           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Hunley, et al. v. DuPont Automotive         No. 01-2733
        ELECTRONIC CITATION: 2003 FED App. 0304P (6th Cir.)
                    File Name: 03a0304p.06                                                    _________________
                                                                                                   COUNSEL
UNITED STATES COURT OF APPEALS
                                                                          ARGUED: Donnelly W. Hadden, Ann Arbor, Michigan, for
                  FOR THE SIXTH CIRCUIT                                   Appellants. Raymond Michael Ripple, E.I. DU PONT DE
                    _________________                                     NEMOURS AND COMPANY, Wilmington, Delaware, for
                                                                          Appellee. ON BRIEF: Donnelly W. Hadden, Ann Arbor,
 JERRILYN HUNLEY; JEROME           X                                      Michigan, Patrick D. Ball, Mount Clemens, Michigan, for
 HUNLEY,                            -                                     Appellants. Raymond Michael Ripple, Donna L. Goodman,
                                                                          E.I. DU PONT DE NEMOURS AND COMPANY,
          Plaintiffs-Appellants, -                                        Wilmington, Delaware, Robert S. Krause, DICKINSON,
                                    -  No. 01-2733
                                    -                                     WRIGHT, PLLC, Detroit, Michigan, for Appellee.
            v.                       >
                                    ,                                                         _________________
                                    -
 DU PONT AUTOMOTIVE,                -                                                             OPINION
 Division of E.I. DuPont de         -                                                         _________________
 Nemours and Co., Inc.,             -
           Defendant-Appellee. -                                            ALGENON L. MARBLEY, District Judge. This is a
                                    -                                     negligence action that was removed to federal court based on
                                   N                                      diversity jurisdiction. Plaintiffs-Appellants, Jerrilyn Hunley,
       Appeal from the United States District Court                       individually and as guardian of the estate of Jerome Hunley,
      for the Eastern District of Michigan at Detroit.                    and Jerome Hunley, brought suit against Defendant-Appellee,
   No. 00-72043—Nancy G. Edmunds, District Judge.                         DuPont Automotive, Division of E.I. DuPont de Nemours and
                                                                          Co., Inc., for harm incurred by Jerome Hunley after his
                     Argued: June 17, 2003                                exposure to a large paint spill in the DuPont Automotive plant
                                                                          in which he was working as a security guard. Plaintiffs-
             Decided and Filed: August 25, 2003                           Appellants now appeal the district court’s ruling granting
                                                                          summary judgment to Defendant-Appellee. The district court
        Before: BOGGS and GILMAN, Circuit Judges;                         exercised jurisdiction over this matter pursuant to 28 U.S.C.
                 MARBLEY, District Judge.*                                § 1332. This Court’s appellate jurisdiction is proper under 28
                                                                          U.S.C. § 1291.
                                                                            For the reasons discussed below, this Court finds that the
                                                                          district court properly granted summary judgment to
                                                                          Defendant-Appellee, and, therefore, AFFIRMS the judgment
                                                                          of the district court.
    *
     The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.

                                  1
No. 01-2733            Hunley, et al. v. DuPont Automotive                3    4       Hunley, et al. v. DuPont Automotive                 No. 01-2733

 I. FACTUAL AND PROCEDURAL BACKGROUND                                             DuPont contracts with Pinkerton, a private security
                                                                               company, to provide security at the plant. At the time of the
                         A. Factual History                                    spill, Plaintiff-Appellant Jerome Hunley (“Hunley”) was
                                                                               employed as a Pinkerton security guard at the DuPont plant
   Defendant-Appellee, DuPont Automotive, Division of E.I.                     in Mount Clemens. Pinkerton security guards are obligated
DuPont de Nemours and Co., Inc. (“DuPont”), operates a                         to follow Pinkerton’s Site Post Orders. Those orders specify
paint factory in Mount Clemens, Michigan. At approximately                     that, in the event of a spill, Pinkerton security guards are to
9:34 p.m., on January 27, 1997, DuPont suffered one of the                     provide a head count report to the fire brigade captain.2 The
largest paint spills in the history of the plant. At that time, a              Pinkerton Site Post Orders also expressly state: “Security
DuPont employee was in the process of filling a shipping                       does not respond to the scene of a spill.”
container with paint to ship to an automobile manufacturer.
As she was moving the container toward a holding tank, she                        According to Plaintiffs-Appellants, upon Hunley’s arrival
struck the bottom of the tank with the top of the container,                   at work on the evening of the spill, he was told by his
thereby dislodging the filling valve of the tank. Within the                   supervisor, Bill Maynard, to deliver the head-count report to
next few minutes, the tank emptied its 2400 gallons of paint                   the fire brigade captain. Hunley printed out the report, and
onto the worker and the surrounding work area.                                 then delivered it to the fire brigade captain, whom he found
                                                                               in the area of the spill. Hunley claims that he gained access
   DuPont mandates that any chemical spill of more than one-                   to the area of the spill by entering through an open door.
quarter cup necessitates an emergency response. Therefore,                     When he entered the area of the spill to deliver the report, he
at 9:35 p.m. on the evening of the spill, DuPont employees                     was not wearing protective clothing, nor was he breathing
initiated emergency procedures. In particular, a DuPont fire                   through a respirator; none of these protective items had been
brigade member working in the production area sounded the                      issued to him by DuPont. The fire brigade members in the
alarm, calling into action a plant-wide emergency response.                    vicinity of the spill, however, were all wearing protective
Upon hearing the alarm, DuPont’s internal fire brigade                         clothing, including masks.3
members donned their protective gear and entered the spill
area. According to DuPont, within minutes, all non-fire
brigade employees had evacuated the production area and
reported to their assigned evacuation sites, closing the fire
doors between the production area and the shipping                             doo r that had been left open.
warehouse as they left. One door, however, was left open,                          2
such that non-emergency response employees were able to                               Although there was some dispute between the parties regarding the
gain entrance to the area of the spill.1                                       nature of the head count repo rt provided by Pinkerto n Security, it appears
                                                                               that the purpo se of the report is to ensure that all non-emerge ncy response
                                                                               emp loyees signed in to the building at the time of the emergency are
                                                                               accounted for.
    1
      DuPo nt asserts that all doors to the area of the spill were shut. As        3
this matter is before the Court on appeal from the district court’s order            The Court reco gnizes that DuPo nt asserts that Hunley had been
granting summary judgment to the Defendant-Appellee, however, the              issued protective clothing, but that he was simply not wearing it at that
Court views the facts in the light most favorable to P laintiffs-Appellants.   time. Hunley, however, asserts that the special clothing that he was
Therefore, the Court presumes for the present purpo ses that the Plaintiffs-   provided by DuPo nt would not have protected him from the spill, and was
Appellants are correct that Hunley entered the area of the spill through a     not of the same type as that worn by the fire brigad e members.
No. 01-2733          Hunley, et al. v. DuPont Automotive              5    6     Hunley, et al. v. DuPont Automotive          No. 01-2733

   Hunley states that, shortly after delivering the report to the          spill by being in the area without protective gear while all
fire captain, he began to have “rushing thoughts,” which he                others in the vicinity of the spill were protected by special
describes as “too many thoughts running through [his] head                 clothing and masks.
at once,” and that he also began feeling dizzy. After working
the night of the spill, Hunley went home and tried to sleep.                 Following one year of hospitalization, Hunley was tried on
While trying to sleep, however, he began hallucinating. In                 a charge of manslaughter for the death of the nineteen-year-
particular, he claims that he heard “whale sounds” and saw                 old woman in the car accident. At the conclusion of the trial,
“upside down people.”           Hunley then drove to his                   he was found guilty but mentally ill. He is currently
grandmother’s home, thinking that would help calm him.4                    incarcerated, serving a term of four to fifteen years.

  On the drive back home from his grandmother’s house,                                        B. Procedural History
Hunley’s hallucinations continued. In response to one of the
hallucinations, Hunley began driving his truck at speeds                     Plaintiffs-Appellants originally filed this case in the Circuit
estimated to be between sixty and ninety miles per hour                    Court for the County of Macomb on January 28, 2000.
against rush hour traffic in Troy, Michigan. Ultimately, his               Defendant-Appellee removed the case to the United States
car became airborne, and then landed on top of the car of a                District Court for the Eastern District of Michigan on May 8,
nineteen-year-old woman, who was pronounced dead at the                    2000, on the basis of diversity of citizenship. On
scene of the accident. Immediately following the accident,                 November 28, 2001, after discovery had been completed, the
Hunley was transported to a nearby hospital, where he was                  district court issued an opinion and order granting summary
initially diagnosed with brief reactive psychosis, a temporary             judgment to Defendant-Appellee. Plaintiffs-Appellants filed
diagnosis used to explain his acute psychotic symptoms.                    their notice of appeal from that order on December 18, 2001.

  Prior to the car accident, Hunley had no recorded medical                              II. STANDARD OF REVIEW
history of mental illness, nor did he have a criminal record.
He was twenty-four years old at the time. After a series of                   The district court’s grant of summary judgment is subject
mental evaluations following the accident, Hunley was                      to de novo review by this Court. Peters v. Lincoln Elec. Co.,
ultimately diagnosed with schizophrenia, an organic mental                 285 F.3d 456, 465 (6th Cir. 2002) (citing Darrah v. City of
disease that frequently manifests itself when sufferers are in             Oak Park, 255 F.3d 301, 305 (6th Cir. 2001), and Perez v.
their late teens or early twenties. He has also been diagnosed             Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir. 1998)). Thus,
as suffering from an “acute psychotic break” accompanied by                on appeal, this Court reviews a motion for summary judgment
auditory and visual hallucinations at the time of the accident.            according to the same standard that the district court applies.
Hunley’s expert, Dr. Gerald Shiener, M.D., opines that
Hunley’s psychotic break was brought on by the stress of                      Summary judgment is appropriate “[i]f the pleadings,
knowing that he had been exposed to toxins in the area of the              depositions, answers to interrogatories, and admissions on
                                                                           file, together with the affidavits, if any, show there is no
                                                                           genuine issue as to any material fact and the moving party is
                                                                           entitled to judgment as a matter of law.” FED . R. CIV . P.
    4                                                                      56(c). The movant has the burden of establishing that there
      Apparently, one full day passed between the night of the spill and
the day that Hunley drove to his grandmother’s home. Hunley has no         are no genuine issues of material fact, which may be
recollection o f what occurred on that interv ening d ay.
No. 01-2733        Hunley, et al. v. DuPont Automotive          7    8    Hunley, et al. v. DuPont Automotive          No. 01-2733

accomplished by demonstrating that the non-moving party              includes (a) cause in fact and (b) legal, or proximate, cause;
lacks evidence to support an essential element of its case.          and (4) damages to the plaintiff. Case v. Consumers Power
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Logan         Co., 615 N.W.2d 17, 20 & n.6 (Mich. 2000). The district
v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001). In              court premised its ruling on its finding that, although DuPont
response, the non-moving party must present “significant             owed a duty to Hunley, DuPont did not breach that duty
probative evidence” to show that “there is [more than] some          through its conduct. Based on the analysis set forth below,
metaphysical doubt as to the material facts.” Moore v. Philip        we conclude that, although Plaintiffs-Appellants raised a
Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993).                     genuine issue of fact with respect to both duty and breach,
“[S]ummary judgment will not lie if the dispute is about a           summary judgment was nonetheless proper because they
material fact that is ‘genuine,’ that is, if the evidence is such    failed, as a matter of law, to establish a genuine issue of
that a reasonable jury could return a verdict for the non-           material fact as to the existence of proximate cause.
moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).                                                                        1. Existence of a Duty

   In evaluating a motion for summary judgment, the evidence           DuPont argues that Plaintiffs-Appellants have failed to
must be viewed in the light most favorable to the non-moving         establish the duty element of the prima facie case because it
party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157                had neither a duty to provide Hunley with personal protective
(1970). The non-moving party, however, “may not rest upon            equipment, nor a duty to warn him that a psychotic break was
its mere allegations . . . but . . . must set forth specific facts   a danger associated with visual exposure to a paint spill.
showing that there is a genuine issue for trial.” FED . R. CIV .     DuPont errs, however, by viewing the issue of duty so
P. 56(e); see Celotex, 477 U.S. at 324; Searcy v. City of            narrowly. Although it may not have owed these particular
Dayton, 38 F.3d 282, 286 (6th Cir. 1994). The existence of           duties to Hunley, it did have a general duty to exercise due
a scintilla of evidence in support of the non-moving party’s         care to protect its security guards, including Hunley, from
position will not be sufficient; there must be evidence on           certain dangers associated with paint spills. This duty arises
which the jury could reasonably find for the non-moving              from the relationship between DuPont and Hunley of
party. Anderson, 477 U.S. at 251; Copeland v. Machulis, 57           premises owner and invitee.
F.3d 476, 479 (6th Cir. 1995).
                                                                       Generally, “[a]n invitee, and in this case a business invitee,
                     III. DISCUSSION                                 is one who enters a premises to conduct business that
                                                                     concerns the premises owner at the owner’s express or
                        A. Negligence                                implied invitation.” Riddle v. McLouth Steel Prods. Corp.,
                                                                     485 N.W.2d 676, 679 n.4 (Mich. 1992). The Supreme Court
  The district court granted summary judgment to DuPont on           of Michigan has determined that an independent contractor is
the ground that Hunley failed to set forth a prima facie case        a business invitee. Beals v. Walker, 331 N.W.2d 700, 704
of negligence. To state a prima facie case of negligence in          (Mich. 1982) (recognizing that an employee of an
Michigan, the plaintiff must establish the following four            independent contractor who had been hired by the premises
elements: (1) that the defendant owed the plaintiff a duty;          owner to do repair work was an invitee of the premises
(2) that the defendant breached that duty; (3) that the              owner); see Case v. Wal-Mart Stores, Inc., 13 F. Supp. 2d
defendant’s breach caused the plaintiff’s harm, which                597, 602 (S.D. Miss. 1998) (citing Beals for the proposition
No. 01-2733        Hunley, et al. v. DuPont Automotive         9    10   Hunley, et al. v. DuPont Automotive        No. 01-2733

that, in Michigan, an employee of an independent contractor         response personnel with such protective gear. Therefore, as
is a business invitee). Here, Pinkerton had a contract to           the premises owner, DuPont was under an obligation to
provide security services to DuPont, and Hunley was an              exercise due care to protect its security guards from these
employee of that independent contractor. Thus, under Beals,         known risks.
Hunley was a business invitee on DuPont’s premises.
                                                                      Accordingly, we conclude that Plaintiffs-Appellants
  A premises owner has a duty to exercise reasonable care to        satisfied the duty element of their prima facie case.
protect invitees from unreasonable risks of harm caused by a
dangerous condition on the premises.               Williams v.                               2. Breach
Cunningham Drug Stores, Inc., 418 N.W.2d 381, 383 (Mich.
1988) (citing RESTATEMENT (SECOND) OF TORTS § 343, at                 Plaintiffs-Appellants assert that DuPont breached its duty
215-16). The owner’s duty is not absolute, however. “It does        to Hunley by failing to provide him with protective gear, by
not extend to conditions from which an unreasonable risk            failing to warn him about the nature of the hazards associated
cannot be anticipated . . . .” Id.; Stabnick v. Williams Patrol     with paint spills, and by failing to warn him about the risks
Serv., 390 N.W.2d 657, 658 (Mich. Ct. App. 1986) (holding           inherent in delivering the head count to the fire brigade
that premises owners have no duty to warn invitees of               captain. In addition, they argue that DuPont breached its duty
unforeseeable dangers). A premises owner has a duty to warn         when it allowed Hunley to enter the area of the spill through
invitees only of known dangers, or dangers that should have         an open door.
been known through the exercise of reasonable care, which
the premises owner understands or should have understood              First, we agree with the district court that DuPont did not
would pose an unreasonable risk. Bertrand v. Alan Ford,             breach its duty to Hunley by failing to provide him with
Inc., 537 N.W.2d 185, 186 (Mich. 1995).                             protective gear. As indicated above, the duty imposed upon
                                                                    DuPont is a duty to protect its security guards from known
   Applying the Cunningham Drug Stores standard, we                 dangers that DuPont understands pose an unreasonable risk of
believe that DuPont had a duty to exercise due care to protect      harm. Although the paint spill presented a risk, DuPont had
its security guards, including Hunley, from the known               no reason to know that it would present a risk to Hunley. At
dangers associated with paint spills that pose an unreasonable      the time of the spill, DuPont understood that Pinkerton
risk of harm. Although DuPont did not have a duty to protect        security guards were not to respond to the scene of a chemical
its security guards from unreasonable risks that could not be       spill. The purpose of providing protective gear is to protect
anticipated, it is clear that the company did anticipate at least   those employees who will be exposed to the spill itself.
some unreasonable risks from paint spills. The fact that            Because DuPont reasonably believed that, as a Pinkerton
DuPont must have been aware of at least some risks                  security guard, Hunley would not respond to the scene of the
associated with paint spills is evidenced by the fact that it       spill, DuPont could not have breached its duty to Hunley by
provided its own emergency personnel with protective                failing to provide him with protective gear.
equipment, including special clothing and masks, with which
they equipped themselves before entering the area of the spill.        For the same reasons, we hold that DuPont did not breach
Were it not for the existence of some dangers that were             its duty to Hunley by failing to warn him of the dangers
known and anticipated by DuPont to pose an unreasonable             associated with toxic spills and with delivering head counts
risk of harm, the company likely would not have equipped its        to the fire brigade captain in the area of those spills.
No. 01-2733        Hunley, et al. v. DuPont Automotive       11    12   Hunley, et al. v. DuPont Automotive         No. 01-2733

Although those dangers exist, and were known by DuPont,                                    3. Causation
DuPont had no reason to foresee that Hunley would be
exposed to those dangers; DuPont’s management reasonably             We now turn to the question of whether Plaintiffs-
believed that Hunley’s Site Post Orders prohibited him from        Appellants have raised a genuine issue of material fact with
entering the area of the spill. Thus, DuPont had no reason to      respect to the issue of causation. To satisfy this element,
believe that these dangers posed an unreasonable risk of harm      Plaintiffs-Appellants must demonstrate both cause in fact and
to Hunley. Therefore, DuPont did not breach its duty by            legal, or proximate, cause. Based on our conclusion that
failing to give Hunley these warnings.                             Plaintiffs-Appellants have failed to demonstrate proximate
                                                                   cause as a matter of law, we need not reach the issue of cause
  A question of fact exists, however, with respect to whether      in fact.
DuPont may have breached its duty to protect Hunley from
the dangers of paint spills by leaving open a door to the spill      Relying on La Pointe v. Chevrette, 250 N.W. 272 (Mich.
area. DuPont asserts that all doors to the area of the spill       1933), Hunley asserts that, under Michigan law, proximate
were closed upon evacuation of the employees who had been          cause requires only that the harm suffered by the plaintiff be
working in the area prior to the spill. Hunley, on the other       the natural and probable result of the defendant’s negligence,
hand, alleges that he entered the area to deliver the head count   not that the particular harm suffered be foreseeable. In
through an open door. Thus, an issue of fact exists with           La Pointe, a young boy suffered an unusual infection of the
respect to whether a door was, in fact, left open.                 bone in his leg after his employer forced him to work
                                                                   outdoors in inclement weather without the proper protective
  Assuming the door was left open, a jury might find that this     clothing. In ruling that the employer could be liable for the
fact constitutes a breach of DuPont’s duty. Although DuPont        boy’s disease, even though it was not foreseeable that such a
understood that Pinkerton security guards were not to enter        severe illness would result from working outside in inclement
the area of the spill, a jury might find that DuPont should        weather, the court stated:
have foreseen that a security guard would nonetheless enter
the area if a door were left open. In particular, the risk of a      “Where an act is negligent, to render it the proximate
security guard entering the area of the spill through an open        cause, it is not necessary that the one committing it might
door might have been foreseeable in light of the fact that the       have foreseen the particular consequence or injury, or the
security guard was told to deliver a head count to the fire          particular manner in which it occurred, if by the exercise
brigade captain, wherever he may be. Moreover, although              of reasonable care it might have been anticipated that
DuPont’s other failures do not in and of themselves constitute       some injury might occur.”
a breach of DuPont’s duty, those failures certainly become
factually significant if DuPont could have foreseen that, by       Id. at 275 (quoting Baker v. Mich. Cent. R.R. Co., 135 N.W.
leaving a door open, Hunley might enter the area of the spill      937, 940 (Mich. 1912)).
despite his Site Post Orders to the contrary.
                                                                     Although this language in La Pointe suggests that the
  Therefore, we conclude that the Plaintiffs-Appellants            particular harm suffered by the plaintiff need not have been
satisfied the breach element of their prima facie case to the      foreseen for there to be proximate cause, more recent
extent necessary to survive summary judgment.                      Michigan case law sets forth a different standard of law.
                                                                   Recent cases indicate that Michigan courts have shifted their
No. 01-2733            Hunley, et al. v. DuPont Automotive                13     14       Hunley, et al. v. DuPont Automotive                No. 01-2733

analysis of this issue and, under the current view, the                          DuPont’s having left the door to the spill area open. Even if
determination of proximate cause involves an examination of                      it was foreseeable that a security guard not clothed in
the foreseeability of the harm suffered by the plaintiff, and                    protective gear would enter the area of the spill and see other
whether the defendant should be held responsible for such                        individuals in the area wearing protective gear, it was not
harm. Haliw v. Sterling Heights, 627 N.W.2d 581, 588                             reasonably foreseeable that, as a result of doing so, he would
(Mich. 2001) (finding that “‘legal cause or “proximate cause”                    suffer the harm incurred by Hunley. Hunley’s own expert,
normally involves examining the foreseeability of                                Dr. Shiener, stated simply that he believed that some of the
consequences, and whether a defendant should be held legally                     mental health literature indicated that there was a relationship
responsible for such consequences’”) (quoting Skinner v.                         between the onset of psychosis and exposure to stressful
Square D Co., 516 N.W.2d 475, 479 (Mich. 1994)); Moning                          situations. This statement does not indicate that exposure to
v. Alfono, 254 N.W.2d 759, 765 (Mich. 1977) (stating that                        stressful situations is certain to cause psychosis, or that even
proximate cause turns on whether the result of the defendant’s                   mental health experts can foresee which stressful situations
conduct was foreseeable). Indeed, even some cases that                           will cause psychosis. Accordingly, no reasonable mind could
predated La Pointe indicate that proximate cause requires that                   find that it was foreseeable that exposure to this stressful
the particular harm suffered by the plaintiff be foreseeable.                    situation would have resulted in Hunley’s illness.
Luck v. Gregory, 241 N.W. 862, 864 (Mich. 1932) (stating
that proximate causation requires not only that the plaintiff’s                     Furthermore, we are of the opinion that Hunley failed to
harm be the natural and probable result of the defendant’s                       establish proximate cause even under the more lenient
conduct, but also that “it ought to have been foreseen, in the                   standard of foreseeability that he contends applies under these
light of the attending circumstances”); Clumfoot v. St. Clair                    circumstances. It may have been foreseeable that some
Tunnel Co., 190 N.W. 759, 760 (Mich. 1922) (recognizing                          physical harm might result from exposure to the paint spill.
that proximate cause requires that the reasonably prudent                        Plaintiffs-Appellants, however, argue not that Hunley’s
person would have foreseen or anticipated the plaintiff’s harm                   psychotic break resulted from exposure to the spill itself, but
as a result of the defendant’s negligence).                                      that it resulted from Hunley’s exposure to the stress of
                                                                                 knowing that he had been in the area of the spill while he was
   Accordingly, we will apply Michigan’s more recent                             not wearing protective gear, although others in the area were
principle of proximate cause in examining whether Plaintiffs-                    wearing such gear. We conclude, as a matter of law, that it
Appellants have raised a genuine issue of material fact with                     was not reasonably foreseeable that any harm, let alone the
respect to this element.5 Applying this standard, it is clear                    particular harm suffered by Hunley, would have resulted from
that Plaintiffs-Appellants have failed to establish this element                 this stress.6
of their prima facie case because no reasonable mind could
find that it was foreseeable that Hunley would suffer an acute
psychotic break, and, ultimately, schizophrenia, as a result of                       6
                                                                                       It is worth noting that this case is distinguishable from La P ointe .
                                                                                 In La P ointe, although the particular harm suffered was not necessarily
                                                                                 foreseeable, it was foreseeable that some physical harm would result from
    5
                                                                                 being forced to work outdoors in inclement weather. Here, on the other
      Although proximate cause often must be resolved by the jury, the           hand, it was not foreseeable that any harm would result to Hunley from
Court may decid e this issue as a matter of law if reasonable m inds co uld      the stress of knowing that he was in the area of the toxic spill without
not disagree with re spect to the resolution of this issue. Nichols v. Dobler,   protective gear. Furthermore, because security guard s are expected to
655 N .W.2d 787, 788 (Mich. Ct. App. 2002 ).                                     react to situations that would likely cause stress, it was not foreseea ble
No. 01-2733           Hunley, et al. v. DuPont Automotive      15    16   Hunley, et al. v. DuPont Automotive         No. 01-2733

  Therefore, we AFFIRM the district court’s ruling granting                        2. Application of the Doctrine
summary judgment to DuPont, but do so on the ground that
Hunley failed to raise a genuine issue of material fact with           In its opinion, the district court found that Hunley was
respect to proximate cause, a key element of his prima facie         prevented from recovering against DuPont because he was
case of negligence.                                                  harmed while performing the very duty that he was hired to
                                                                     perform: delivering the head count to the fire brigade
                      B. Assumption of Risk                          captain. On appeal, Plaintiffs-Appellants assert that the
                                                                     district court erred because the Michigan Supreme Court
  As an alternative basis for its ruling, the district court found   has determined that the doctrine of assumption of risk is no
that, even if Hunley had satisfied all four elements of his          longer viable as an affirmative defense, except in very
prima facie case, summary judgment was nonetheless proper            specific circumstances. In particular, they state that the
based on the affirmative defense of assumption of risk. We           doctrine is viable only when the plaintiff was an employee
agree, and find that, in addition to the proximate cause             of the defendant and assumed an express contractual
analysis set forth above, the doctrine of primary assumption         assumption of risk for purposes of his employment. They
of risk also supports the district court’s ruling granting           assert that those circumstances are absent here, and that,
summary judgment to DuPont.                                          therefore, the defense cannot apply to bar their claim.
1. Propriety of District Court’s Reliance on Assumption                 Contrary to Plaintiffs-Appellants’ characterization of the
                         of Risk                                     current state of the law in Michigan with respect to
                                                                     assumption of risk, we find that the affirmative defense is
  As a threshold matter, Plaintiffs-Appellants argue that it         still viable, and, moreover, that it applies under these
was improper for the district court to apply the doctrine of         circumstances.
assumption of risk to this case because that affirmative
defense was not argued by the Defendant either in its                   In Kreski v. Modern Wholesale Electric Supply Co., 415
written motion for summary judgment or during oral                   N.W.2d 178 (Mich. 1987), the Michigan Supreme Court
argument on the motion. We conclude, however, that the               distinguished between primary assumption of risk, which
district court acted within its authority in relying upon this       involves a situation in which the defendant does not owe a
doctrine. A district court may properly grant summary                duty of care to the plaintiff because the plaintiff agreed in
judgment on grounds not argued in the motion by the                  advance to relieve the defendant of a duty of care, and
parties. Hines v. Joy Mfg. Co., 850 F.2d 1146, 1150 (6th             secondary assumption of risk, which involves a situation in
Cir. 1988) (“Where it is clear there is no genuine issue of          which the plaintiff voluntarily encounters a known risk
material fact, a court may properly grant summary                    without first manifesting assent to relieve the defendant of
judgment on a ground other than that assigned in the                 liability. Id. at 185. The Kreski court found that, although
motion.”). Therefore, we proceed to consider the merits of           Felgner v. Anderson, 133 N.W.2d 136 (Mich. 1965),
the defense under these circumstances.                               eliminated secondary assumption of risk, primary
                                                                     assumption of risk is still a viable affirmative defense in
                                                                     Michigan. Id. It recognized, in particular, that, post-
                                                                     Felgner, primary assumption of risk had been relied upon
that stress would cause this type of reaction.
No. 01-2733       Hunley, et al. v. DuPont Automotive       17   18   Hunley, et al. v. DuPont Automotive          No. 01-2733

in Carter v. Mercury Theater Co., 379 N.W.2d 409 (Mich.          16, 1987, 737 F. Supp. 409 (E.D. Mich. 1989), also rejected
Ct. App. 1985). Id. at 185 n.11.                                 the plaintiffs’ claims based on the doctrine of primary
                                                                 assumption of risk. In Air Crash Disaster, private security
  In Carter, a private security guard was shot by two            guards were sent to the scene of a plane crash to secure the
patrons at the movie theater where he had been working.          area. In a subsequent lawsuit, the guards claimed
Carter, 379 N.W.2d at 410. The security guard brought a          psychological and emotional injuries from having to gather
negligence action against the theater for failing to prevent     and identify bodies and body parts of the victims of the
the assailants from reentering the theater after they had        crash. Id. at 410. The district court dismissed the action,
been ejected. Id. After the trial court denied summary           finding that the guards had assumed the risk of the harm
judgment to the defendant, the Michigan Court of Appeals         that they suffered because the alleged psychological and
reversed, finding that the plaintiff could not recover from      emotional injuries resulted from their having performed the
the theater because he was injured while performing the          duties that they were hired to perform. Id. at 413-14.
very duty that he was hired to perform — providing
security for the theater. Id.                                       The Air Crash Disaster court recognized that neither
                                                                 Carter nor Turner relied explicitly on the doctrine of
  Similarly, in Turner v. Northwest General Hospital, 293        assumption of risk. The court found, however, that the
N.W.2d 713 (Mich. Ct. App. 1980), which was relied on by         rationale underlying those cases was the same rationale
the district court below, a hospital hired a private security    underlying the affirmative defense. In particular, the court
company to provide security for invitees of the hospital.        stated:
The plaintiff’s decedent, an employee of the private
security company, was shot and killed while on duty at the         “. . . [it] is a term of the contract of employment,
hospital. In rejecting the plaintiff’s wrongful death claim,       express or implied from the circumstances of the
the Turner court stated:                                           employment, by which the servant agrees that dangers
                                                                   of injury obviously incident to the discharge of the
  In this case, defendant hospital, recognizing a duty to          servant’s duty shall be at the servant’s risk. In such
  safeguard, protect and secure its patients, visitors,            cases the acquiescence of the servant in the conduct of
  doctors and other business invitees, hired an                    the master does not defeat a right of action on the
  independent security guard company for that purpose.             ground that the servant causes or contributes to the
  What happened to plaintiff’s decedent was the very               cause of the injury, but . . . no right of action arises in
  reason plaintiff’s decedent and his employer were                favor of the servant at all, for, under the terms of the
  hired, i.e., to safeguard against criminal acts of               employment, the master violates no legal duty to the
  violence. It would be ironic to hold defendant hospital          servant in failing to protect him from dangers the risk
  liable to an employee of the very security guard                 of which he agreed expressly or impliedly to assume.”
  company it hired for protection.
                                                                 Air Crash Disaster, 737 F. Supp. at 413 (quoting Felgner,
Id. at 715.                                                      133 N.W.2d at 149 n.4) (alterations in original).
  Relying on both Carter and Turner, the court in In re Air        Under the reasoning of Air Crash Disaster, Carter, and
Crash Disaster at Detroit Metropolitan Airport on August         Turner, which this Court hereby recognizes as an accurate
No. 01-2733       Hunley, et al. v. DuPont Automotive      19   20   Hunley, et al. v. DuPont Automotive      No. 01-2733

statement of Michigan law, Hunley is prevented from             provide security for DuPont, he assumed a general risk of
recovering from DuPont for the harm he suffered while           encountering and dealing with any and all stressful
providing the head count to the fire brigade captain. Air       situations relating to the plant’s security. Hunley cannot
Crash Disaster, Carter, and Turner belie Hunley’s               now recoup damages for harm that was allegedly caused by
contention that the doctrine of assumption of risk applies      performing the basic duty that he was hired to perform:
only when the plaintiff was an employee of the defendant        encountering a stressful situation relating to the plant’s
and expressly contracted to assume the risk. In each of         security.
those cases, as here, the plaintiff was an employee of the
independent security company that had been hired by the           Accordingly, we AFFIRM the district court’s ruling on
defendant to provide security services. Moreover, none of       the alternative basis of assumption of risk.
those cases required evidence of an express contractual
assumption of risk for the doctrine to apply. Rather, in                          IV. CONCLUSION
those cases, as here, the private security guards implicitly
assumed certain risks based on the nature of the work that        For all of the foregoing reasons, we AFFIRM the district
they were hired to do.                                          court’s ruling granting summary judgment to Defendant-
                                                                Appellee.
  Thus, application of the doctrine of assumption of risk
under these circumstances is proper, and the reasoning
underlying that doctrine bars Plaintiffs-Appellants’ claim.
Hunley was injured while he was performing one of the
very tasks that he was hired to perform: providing a head
count to the fire brigade captain. Although Hunley could
not know the precise location where he would find the fire
brigade captain at the time of the spill, it was nonetheless
clear that carrying out the duty to deliver the head count
necessarily involved encountering a stressful situation that
imperiled the plant’s security. No matter where the fire
brigade captain would be found, he would be dealing with
the stress of a chemical spill — the very reason for the head
count. Consequently, when Hunley was hired by Pinkerton
and was provided with his Site Post Orders requiring him to
deliver a head count in the event of a spill, he necessarily
assumed the risk of encountering the stress related to such a
spill.
   Moreover, we note that not just toxic spills, but nearly
any situation that requires the presence and action of a
security guard, by its nature, embodies a certain degree of
stress. Thus, when Hunley was hired by Pinkerton to
