* The Honorable Algenon L. Marbley, Unit ed States Dist ric t Ju dge f

or the Southern Distri ct of Ohio, sit ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0304P (6th C ir.) File Name: 03a03 04p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
J ERRI LYN H UNLEY ; J EROME H UNLEY , Plaintiffs-

Appellant s,

v.

D U P ONT A UTOMOTIVE , Division of E.I. DuPont de Nemours and Co., Inc., Defendant-Appellee. X

- - - -
> , - - - - - - N No. 01-2733

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 00-72043—Nancy

G. Edmunds, District Judge. Argued: June 17, 2003 Decided and Filed: August 25, 2003

Befor e: BOGG S and GI

LMAN , Circuit Jud

ges; MARBLEY, District Judge. * 2 Hunley, et al. v. DuPont Automotive No. 01-2733

_________________ COUNSEL

ARGUED: Donn elly

W. Hadden, Ann Arbor, Michigan, for Appellant s

. Raymond Michael Ripple, E.I . DU PONT DE N EMOURS AND COMPANY, Wilmington, Delaware, fo r App ellee. ON BRI EF: Donnelly W. Hadden, Ann Ar bor, Michigan, Patrick D. Bal l, Mo unt Clemens, Michigan, for Appellan ts. Raymond Michael Ripple, Donna L . Goodman, E.I

. DU PONT DE NEMOURS AND COMPAN Y , Wilmington, Delaware, Robert S. Krause, DICKINSON, WRIGHT, PLLC, Detroit, Michigan, for Appellee.

_________________ OPINION

_________________ ALGENON

L. MARBL

EY, District Judge. Thi s is a negligence

action th at was re

moved to federal court based on diversity ju ri sd ic ti on . P la in ti ff

s- Ap pe ll an ts , J er ri lyn Hu nl ey, individua lly and as gu ar di an of

th e e st at e o f J er om e H un le y, and Jerome Hun ley, broug ht suit against Defendant-Appellee, DuP ontAutomotive, Division of E.I. DuPont de Nem ours an d Co., Inc., for har

m incurre d by

Jerome Hun

ley after h is exposure to a large paint spill in the DuPont Automotive plant inwhich h e was working as a sec urity guard . Plaintiff

sAppellan ts now appe al the dist

rict cou rt’s ru ling granting summary judgment to Defendant-Appellee. The district cour t exercised jurisdiction over this matter pursuant to 28 U.S.C. § 1332. This Court’s appellate jurisdictionis proper under 28 U.S.C. § 1291.

Fo r the reasons discussed below, this Court finds that the districtcourt properly

granted s ummary

judgmen

t to Defendant-Appellee, and, therefore, AFFI RMS the judgment of the dis trict cou

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

1 DuPo nt asserts t

hat all doors to t

he area of

th e sp il l w ere shu t. As this matter

is bef ore the Court

on appeal f

rom the di stri ct court ’s order granting summary judgm ent to the Defendant-Appellee, however, the Court views the facts in the light most favorable to P laintiffs -Appe llants. Therefore, the Court presumes for the present purpo ses that the PlaintiffsAppellant s are corr ect t hat Hunle y enter ed the ar ea of the spil l through a I. FACTUAL AND PROCEDURAL BACK GROUND A. Factual History Defendant-Appellee, DuPont Automotive, Div is io n of E.I. DuPontde Nemou

rs and Co. , Inc . (“DuPon t”), ope rates a paint factory in Mount Clemens, M ichiga n. At appr oximately 9:34 p.m., on January 27, 1997, DuPont suffered one of the large st paint spi lls in the history of the plant. At that time, a DuPontemployee wa s in the proces s of fi lling a shipping container with paint

to shi p to an automobile manufacturer. As she was moving the container toward a holding tank, she struck t he bottom of the tank with the top of the container, thereby disl odgi ng the filling valve of the tank. Within the next few minutes, the tank

emptied its 2400 gallons of paint onto the worker and the surrounding work ar ea.
DuPontmandates that any c hemical spill of more than onequarter cup necessitates an emerge ncy response . Ther efo re, at 9:35 p.m. on the evening of t he spill, DuPont employees initiated emergency

procedures. In pa

rticular, a DuPont fire brigade member working in the production area sounded the alarm, calling into action a plant-wide emer gen cy response

. U pon hearin g the al arm, D uPon t’s i ntern al fir e briga d e members donned th eir prote ctive g ear and entere d the spill
area. Accordi ng to DuPont, within minutes, all non-fire brigade employee s had evacuated the production area a nd reported to their assigned evacuation sites, closing the fire doors between

the production area and the shipping
wa rehouse

as they left. One

door, how ever, w as left o pen , suchthat non-emergency response em

plo ye es were

able to gain en trance to the ar ea of the spill. 1 4 Hunley, et al. v. DuPont Automotive No. 01-2733

doo r that had been left ope n.

2 Although there was some disput e between t he parti es regarding the nature of the head coun t repo rt pro vided by P inkerto n Sec urity, it appears that the purpo se of the report is to ensure that all non-emerge ncy respon se emp lo y ees signed in t o the building at the time of t he emergency are accounted for.

3 The Co urt reco gnizes that D uPo nt asserts th at Hunl ey had been iss ued pro tective c loth ing, but that he was s imply not weari ng it at t hat tim e. Hunley, however, asserts t hat t he speci al cl othin g that he was provided by D uPo nt wou ld not have protect ed him f rom the spi ll, and was not of the same type as that worn by the fire brigad e mem bers. DuPontcontracts with Pinkert on, a privat e secur ity
co mp an y, to provide

security at the pla nt. At the time

of the spill, Plaintiff-Appellant Jerome Hunley (“H un ley”) wa s employ edas a Pinkerton security guard at the DuPont plant inMount Clemens. Pinkerton security g uards are oblig ated to follow Pinkerton’s Site Post Orders. Those orders specify that, in the eve

nt o f a spill, Pinkerton

security guard s are to provide a head count

report to the fire brigade ca ptain. 2 The Pinkerton Site Post Or

ders als o expressl

y st ate : “ Security does not respond to the scene of a spill.” According

to Plaintif

fs-Appe lla

n ts, upon Hunley’s arr

ival at work on th e evenin

g of the spill, he w as told by

his supervisor, Bill May

nard, todeliver

the head -count r eport to the fire br igade captain. Hunley printed out the report, and thendelivered it to the f

ire brigade captain, whom he found inthe are a of the s

pill. Hunle

y c laims that he ga ined acc ess to the are a of th e spill by entering through an open door. When he entered the area of the spill to deliver the re port, he
was not wearing protective clothing, nor wa s he breathing throu gh a respirator; none of these protective items had been issued to him b y

DuPont. The fire brigade members in the vi ci nity of the spill, however, were all wearing protective clothing , includin

g masks. 3No. 01-2733 Hunley, et al. v. DuPont Automotive 5

4 Ap pare ntly, one ful l day passed between the night of the spill and the day tha t Hunley

drove to hi s gran dmothe r’s home. Hunley has no

reco llection o f what o ccurr ed o n that interv ening d ay. Hunley states tha t, shortly after d eliverin g the re port to the fire captain, he beg an to have “rushing thoughts,” which he describes as “too many thou gh ts running through [his] head at once,” and

that he also began

feeling dizzy. After

working t he night of the spill, Hunley went home a nd tried to sleep. While try in g to sl eep , ho wev er, he b ega n ha ll uci nat in g. In particular, he claims that he heard “whale sounds” and saw “up side down people.” Hunley then drove to hi s grand mother’s home, thin

king tha t would he lp calm him

. 4

Onthe drive

back home

from his grand

mother’s house, Hunley’s hallucinations continued. Inresponse to one of the hallucinat io ns, Hunley beg an driving his truck at speeds estimated to be betw een sixty

and ninet

y mil es per

hour agains trush hour

traffic in Troy, Michig an. Ultima tely , his
car bec ame air

borne, and then landed on top of the car of a ninetee n-year-ol d

woma n, who was pronounced dead at the
scene of the accident. Immedia t el y f ollowing the acc ident, Hun le y was transported to a nearby hospital, where he was initially diagnosed with brief

reactive psy

chosis, a temporary diagnosis used to explain his acute psyc hotic symptoms.

Prior to the car accident, Hunley had no recorded medical history of mental illness, nor did he have a criminal record. He was twenty-f

our y ears old at the time. After a series of mental evaluations following the accident, Hunley was ultimately

diagnosed with schizophrenia, an organic men tal disease that freq u ently manifest s itself when suffe rers ar e in their late tee ns or ear ly twenties. H e has als o been diagnosed
as suffering

from an “ acute psychotic break” accompanied by auditory and visual hallucinations at the time of the accide nt. Hu nl ey’ s expe rt, Dr. Gerald Shiener, M.D., opines that Hunl ey’s psychotic brea

k was brought on by

the stress of knowing that he had been exposedto toxins in the area of the 6 Hunley, et al. v. DuPont Automotive No. 01-2733

spill by b eing in

the ar ea withou

t protec tive ge ar while

all others in the vicinity of the spill were pr otected by special clothing and masks

. Following one yea

r of hospitalization, Hunley was tried on
a charg e of mans laughte

r for th e death

of the nineteen-y

earold woman in the car accident. At the conclusion of the trial , he was foun

d guilty but menta

ll y ill. He is c

urrently incarc erated , serving

a term of four to f ifteen y ears. B. Procedural History

Plaintiff s-Appell ants origina

lly f iled this case in the Circuit Courtfor the County of Mac omb on J anuar y 28, 2000. Defendant-Appellee r emoved the case to the United States District Court for the Eastern District of Michigan on May

8, 2000, on th e b as is of di ve rs it y of

citizenship. On November

28, 2001, after

discovery ha

d been completed, the districtcourt issu

ed an opin

ion and or

der gr anti ng su mmary judgment to Defendant-Appellee. Plaintiff s-Appell ants filed their notice of appeal from that order on December

18, 2001.

II. STANDA

RD OF RE VIEW
The district c ourt’s g

rant of s ummary judgmen t i s subject to de novo review by th

is Court. Peters v. Lincoln Elec. Co. , 285 F.3d 4 56, 4 65 (6t h Cir . 2002 ) (cit ing Darrah v. City of Oak Park , 255 F. 3d 301, 305 (6th Cir. 2001), and Perez v. Aetna Life Ins. Co. , 150 F.3d 550, 554 ( 6th

Cir. 1998) ). Thus,
on appeal, this Court reviews a motion for summary judg ment according to the same standard that the district c ourt appl ies. Summary judgmen

t is appro

priate “ [i]f the plea

dings, depositio ns, an swe rs to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue a s to any

materia l fact an d the movin

g party is entitled to judgme

nt as a ma

tt er of law.” F ED

. R. C IV

. P. 56(c). The movant has the burd en of est ablishing that there
are no genuine issues of ma terial fact, which may beNo. 01-2733 Hunley, et al. v. DuPont Automotive 7

accompl ished by d

emonstra ting tha t the non- moving pa

rty lacks evidenc e to su

pp ort an essential element of its case. CelotexCorp. v. Ca trett , 477 U.S. 317, 322-23 (1 986); Logan

v. Denny ’s, I

nc. , 259 F.3 d 55 8, 5 66 ( 6t h C ir. 200 1). In response, the non-moving pa rty must prese

nt “sign ific an t probative evidence” to show that “there is [more than] some metaphysical

doubt as to the material facts.” Moore v. Philip MorrisCos., 8 F.3d 335, 339-40 (6th Cir. 1993). “[ S]ummary

judgment will not lie if the dispute is ab out a materia l fact tha t is ‘genu ine,’ tha t is, if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U .S. 242, 248 (1986).

Inevaluatinga motion for summary judgme

nt, the evidence must be viewed in the light most favorable to the non-moving pa rt y. Adicke

s v. S.H. Kress & Co. , 398 U.S. 144, 157 (1970). The non-moving party , however, “may notrest upon its mere all egations . . . but . . . must set f orth sp ecific facts showing that there is a genuine issue for trial.” F ED

. R. C IV

. P. 56(e); see Celotex , 477 U.S. at 324; Sear cy v. City of Dayton , 38 F.3d 282, 28 6 (6th C ir. 1994). The existence of
a scinti lla o f evidence in support of the non-moving party ’s position will not be sufficient; there must be ev i dence on wh ich the jury could re asonably find for the non-moving pa rt y. Anderson , 477 U.S. a t 251; Copeland v

. Machuli s , 57 F.3d 476, 479 (6th Cir. 1995).

III. DISCU SSION A. Negligence

The district court granted summary judgment to DuPont on the ground that Hunley

failed to set forth a prima faci e case of negligence. To state a prima faci e case of ne gligence i n Michigan, the plain

tiff must e stabli sh the following four elements : (1) that the defendant owedth e p la in ti ff

a d ut y; (2) that the defe ndant breached that duty ; (3) that the defendant’s breach caused the p l aintiff’s harm, which 8 Hunley, et al. v. DuPont Automotive No. 01-2733

includes (a) cause in fact and (b) legal, or proximat e, cause ; and (4) damages to the plaintiff. C ase v . Consumers Power Co. , 615 N.W.2d17, 20 & n.6 (Mich. 2000). The district court premised its ruling on its finding that, although DuPont owed a duty to Hunley , DuPont did not brea ch that du

ty throu gh its conduct. Base d on the an aly si s set forth below,
we conclude

that, although Pla

intiffs- Appellan

ts r ais ed a genuine issue of fact with respe ct to bo th duty and breac h, summary judgmen t was n onetheless proper because they fai led, as a matter of law, to establish a genuine issue o f material fact as to the existence of proximate cause.

1. Existence of a Duty

DuPontargues that Plaint iffs- Appellan ts have f ailed to establish the duty element of the prima faci e casebecause

it had neither a duty to provide

Hunley with persona

l protective equipmen t, nor a duty

to warn h im that a psychotic break was
a dange r associ ated with

visual expo sure to a

paint spill

. Du Pont e rrs, how ever, by viewing the issue

of duty so na rr ow ly. Although it may not have owed these particular duties to Hu nl ey, it d id have a general duty to exercise due
care to protect its security g uards, including Hunl ey, fro m certain dangers associated with paint spills. This duty arises fromthe relationshi p between DuPont and Hunley of premises owner and invitee.

Ge ne ra ll y, “[a]n invitee, and in this case a business invitee, i s one who enters a premises to conduct business tha t
c oncerns the premises owner at the owner’s express o r impliedinvitation.” Ridd le v. McLouth Steel Prods. Corp. , 485 N.W.2d 676, 679 n.4 (Mich. 1992). The Supreme Court of Michigan has determined that an independent contractor

is
a busines s invi tee. Beals v. Walker, 331 N.W.2d 700, 704 (Mich. 1982) (recognizing that an employ ee of a n independent

contractor who had been hire d by the premises
owner to do repair wo rk wa s an invitee of the premises owner); see Ca se v. Wal -Mart Stores, Inc. , 13 F. Supp. 2d 597, 602 (S .D. Mi ss. 1 998) ( citi ng Beals fo rthe propositionNo. 01-2733 Hunley, et al. v. DuPont Automotive 9

that, in Michigan, an employ ee of an independent contractor is a business invitee). Here, Pinkerton h ad a c ontract to provide security ser

vices to DuPont, and Hunley wa s an employee of that independent contractor. Thus, under Beals , Hunley was a bus iness invit

ee on DuPont’s pre

mises.

A premises owner

has a duty to exercis e reasonable ca re to protect invitees from unreasonable risks of ha rm ca us ed by a dangerous condition on the premises. Williams v. Cunningham Drug Stores, Inc. , 418 N.W.2d 381, 383 (Mich. 1988) (citi ng R ESTA TEMENT (S ECOND ) OF T ORTS § 343, at 215-16). The owne

r’s duty is not absolute, however. “It doe s notextendto co nditions fr om which a

n unreas onable r

isk cannot be anticipated . . . .” Id. ; Stabnick v. WilliamsPatrol Serv. , 390 N.W.2d657, 658 (Mich. Ct. App. 1986) (holding that premises owne rs ha ve no duty to warn invitees of unfores eeable

dangers). A premise s owner h as a duty to warn invitees only

of known dangers, or dang ers that should have bee n know n through the exercise of reasonable c are, which the premises owner understands or should have unde rstood would pose an unreasonable risk. Bert rand v. Alan Ford, Inc. , 537 N.W.2d 185, 186 (Mich. 1995). Applying the Cu nni ngham Drug Stores standard, we believe that

DuPont had a duty to exercise due care to protect its securit

y guards, including Hunley, from the known dangers associa

ted with pa

int spills that pose

an unrea sonable risk of harm. Althoug

h DuPont did

not have a

duty to protect its secur ity guards from unreasonable risks that could not be anticipated, it is clear that the company did antic ipate at l east
some unr ea sonable risks from paint spills. The fact that DuPontmust have been aware of at l east some risks associated

with paint

spills is evid enced

by t he fact that it provi de d its own emergency

personnel with protective equipmen t, including special clothing and masks , with which they equipped themselves before entering the area of the spill. Were it not for t

he existence of some dang ers t hat were knownand anticipated by DuPont to pos e an u nreasonable risk of harm, the compa

ny l ikely would not h ave equ

ipped its 10 Hunley, et al. v. DuPont Automotive No. 01-2733

response personnel with such protective gear. The refore, as the premises

owner, D

uPont was u

nder an o

bligation to
exe rcisedue care to protect its security guards from thes e known ris ks.

Ac co rd in gl y, we conclude that Plaint

iffs-Ap pellants satisfied the duty element of their prima faci

e case.
2. Breach

Plaintiff s-Appell ants assert that DuPont br eac hed its dut y to Hunley by

fai ling t o provide him with protective gear, by failing to warn h

imabout the nature of

the hazards associated wit h paint sp ills, and by failing to wa rn him about the risks inherent in delivering the head count to the fire brig ade captain. In a

ddition, th ey

argue that DuPon

t breached its dut

y when it allowed

Hunley to enter the

area of the spil l thro ugh an open door. First, we agree with t

he dist rict court that DuPont did not b reach its duty to Hunley

by f ailing to provide h

im wit h protective gear. As indicated above, the duty imposed

upon DuPontis a duty to protect its security g

uards from known dangers that DuPon

t underst ands pose an unrea sonable

risk of harm. Alth ough the paint spill presented a risk, DuPont had
no reason t

o know tha

t it would present a risk toHunley. At the time of the spill, DuPont understood that Pinkerton security guards were not to respond to the scene of a chemical spill. The purpose of providing protective g ear is to pro tect those employ ees who will be exposed to the spill itself. Becau se DuPont re asonably bel ieved that, as a Pinkerton security guard, Hunley

would not r

espond to the scene of the spill, DuPont could not have breached it s duty to Hunley

by failing to provide him with protective gear. For the same reasons, we hold that DuPont did not breach its duty to Hunley

by failing to wa

r n him of the dangers associated

with toxic sp ills and wi

th delive ring he ad counts to the fire

brigad e capta in in the a

rea of t hose spills

.No. 01-2733 Hunley, et al. v. DuPont Automotive 11

Althoug h t hose dan

gers exist, and we

re known by D uPont, DuPonthad no reas on to fo resee that Hunley would be exposedto those da

ngers; DuPont’s management reasona bly believed that Hunle

y’ s Site Post

Orders prohibited him from enteringthe area of the spill. Thus, DuPont had no r eason to believe that these dangers posed an unreasonable risk of harm to Hunley . There fore, DuPont d id no t breach its duty by failing to give H unley these wa rnings.

A question of fact

exists, however, with respect to whether DuPontmay have br

eached its dut

y to pr otect Hunley fr

om the dangers of paint spills by leaving ope n a door to the spill
area. DuPont ass erts that all doors to th e area

of the spi ll
were closed

upon evacuation of the employ ees who had

been workin g in the area prior to the spill. Hunley , on the ot he r hand, alleges that he entered the area to deliver

the head count throu gh an open door. Thus, an issu e of fact exists with respect to whether a door was, in fact, left open. Assuming the door

was left open, a jury

might find

that this fact constitutes a breach

of DuPont’s duty. Although DuPont understood

th a t Pinkerton security g uards were not to enter the area of

the spill, a

jury might fin

d that DuPont sh oul d have foreseen that a security guard wo uld

nonetheless enter the area if a door were left ope n. I n particular, the risk of a
se curity guard entering the ar

ea of the spill through an open door might have be en fore seeable

inlight of the fact that the security guard was told to de liver a head count to the fire brigade captain, wherever he may be. Moreover, althou gh DuPont’s other failures do notin and of t hemselve s constitut

e a breach of DuPont’ s duty , those fa ilures ce rtainly become factual ly sign ificant if DuPont could have foreseen that, by leaving a door open, Hunley might enter

the area of the spi ll despite his Site Post Orders to the contrary

. The re fore, we conc lude that the Plainti ffs-App ellants
sa tisf ied the breach element of their prima faci e case to the extent nec essary

to survive

summary judgmen t. 12 Hunley, et al. v. DuPont Automotive No. 01-2733

3. Causation

We now turn to the quest ion of whe

ther Plain

tiffsAppellant s have ra

ised a g enuine is sue of ma terial f act with respect to the issue of causation. To satisfy thi s elemen t, Plaintiff s-Appell ants must demon strate bo th cause in fact and legal, or proximate, cause. Based on o ur conclusion that Plaintiff s-Appell ants have fa

iled to de monstrate proximate
cause as a matter of law, we need not rea ch the issue of cause in fact. Relying on La Pointe v

. Chevre tte , 250 N.W. 2 7 2 (Mich. 1933), H un ley

asserts t hat, unde r Michig an law, proximate
cause requires only that the

harm suffered by

the plaintiff

be the natural and probable result of the defendant’s negligenc e, notthat the particular ha rm suf fer ed b e fo res eea bl e. In La Pointe , a young

boy suffer

ed an unusual infection of the bone in his leg after his employe r forced him to work outdoors ininclement weather without the proper protective cloth ing. In ruling that the employer could be liable for the boy’sdisease, even

though it was not

foreseeable that such a
severe illness would result from working outside in inclement weathe r, the co urt state d:

“Wher e an act is

neglig ent, to re

nder it the

proxim at e cause, it is not necessary that the one committing it might have foreseen

the particular consequence or injury, or the particular manner i nwhichit occur

red, if by th e exerci se of re asonable care it might have been anticipated tha t some injury might occ

ur.”

Id. at 275 (quot ing Baker v. Mich. Cent. R.R. Co. , 135 N .W. 937, 940 (Mich. 1912)).

Alth ough this language in La Pointe suggests that the particular harm suf fe red by the plaintiff ne ed not have been foreseen for ther e to be pr

oximate ca

use, mo re r ecent Michigan case law sets forth a different standar d of l aw. Recent cases indicate that Michigan courts have shifted theirNo. 01-2733 Hunley, et al. v. DuPont Automotive 13

5 Although pro xim at e cause often must be resolved by t he jury, t

he Co urt ma y decid e this issue a s a ma tter of law if reason able m inds co uld not disagr ee with re spec t to the res olution of this issue. Nichols v. Dobler , 655 N .W.2d 787, 788 (Mich. Ct. App. 2002 ). analy si s of thi s issue and, under the current view, the determination

of proximat

e cause involves an examination of the forese eabili ty o f the harm suffered by the plaintiff, and whether the defendant should be held r espon sible for such harm. Haliw v. Sterling Height s , 627 N.W.2d 581, 588 (Mich. 2001) (findingthat “‘legal cause or “pr oximate cause” normally i nvolves e xamining th e fores eeabilit y of consequences, and whether a defendant should be held leg ally responsi ble for su ch con seque nces’” ) (quo ting Skinner v. Square D Co. , 516 N.W.2d 475, 479 (Mich. 19 94)); Moning

v. A lfono , 2 54 N.W.2d 759, 765 (Mich. 1977) (stating that proximate

cause turns on

whether the resu lt of the defendant’s conduct w as fo reseeable). I

ndeed, even some cases that predated La Pointe

indicate that

proximate cause requires that the part icul ar harm suffered by the plaintiff be foreseeable. Luck v. Grego ry , 241 N.W. 862, 864 (Mich. 19 32 ) (stating that proximate

causation requires not only that the plaintiff’s harm be the natural and probable res ult of the defendant’s conduct, butalso that “ it ought t o have be en fore seen, in

the light of the attending ci rcumst ances” ); Clumfoot v . St. Clair Tunnel Co. , 190 N.W. 759, 760 (Mich. 1922) (rec og nizing that proximate c ause re quires th at the reasonably prudent person would have foreseen or ant icipated the plaintiff’s harm as a result of the defendant’s neg ligence).

Accordi n gl y, we will apply Michig an’s more recent principle of proximate c ause in examining whether PlaintiffsAppellan ts have raised a genuine is sue of ma terial f act with resp ectto this eleme

nt. 5 Applying this standard, it is clea r that Plaintiff s-Appell ants have

failed to establish this element of their prima faci

e case be cause no

reasona ble mind c ould find that it wa s forese eable th at Hunley would suffer an acute psychotic break, and, ultima tely , schizophr

enia, as a result of 14 Hunley, et al. v. DuPont Automotive No. 01-2733

6 It is wort

h not in g t hat

th is cas e i s di st in gui shable fr om L a P ointe

. In La P ointe , alt

hough the parti cular harm suf fered was not nec essar ily forese eable, it was foreseeable that some physical harm woul d res ult fr om being for ced t o wor k ou tdoors i n incl ement weat her. Here, on the ot

her hand, it w as not

for eseea

ble t hat any h arm woul d res ult to Hunl ey f

rom the str ess of knowing that he was in the area of

the toxic spi ll wit

hout protective gear. Further more, beca use secu rity guard s are ex pec ted to reactto s it

uati on s that

would likely caus e stress, it wa s not for eseea ble DuPont’s having left the door to the spill a rea ope n. Even if it was foreseeable that a security guard not clothed i n protective gear

would enter the area of the spill and see other individua ls in the ar

ea wea ring pr otectiv e ge ar, it was not
reasona bly forese eable

that, as a result of doing so, he wou

ld suffer the ha rm incurr

ed by Hunley . Hunley ’s own expe rt, Dr. Shiener, stated sim

ply that he believed that some of the mental health literature indicated that there wasa relati onship betwe en the onset of psychosis and exposure to stressful situations

. This statement does not indicate that exposure to stressful situations is certa into cause psyc

hosis, or that even mental health experts can foresee which stressfu l situ ations will cause psychosis. Accor

dingly, no re asonable mind could find that it was foreseeable that exposure to this stressful situation would have

resulted in Hunley ’s illness

. Furthermore, we ar e of the opinion that Hun ley failed to establish proximate cause even under the more lenient standard of foreseeability

that he contends applies under these circumst ances. It ma

y ha ve been forese eable th at some physical harm mig

ht result f rom exposur

e to th e pai nt spill. Plaintiff s-Appell ants, howe ver , argue not that Hunley ’s psychotic break

resulted from expos

ure to the spill itself, but tha tit resulte d from Hun ley ’s exposur

e to the str

ess o f knowing that

he had been in the area of the spill while he was notwearing protective ge ar, although others in the area we re wearing such gear. We conclude, as a matter of law, t hat it
was not reasonably f

oreseeable that

an y h arm, let alone the particular harm suffered by

Hunley, would have

resulted from this stres s. 6No. 01-2733 Hunley, et al. v. DuPont Automotive 15

that st ress would cause this type of reacti on. Therefore, we AFFIRM

the district court’s ruling granting summary judgment to DuPont, bu t do so on the ground that Hunley failed to raise a genuin e issue of

materia l fact wi th respect to proximate cause, a

key element o f his prima faci e case of negligenc e.

B. Assump tion of Risk

As an alternative basis for its ruling, the district court found that, even if H

unley had satis fied all f

our ele ments of h

is prima facie

case, summary

judgment was nonetheless proper based on the a ffir

mativ e def

ense of as sumpt

ion of risk. We agree, and find t

hat, in ad

dition to the

proximate c ause analy sis set forth above, the doctrine of primary ass umption of ri sk also supports the district court’s ruling granting summary judgme

nt to DuPont. 1. Propriety of District Court’s Reliance on Assumption of Risk

As a thre shold matte

r, Plaintif fs-Appe llants ar

gue tha t it was improper for the district court to apply the doctrine of assumption of risk to this case because that affirmative defense was not a

rgued by t he Defe ndant eit her in its written motion for summary judg ment or during oral argument on the motion. We conclude, however, that the district c ourt act

ed within i

ts author ity i n rely ing upon this doctrine. A district court may properly g

rant summary judgment on grounds not argued in the motion by the parties. Hines v. Joy Mfg. Co. , 850 F.2d 1146, 1150

(6th Cir. 1988) (“Where it is clear there is no genuine issue of material fact, a court may properly g

rant summary judgment on a ground other than that assig ned in the motion.”). Therefore, we procee d to consider the merits of the defe nse unde r these c ircumsta

nces. 16 Hunley, et al. v. DuPont Automotive No. 01-2733

2. Applicat

ion of the Do ctrine In its opinion, the district court found that Hunley was prevented from recovering against DuPont because he was harmed w hile per forming the very duty that he wa s hired to perform: delivering the head count to the fire brigade captain. On appeal, Plaintiffs-Appellants assert that the district court erred because the Michig an Supreme Court has determined that the doctrine of assumption of risk is no longer viable as an affirmative de fense, except in very specific circumstances. I n particular, they

state that the doctrine is viable only whe n the plaintiff was an employ ee of the defendant and assumed an express contractual assumption of risk for purposes of his employme nt. They assert that those c ircumsta nces ar e absent here, a nd that, therefore, the defense ca

nnot apply to bar their c laim. Contrary to Plaintiffs-Appellants’ c haracterization of the
curren t state of the law in

Michiga n with res pect to assumption

of risk, w e find tha

t the aff irmative defense is still viable , and, mor

eover, t hat it app lies unde

r these circumst ances.
In Kreski v. Modern Wholesale Elec tric Supply Co. , 415 N.W.2d 178 (Mich. 1987), the Michigan Supreme Court distinguished between primary assumption of risk, which involves a situation in which the defendant does not owe a duty of care to the pla intiff be cause the plaintif f agre ed in advance to relieve the defenda nt of a duty of ca

re, and seconda ry assumption

of risk, w

hich invol

ves a situation in which the plaintiff voluntar ily e ncounter s a known r

isk without first manifesting assent to relieve the defendant of liability. Id. at 185. The Kreskicourt found that, altho ugh Felgner v. Anderson , 133 N.W.2d 136 (Mich. 1965), eliminated secondary

assumption of risk, primary assumption

of risk is s till a viab le affir mative de fense in Michigan. Id. It re cognize d, in part icular, that, post

Felgner , primary assumption of risk had be en relied uponNo. 01-2733 Hunley, et al. v. DuPont Automotive 17

in Carter v. Mercury Theater Co. , 379 N.W.2d 409 (Mich. Ct. App. 1985). Id. at 185 n.11.

In Carter , a private security guard was shot by

two patrons at the movie theater where he had be en working. Carter , 379 N.W.2d

at 410. The secur

ity g uard bro ught a negligence action ag ainst the theater for failing to prevent the assailants from reentering the theate r after they

had been ejected. Id. After the trial court denied summary judgmen t to the de fendant , the Mich igan Cou rt of Appe als reversed, finding that the plaintiff could not recove r from the theater because he was injured w hile performing the very duty that he was hired to perform — providing security for

the theater. Id. Similarly, in Turner v. Northwest General Hospital , 293 N.W.2d 713 (Mich. Ct. App. 1980), which was relied on by the distri ct court

below, a hospital h

ired a pr ivate se curity company to provide se curity for invitees of the hospital. The plain tiff’s de cedent, an employ ee of the private security compa

ny, was shot and killed while on duty at the hospital. In re

jecting the plain tiff’s wr ongful d eath cla im, the Turner

court stated:

In thi s case, d

efenda nt hospita l, recog nizing a d uty to safeg uard, pr otect an d secure its patien ts, visitor s, doctors and other business invitees, hired an independent security

guard company

for that purpose. What happened to plaintiff’s decedent was the very reason plaintiff’s decedent and his employ er were hired, i.e., to safeguard ag ainst criminal acts of violence. It would be ironic to hold defe ndant hospital liable to an employee

of the very

security g

uard company it hired for

protection.

Id. at 715. Relying on both Carter

and Turner , the court in In re Air Crash Disas ter at Det

roit Metro

politan Air

port on Aug

ust 18 Hunley, et al. v. DuPont Automotive No. 01-2733

16, 1987 , 737 F. Supp. 409 (E.D. Mich. 1989), also rejected the plaintiffs’ claims based on the doctrine of primary assumption of risk. In Air Crash Disaster , private security guards were sent to the scene of a plane crash to secure the area. In a subsequent lawsuit, the guards claimed psychologic al and emotional injuries from having to gather and identify bodies and body parts of the victims of the crash. Id. at 410. The district court dismissed the action, finding that the guards had assumed the risk of the harm that they suffer

ed because the alleged psy chological and emotional injuries resulted from their having performed the duties that they were

hired to perform. Id. at 413-14.
The Air Crash Disaster

court recognized that neither Carter nor Turner

relied explicitly on the doctrine of assumption of risk. The court found, however, that the rationa le under lyin g those c ases wa s the same rationa le underlying

the affirmative defense. I n particular, the court stated: “. . . [it] is a

term of the contra

ct of emp loy

ment, express or implied from the circumstances of the employment, by

which the servant agrees that da ngers of injury obviously

incident to the discharge of the servant’s duty shall be a

t the servant’s risk. In such cases the acquiescence of the servant in the conduct of the master does not defeat a right of a ction on the ground that the servant causes or contributes to the cause of the injury

, but . . . no

right of action a rises in favor of the servant at all, for, under the te rms of the employment, the master violates no legal duty to the servant in failing to protect him from d

angers the risk of which he agreed expressly or impliedly to assume.”

Air Crash Disaster , 737 F . Sup p. at 4 13 (qu otin g Felgner , 133 N.W.2d at 149 n.4) (alterations in original). Under the reasoning of Air Crash Disaster , Carter , and Turner , which th

is Court he

reby recog nizes as a n accur ateNo. 01-2733 Hunley, et al. v. DuPont Automotive 19

statement of Michigan law, Hunley is prevented from
recove ring fr om DuPont f

or the ha rm he suf fered w hile providing the head count to the fire briga de captain. Air Crash Disaster , Carter , and Turner belie Hunley’s contention that the doctrine of assumption of risk applies only when the plaintiff wa s an employee of the defendant and expressly contrac

ted to assume the risk. In each of those cases, as here, the plaintiff was an e mployee of the independent security

company that had be en hired by the defendant to provide security services. Moreover, none of those cases required evidence of a n express contractual assumption

of risk for the doc trine to a pply . Rather, in those ca ses, as he

re, the private se curity

guard s implicitly assumed certain risks based on the nature of the wor k that they were hired to do. Thus, app lication o f the doc trine of a ssumption o f risk under these circumstances is proper, and the r easoning underlying

that doctrine bars Plaintiffs-Appellants’ claim. Hunley was injure d while he was performing one of the very tasks that he was hired to perform: providing a head count to th e fire b rigade

captain . Althoug

h Hunley could not know the precise location where he would find the fire brigad e capta in at the ti

me of the spill, it wa s nonethe less clear that carry

ing 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 brigad e capta in would be

found, he

would be d

ealing with the stress of a chemical spill — the very reason for the head count. Consequently, when Hunle y was hired by

Pinkerton and was provided w

ith his Site Po st Order s requir ing him to deliver a head c ount in the

event of a spill, he

necessa rily assumed the risk of encountering the stress rela ted to such a spill.

Moreove r, we not e that not just toxic spi lls, but ne arly any situation that requires the presence and action of a security g uard, by its nature, e

mbodies a certain degree of stress. T hus, when

Hunley was hire d by

Pinkerton

to 20 Hunley, et al. v. DuPont Automotive No. 01-2733

provide security f

or DuPont, he assumed a general risk of encountering and dealing with any and all stressful situations relating to the plant’s security . Hunley ca nnot now recoup damages for ha rm that was allegedly

caused by perfor ming the basic dut y th at he wa s hired to

perfor m: encountering a stressful situation relating to the plant’s
se cu ri ty. Accordingly , we AFFIRM the district court’s ruling on the alternative basis of assumption of risk.

IV. CONCL USION For all of the foregoing

reasons, we AFFIRM

the district court’s ruling g ranting summary judgmen t to DefendantAppellee.