before employees could participate in the firefighting training.        Second, Byrum argues that

International should have foreseen that he could suffer a heart attack because he had fallen to his

knees from exertion in an earlier firefighting training session. This argument also fails because,



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Byrum v. International Paper Co.

first, Byrum presents no evidence that falling to one’s knees necessarily implies that the one has a

dangerous heart condition (e.g., it could just be fatigue) and, second, Securitas was nevertheless still

responsible for providing the physical examination (and, for all International knew, could have

provided Byrum with an examination since the earlier incident).


C.      International’s Failure to Supervise, Provide a Safe Work Site, and Warn of the
        Dangers Associated with Firefighting Training.


        Byrum argues that the district court erred by ruling that no genuine issues of material fact

existed as to whether International negligently failed to supervise, provide a safe work site, and warn

about the dangers of its firefighting training, but he never provided any evidence to support these

claims in his response to International’s motion for summary judgment. Nor does he point to any

evidence on appeal. Thus, the district court properly granted summary judgment as to these claims.


                                           III. Conclusion


        For the foregoing reasons, we affirm the judgment of the district court.




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