                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 06a0719n.06
                              Filed: October 4, 2006

                                                No. 05-1823

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


MICHAEL BARTEE and DIXIE BARTEE,                       )
                                                       )
        Plaintiffs-Appellants,                         )
                                                       )
v.                                                     )    ON APPEAL FROM THE UNITED
                                                       )    STATES DISTRICT COURT FOR THE
SKANSKA    USA                   BUILDING,             )    EASTERN DISTRICT OF MICHIGAN
INCORPORATED,                                          )
                                                       )
        Defendant-Appellee.                            )



        Before: DAUGHTREY and COOK, Circuit Judges, and COLLIER,* District Judge.


        PER CURIAM. The plaintiffs, Michael and Dixie Bartee, appeal from the district

court’s order granting summary judgment to the defendant, Skanska USA Building, Inc.,

in this personal injury action arising from burns suffered by Michael Bartee while working

with a defective acetylene torch on a school building expansion project for which Skanska

was construction manager. Michael Bartee was not employed by Skanska, however, but

by Cadillac Iron, Inc., which had a separate and independent contract with the school

district. The plaintiffs nevertheless sued Skanska, setting out a number of theories of

liability, including active or direct negligence, nuisance per accidens, and agency. The

district court granted summary judgment in favor of the defendant, finding either that the

        *
         The Hon. Curtis L. Collier, United States District Judge for the Eastern District of Tennessee, sitting
by designation.
No. 05-1823
Bartee v. Skanska USA Building, Inc.

legal theory advanced by the plaintiffs was not recognized under state law or that the facts

did not support the allegations in the complaint. We find no error and affirm.


       We gather from our reading of the plaintiffs’ brief and counsel’s oral argument that

the main complaint on appeal is the district court’s failure to send the case to the jury,

thereby “depriv[ing] the plaintiffs of their day in Court.” Try as they might, however, the

plaintiffs were not able to raise a material issue of disputed fact that would have supported

a basis recognized by state law on which to send the case to trial. The district court found,

for instance, that the defendant could not be considered liable for the negligent

employment of Cadillac Iron because “Michigan has not recognized a duty requiring an

employer to exercise care in the selection and retention of an independent contractor.”

Reeves v. K-Mart Corp., 582 N.W.2d 841, 846 (Mich. App. 1998). The district court further

found that the defendant was not liable for failure to warn the plaintiff of hazardous

equipment of which it was aware, because the undisputed proof was that Skanska was not

aware of the hole in the acetylene torch that caused the fire and resulted in Michael

Bartee’s injury, and there was no evidence that any Skanska employee should have been

aware of a defect in equipment that, under the contract, was owned and maintained by

Cadillac Iron. The district court also discounted the plaintiffs’ nuisance theory, because

there was no proof that Skanska owned or controlled the acetylene torch or created the

hole in the torch that caused the fire. Indeed, it was a Cadillac Iron supervisor who, when

informed of the hole, instructed Bartee to use the torch anyway, covering the hole tightly

with his gloved hand as he did so.     Likewise, the plaintiffs’ negligent work supervision

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No. 05-1823
Bartee v. Skanska USA Building, Inc.

claim against Skanska was held to fail because the evidence did not show that the injury

was the result of “readily observable and avoidable danger . . . that created a high degree

of risk to a significant number of workmen . . . in a common work area,” a recognized

exception to the general Michigan rule that a contractor cannot be held liable for the

negligence of independent contractors and their employees. Ormsby v. Capital Welding,

684 N.W.2d 320, 326 (Mich. 2004). Finally, the plaintiffs’ agency theory, based on

respondent superior, was found to be untenable because the two companies, Skanska and

Cadillac Iron, had individual contracts with the premises owner and there was no proof that

either one was the agent of the other.


       Having had the benefit of oral argument, and having studied the record on appeal

and the briefs of the parties, we are not persuaded that the district court erred in dismissing

the complaint. Because the reasons why judgment should be entered for the defendant

have been fully articulated by the district court, the issuance of a detailed opinion by this

court would be duplicative and would serve no useful purpose. Accordingly, we AFFIRM

the judgment of the district court upon the reasoning set out by that court in its order and

opinion dated May 11, 2005.




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