Jerrilyn Hunley; Jerome Hunley v. DUPONT AUTOMOTIVE, Division of E.I. DuPont de Nemours and Co., Inc.

*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0304P (6th Cir.)
File Name: 03a0304p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JERRILYN HUNLEY; JEROME
HUNLEY,
Plaintiffs-Appellants,
v.
DUPONT AUTOMOTIVE,
Division of E.I. DuPont de
Nemours and Co., Inc.,
Defendant-Appellee.
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No. 01-2733
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-72043—Nancy G. Edmunds, District Judge.
Argued: June 17, 2003
Decided and Filed: August 25, 2003
Before: BOGGS and GILMAN, Circuit Judges;
MARBLEY, District Judge.*
2 Hunley, et al. v. DuPont Automotive No. 01-2733
_________________
COUNSEL
ARGUED: Donnelly W. Hadden, Ann Arbor, Michigan, for
Appellants. Raymond Michael Ripple, E.I. DU PONT DE
NEMOURS AND COMPANY, Wilmington, Delaware, for
Appellee. ON BRIEF: Donnelly W. Hadden, Ann Arbor,
Michigan, Patrick D. Ball, Mount Clemens, Michigan, for
Appellants. Raymond Michael Ripple, Donna L. Goodman,
E.I. DU PONT DE NEMOURS AND COMPANY,
Wilmington, Delaware, Robert S. Krause, DICKINSON,
WRIGHT, PLLC, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
ALGENON L. MARBLEY, District Judge. This is a
negligence action that was removed to federal court based on
diversity jurisdiction. Plaintiffs-Appellants, Jerrilyn Hunley,
individually and as guardian of the estate of Jerome Hunley,
and Jerome Hunley, brought suit against Defendant-Appellee,
DuPont Automotive, Division of E.I. DuPont de Nemours and
Co., Inc., for harm incurred by Jerome Hunley after his
exposure to a large paint spill in the DuPont Automotive plant
in which he was working as a security guard. Plaintiffs-
Appellants now appeal the district court’s ruling granting
summary judgment to Defendant-Appellee. The district court
exercised jurisdiction over this matter pursuant to 28 U.S.C.
§ 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.

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

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No. 01-2733 Hunley, et al. v. DuPont Automotive 5
4Apparently, one full day passed between the night of the spill and
the day that Hunley drove to his grandmother’s home. Hunley has no
recollection o f what occurred on that intervening d ay.
Hunley states that, shortly after delivering the report to the
fire captain, he began to have “rushing thoughts,” which he
describes as “too many thoughts running through [his] head
at once,” and that he also began feeling dizzy. After working
the night of the spill, Hunley went home and tried to sleep.
While trying to sleep, however, he began hallucinating. In
particular, he claims that he heard “whale sounds” and saw
“upside down people.” Hunley then drove to his
grandmother’s home, thinking that would help calm him.4
On the drive back home from his grandmother’s house,
Hunley’s hallucinations continued. In response to one of the
hallucinations, Hunley began driving his truck at speeds
estimated to be between sixty and ninety miles per hour
against rush hour traffic in Troy, Michigan. Ultimately, his
car became airborne, and then landed on top of the car of a
nineteen-year-old woman, who was pronounced dead at the
scene of the accident. Immediately following the accident,
Hunley was transported to a nearby hospital, where he was
initially diagnosed with brief reactive psychosis, a temporary
diagnosis used to explain his acute psychotic 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-four years old at the time. After a series of
mental evaluations following the accident, Hunley was
ultimately diagnosed with schizophrenia, an organic mental
disease that frequently manifests itself when sufferers are in
their late teens or early twenties. He has also been diagnosed
as suffering from an “acute psychotic break” accompanied by
auditory and visual hallucinations at the time of the accident.
Hunley’s expert, Dr. Gerald Shiener, M.D., opines that
Hunley’s psychotic break was brought on by the stress of
knowing that he had been exposed to toxins in the area of the
6 Hunley, et al. v. DuPont Automotive No. 01-2733
spill by being in the area without protective gear while all
others in the vicinity of the spill were protected by special
clothing and masks.
Following one year of hospitalization, Hunley was tried on
a charge of manslaughter for the death of the nineteen-year-
old woman in the car accident. At the conclusion of the trial,
he was found guilty but mentally ill. He is currently
incarcerated, serving a term of four to fifteen years.
B. Procedural History
Plaintiffs-Appellants originally filed this case in the Circuit
Court for the County of Macomb on January 28, 2000.
Defendant-Appellee removed the case to the United States
District Court for the Eastern District of Michigan on May 8,
2000, on the basis of diversity of citizenship. On
November 28, 2001, after discovery had been completed, the
district court issued an opinion and order granting summary
judgment to Defendant-Appellee. Plaintiffs-Appellants filed
their notice of appeal from that order on December 18, 2001.
II. STANDARD OF REVIEW
The district court’s grant of summary judgment is subject
to de novo review by this Court. Peters v. Lincoln Elec. Co.,
285 F.3d 456, 465 (6th Cir. 2002) (citing 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 judgment
according to the same standard that the district court applies.
Summary judgment is appropriate “[i]f the pleadings,
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.
56(c). The movant has the burden of establishing that there
are no genuine issues of material fact, which may be

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No. 01-2733 Hunley, et al. v. DuPont Automotive 7
accomplished by demonstrating that the non-moving party
lacks evidence to support an essential element of its case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Logan
v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001). In
response, the non-moving party must present “significant
probative evidence” to show that “there is [more than] some
metaphysical doubt as to the material facts.” Moore v. Philip
Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993).
“[S]ummary judgment will not lie if the dispute is about a
material fact that is ‘genuine,’ that is, if the evidence is such
that a reasonable jury could return a verdict for the non-
moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
In evaluating a motion for summary judgment, the evidence
must be viewed in the light most favorable to the non-moving
party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970). The non-moving party, however, “may not rest upon
its mere allegations . . . but . . . must set forth specific facts
showing that there is a genuine issue for trial.” FED. R. CIV.
P. 56(e); see Celotex, 477 U.S. at 324; Searcy v. City of
Dayton, 38 F.3d 282, 286 (6th Cir. 1994). The existence of
a scintilla of evidence in support of the non-moving party’s
position will not be sufficient; there must be evidence on
which the jury could reasonably find for the non-moving
party. Anderson, 477 U.S. at 251; Copeland v. Machulis, 57
F.3d 476, 479 (6th Cir. 1995).
III. DISCUSSION
A. Negligence
The district court granted summary judgment to DuPont on
the ground that Hunley failed to set forth a prima facie case
of negligence. To state a prima facie case of negligence in
Michigan, the plaintiff must establish the following four
elements: (1) that the defendant owed the plaintiff a duty;
(2) that the defendant breached that duty; (3) that the
defendant’s breach caused the plaintiff’s harm, which
8 Hunley, et al. v. DuPont Automotive No. 01-2733
includes (a) cause in fact and (b) legal, or proximate, cause;
and (4) damages to the plaintiff. Case v. Consumers Power
Co., 615 N.W.2d 17, 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 breach that duty
through its conduct. Based on the analysis set forth below,
we conclude that, although Plaintiffs-Appellants raised a
genuine issue of fact with respect to both duty and breach,
summary judgment was nonetheless proper because they
failed, as a matter of law, to establish a genuine issue of
material fact as to the existence of proximate cause.
1. Existence of a Duty
DuPont argues that Plaintiffs-Appellants have failed to
establish the duty element of the prima facie case because it
had neither a duty to provide Hunley with personal protective
equipment, nor a duty to warn him that a psychotic break was
a danger associated with visual exposure to a paint spill.
DuPont errs, however, by viewing the issue of duty so
narrowly. Although it may not have owed these particular
duties to Hunley, it did have a general duty to exercise due
care to protect its security guards, including Hunley, from
certain dangers associated with paint spills. This duty arises
from the relationship between DuPont and Hunley of
premises owner and invitee.
Generally, “[a]n invitee, and in this case a business invitee,
is one who enters a premises to conduct business that
concerns the premises owner at the owner’s express or
implied invitation.” Riddle 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 business invitee. Beals v. Walker, 331 N.W.2d 700, 704
(Mich. 1982) (recognizing that an employee of an
independent contractor who had been hired by the premises
owner to do repair work was an invitee of the premises
owner); see Case v. Wal-Mart Stores, Inc., 13 F. Supp. 2d
597, 602 (S.D. Miss. 1998) (citing Beals for the proposition

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No. 01-2733 Hunley, et al. v. DuPont Automotive 9
that, in Michigan, an employee of an independent contractor
is a business invitee). Here, Pinkerton had a contract to
provide security services to DuPont, and Hunley was an
employee of that independent contractor. Thus, under Beals,
Hunley was a business invitee on DuPont’s premises.
A premises owner has a duty to exercise reasonable care to
protect invitees from unreasonable risks of harm caused by a
dangerous condition on the premises. Williams v.
Cunningham Drug Stores, Inc., 418 N.W.2d 381, 383 (Mich.
1988) (citing RESTATEMENT (SECOND) OF TORTS § 343, at
215-16). The owner’s duty is not absolute, however. “It does
not extend to conditions from which an unreasonable risk
cannot be anticipated . . . .” Id.; Stabnick v. Williams Patrol
Serv., 390 N.W.2d 657, 658 (Mich. Ct. App. 1986) (holding
that premises owners have no duty to warn invitees of
unforeseeable dangers). A premises owner has a duty to warn
invitees only of known dangers, or dangers that should have
been known through the exercise of reasonable care, which
the premises owner understands or should have understood
would pose an unreasonable risk. Bertrand v. Alan Ford,
Inc., 537 N.W.2d 185, 186 (Mich. 1995).
Applying the Cunningham Drug Stores standard, we
believe that DuPont had a duty to exercise due care to protect
its security guards, including Hunley, from the known
dangers associated with paint spills that pose an unreasonable
risk of harm. Although DuPont did not have a duty to protect
its security guards from unreasonable risks that could not be
anticipated, it is clear that the company did anticipate at least
some unreasonable risks from paint spills. The fact that
DuPont must have been aware of at least some risks
associated with paint spills is evidenced by the fact that it
provided its own emergency personnel with protective
equipment, including special clothing and masks, with which
they equipped themselves before entering the area of the spill.
Were it not for the existence of some dangers that were
known and anticipated by DuPont to pose an unreasonable
risk of harm, the company likely would not have equipped its
10 Hunley, et al. v. DuPont Automotive No. 01-2733
response personnel with such protective gear. Therefore, as
the premises owner, DuPont was under an obligation to
exercise due care to protect its security guards from these
known risks.
Accordingly, we conclude that Plaintiffs-Appellants
satisfied the duty element of their prima facie case.
2. Breach
Plaintiffs-Appellants assert that DuPont breached its duty
to Hunley by failing to provide him with protective gear, by
failing to warn him about the nature of the hazards associated
with paint spills, and by failing to warn him about the risks
inherent in delivering the head count to the fire brigade
captain. In addition, they argue that DuPont breached its duty
when it allowed Hunley to enter the area of the spill through
an open door.
First, we agree with the district court that DuPont did not
breach its duty to Hunley by failing to provide him with
protective gear. As indicated above, the duty imposed upon
DuPont is a duty to protect its security guards from known
dangers that DuPont understands pose an unreasonable risk of
harm. Although the paint spill presented a risk, DuPont had
no reason to know that it would present a risk to Hunley. 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 gear is to protect
those employees who will be exposed to the spill itself.
Because DuPont reasonably believed that, as a Pinkerton
security guard, Hunley would not respond to the scene of the
spill, DuPont could not have breached its 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 warn him of the dangers
associated with toxic spills and with delivering head counts
to the fire brigade captain in the area of those spills.

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No. 01-2733 Hunley, et al. v. DuPont Automotive 11
Although those dangers exist, and were known by DuPont,
DuPont had no reason to foresee that Hunley would be
exposed to those dangers; DuPont’s management reasonably
believed that Hunley’s Site Post Orders prohibited him from
entering the area of the spill. Thus, DuPont had no reason to
believe that these dangers posed an unreasonable risk of harm
to Hunley. Therefore, DuPont did not breach its duty by
failing to give Hunley these warnings.
A question of fact exists, however, with respect to whether
DuPont may have breached its duty to protect Hunley from
the dangers of paint spills by leaving open a door to the spill
area. DuPont asserts that all doors to the area of the spill
were closed upon evacuation of the employees who had been
working in the area prior to the spill. Hunley, on the other
hand, alleges that he entered the area to deliver the head count
through an open door. Thus, an issue 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 that Pinkerton security guards were not to enter
the area of the spill, a jury might find that DuPont should
have foreseen that a security guard would nonetheless enter
the area if a door were left open. In particular, the risk of a
security guard entering the area of the spill through an open
door might have been foreseeable in light of the fact that the
security guard was told to deliver a head count to the fire
brigade captain, wherever he may be. Moreover, although
DuPont’s other failures do not in and of themselves constitute
a breach of DuPont’s duty, those failures certainly become
factually significant if DuPont could have foreseen that, by
leaving a door open, Hunley might enter the area of the spill
despite his Site Post Orders to the contrary.
Therefore, we conclude that the Plaintiffs-Appellants
satisfied the breach element of their prima facie case to the
extent necessary to survive summary judgment.
12 Hunley, et al. v. DuPont Automotive No. 01-2733
3. Causation
We now turn to the question of whether Plaintiffs-
Appellants have raised a genuine issue of material fact with
respect to the issue of causation. To satisfy this element,
Plaintiffs-Appellants must demonstrate both cause in fact and
legal, or proximate, cause. Based on our conclusion that
Plaintiffs-Appellants have failed to demonstrate proximate
cause as a matter of law, we need not reach the issue of cause
in fact.
Relying on La Pointe v. Chevrette, 250 N.W. 272 (Mich.
1933), Hunley asserts that, under Michigan law, proximate
cause requires only that the harm suffered by the plaintiff be
the natural and probable result of the defendant’s negligence,
not that the particular harm suffered be foreseeable. In
La Pointe, a young boy suffered an unusual infection of the
bone in his leg after his employer forced him to work
outdoors in inclement weather without the proper protective
clothing. In ruling that the employer could be liable for the
boy’s disease, even though it was not foreseeable that such a
severe illness would result from working outside in inclement
weather, the court stated:
“Where an act is negligent, to render it the proximate
cause, it is not necessary that the one committing it might
have foreseen the particular consequence or injury, or the
particular manner in which it occurred, if by the exercise
of reasonable care it might have been anticipated that
some injury might occur.”
Id. at 275 (quoting Baker v. Mich. Cent. R.R. Co., 135 N.W.
937, 940 (Mich. 1912)).
Although this language in La Pointe suggests that the
particular harm suffered by the plaintiff need not have been
foreseen for there to be proximate cause, more recent
Michigan case law sets forth a different standard of law.
Recent cases indicate that Michigan courts have shifted their

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No. 01-2733 Hunley, et al. v. DuPont Automotive 13
5Although proximate cause often must be resolved by the jury, the
Court may decid e this issue as a matter of law if reasonable m inds co uld
not disagree with re spect to the resolution of this issue. Nichols v. Dobler,
655 N .W.2d 787, 788 (Mich. Ct. App. 2002 ).
analysis of this issue and, under the current view, the
determination of proximate cause involves an examination of
the foreseeability of the harm suffered by the plaintiff, and
whether the defendant should be held responsible for such
harm. Haliw v. Sterling Heights, 627 N.W.2d 581, 588
(Mich. 2001) (finding that “‘legal cause or “proximate cause”
normally involves examining the foreseeability of
consequences, and whether a defendant should be held legally
responsible for such consequences’”) (quoting Skinner v.
Square D Co., 516 N.W.2d 475, 479 (Mich. 1994)); Moning
v. Alfono, 254 N.W.2d 759, 765 (Mich. 1977) (stating that
proximate cause turns on whether the result of the defendant’s
conduct was foreseeable). Indeed, even some cases that
predated La Pointe indicate that proximate cause requires that
the particular harm suffered by the plaintiff be foreseeable.
Luck v. Gregory, 241 N.W. 862, 864 (Mich. 1932) (stating
that proximate causation requires not only that the plaintiff’s
harm be the natural and probable result of the defendant’s
conduct, but also that “it ought to have been foreseen, in the
light of the attending circumstances”); Clumfoot v. St. Clair
Tunnel Co., 190 N.W. 759, 760 (Mich. 1922) (recognizing
that proximate cause requires that the reasonably prudent
person would have foreseen or anticipated the plaintiff’s harm
as a result of the defendant’s negligence).
Accordingly, we will apply Michigan’s more recent
principle of proximate cause in examining whether Plaintiffs-
Appellants have raised a genuine issue of material fact with
respect to this element.5 Applying this standard, it is clear
that Plaintiffs-Appellants have failed to establish this element
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
14 Hunley, et al. v. DuPont Automotive No. 01-2733
6It 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
being forced to work outdoors in inclement weather. Here, on the other
hand, it was not foreseeable that any harm would result to Hunley from
the stress of knowing that he was in the area of the toxic spill without
protective gear. Furthermore, because security guard s are expected to
react to situations that would likely cause stress, it was not foreseeable
DuPont’s having left the door to the spill area open. Even if
it was foreseeable that a security guard not clothed in
protective gear would enter the area of the spill and see other
individuals in the area wearing protective gear, it was not
reasonably foreseeable that, as a result of doing so, he would
suffer the harm incurred by Hunley. Hunley’s own expert,
Dr. Shiener, stated simply that he believed that some of the
mental health literature indicated that there was a relationship
between the onset of psychosis and exposure to stressful
situations. This statement does not indicate that exposure to
stressful situations is certain to cause psychosis, or that even
mental health experts can foresee which stressful situations
will cause psychosis. Accordingly, no reasonable mind could
find that it was foreseeable that exposure to this stressful
situation would have resulted in Hunley’s illness.
Furthermore, we are of the opinion that Hunley failed to
establish proximate cause even under the more lenient
standard of foreseeability that he contends applies under these
circumstances. It may have been foreseeable that some
physical harm might result from exposure to the paint spill.
Plaintiffs-Appellants, however, argue not that Hunley’s
psychotic break resulted from exposure to the spill itself, but
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
not wearing protective gear, although others in the area were
wearing such gear. We conclude, as a matter of law, that it
was not reasonably foreseeable that any harm, let alone the
particular harm suffered by Hunley, would have resulted from
this stress.6

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No. 01-2733 Hunley, et al. v. DuPont Automotive 15
that stress would cause this type of reaction.
Therefore, we AFFIRM the district court’s ruling granting
summary judgment to DuPont, but do so on the ground that
Hunley failed to raise a genuine issue of material fact with
respect to proximate cause, a key element of his prima facie
case of negligence.
B. Assumption of Risk
As an alternative basis for its ruling, the district court found
that, even if Hunley had satisfied all four elements of his
prima facie case, summary judgment was nonetheless proper
based on the affirmative defense of assumption of risk. We
agree, and find that, in addition to the proximate cause
analysis set forth above, the doctrine of primary assumption
of risk also supports the district court’s ruling granting
summary judgment to DuPont.
1. Propriety of District Court’s Reliance on Assumption
of Risk
As a threshold matter, Plaintiffs-Appellants argue that it
was improper for the district court to apply the doctrine of
assumption of risk to this case because that affirmative
defense was not argued by the Defendant either in its
written motion for summary judgment or during oral
argument on the motion. We conclude, however, that the
district court acted within its authority in relying upon this
doctrine. A district court may properly grant 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 grant summary
judgment on a ground other than that assigned in the
motion.”). Therefore, we proceed to consider the merits of
the defense under these circumstances.
16 Hunley, et al. v. DuPont Automotive No. 01-2733
2. Application of the Doctrine
In its opinion, the district court found that Hunley was
prevented from recovering against DuPont because he was
harmed while performing the very duty that he was hired to
perform: delivering the head count to the fire brigade
captain. On appeal, Plaintiffs-Appellants assert that the
district court erred because the Michigan Supreme Court
has determined that the doctrine of assumption of risk is no
longer viable as an affirmative defense, except in very
specific circumstances. In particular, they state that the
doctrine is viable only when the plaintiff was an employee
of the defendant and assumed an express contractual
assumption of risk for purposes of his employment. They
assert that those circumstances are absent here, and that,
therefore, the defense cannot apply to bar their claim.
Contrary to Plaintiffs-Appellants’ characterization of the
current state of the law in Michigan with respect to
assumption of risk, we find that the affirmative defense is
still viable, and, moreover, that it applies under these
circumstances.
In Kreski v. Modern Wholesale Electric 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 plaintiff because the plaintiff agreed in
advance to relieve the defendant of a duty of care, and
secondary assumption of risk, which involves a situation in
which the plaintiff voluntarily encounters a known risk
without first manifesting assent to relieve the defendant of
liability. Id. at 185. The Kreski court found that, although
Felgner v. Anderson, 133 N.W.2d 136 (Mich. 1965),
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

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No. 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 been working.
Carter, 379 N.W.2d at 410. The security guard brought a
negligence action against the theater for failing to prevent
the assailants from reentering the theater after they had
been ejected. Id. After the trial court denied summary
judgment to the defendant, the Michigan Court of Appeals
reversed, finding that the plaintiff could not recover from
the theater because he was injured while 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 district court below, a hospital hired a private security
company to provide security for invitees of the hospital.
The plaintiff’s decedent, an employee of the private
security company, was shot and killed while on duty at the
hospital. In rejecting the plaintiff’s wrongful death claim,
the Turner court stated:
In this case, defendant hospital, recognizing a duty to
safeguard, protect and secure its patients, visitors,
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 employer were
hired, i.e., to safeguard against criminal acts of
violence. It would be ironic to hold defendant hospital
liable to an employee of the very security guard
company it hired for protection.
Id. at 715.
Relying on both Carter and Turner, the court in In re Air
Crash Disaster at Detroit Metropolitan Airport on August
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
psychological 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 suffered because the alleged psychological 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
rationale underlying those cases was the same rationale
underlying the affirmative defense. In particular, the court
stated:
“. . . [it] is a term of the contract of employment,
express or implied from the circumstances of the
employment, by which the servant agrees that dangers
of injury obviously incident to the discharge of the
servant’s duty shall be at the servant’s risk. In such
cases the acquiescence of the servant in the conduct of
the master does not defeat a right of action on the
ground that the servant causes or contributes to the
cause of the injury, but . . . no right of action arises in
favor of the servant at all, for, under the terms of the
employment, the master violates no legal duty to the
servant in failing to protect him from dangers the risk
of which he agreed expressly or impliedly to assume.”
Air Crash Disaster, 737 F. Supp. at 413 (quoting Felgner,
133 N.W.2d at 149 n.4) (alterations in original).
Under the reasoning of Air Crash Disaster, Carter, and
Turner, which this Court hereby recognizes as an accurate

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No. 01-2733 Hunley, et al. v. DuPont Automotive 19
statement of Michigan law, Hunley is prevented from
recovering from DuPont for the harm he suffered while
providing the head count to the fire brigade captain. Air
Crash Disaster, Carter, and Turner belie Hunley’s
contention that the doctrine of assumption of risk applies
only when the plaintiff was an employee of the defendant
and expressly contracted to assume the risk. In each of
those cases, as here, the plaintiff was an employee of the
independent security company that had been hired by the
defendant to provide security services. Moreover, none of
those cases required evidence of an express contractual
assumption of risk for the doctrine to apply. Rather, in
those cases, as here, the private security guards implicitly
assumed certain risks based on the nature of the work that
they were hired to do.
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
20 Hunley, et al. v. DuPont Automotive No. 01-2733
provide security for DuPont, he assumed a general risk of
encountering and dealing with any and all stressful
situations relating to the plant’s security. Hunley cannot
now recoup damages for harm that was allegedly caused by
performing the basic duty that he was hired to perform:
encountering a stressful situation relating to the plant’s
security.
Accordingly, we AFFIRM the district court’s ruling on
the alternative basis of assumption of risk.
IV. CONCLUSION
For all of the foregoing reasons, we AFFIRM the district
court’s ruling granting summary judgment to Defendant-
Appellee.

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