MICHAEL BARTEE and DIXIE BARTEE v. S K A N S K A U S A B U I L D I N G , Incorporated

The Hon. Curtis L. Collier, United States District Judge for the Eastern District of Tennessee, sitting
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by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0719n.06
Filed: October 4, 2006
No. 05-1823
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL BARTEE and DIXIE BARTEE,
Plaintiffs-Appellants,
v.
S K A N S K A U S A B U I L D I N G ,
INCORPORATED,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
Before: DAUGHTREY and COOK, Circuit Judges, and COLLIER, District Judge.*
PER CURIAM. The plaintiffs, Michael and Dixie Bartee, appeal from the district
court’s order granting summary judgment to the defendant, Skanska USA Building, Inc.,
in this personal injury action arising from burns suffered by Michael Bartee while working
with a defective acetylene torch on a school building expansion project for which Skanska
was construction manager. Michael Bartee was not employed by Skanska, however, but
by Cadillac Iron, Inc., which had a separate and independent contract with the school
district. The plaintiffs nevertheless sued Skanska, setting out a number of theories of
liability, including active or direct negligence, nuisance per accidens, and agency. The
district court granted summary judgment in favor of the defendant, finding either that the

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No. 05-1823
Bartee v. Skanska USA Building, Inc.
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legal theory advanced by the plaintiffs was not recognized under state law or that the facts
did not support the allegations in the complaint. We find no error and affirm.
We gather from our reading of the plaintiffs’ brief and counsel’s oral argument that
the main complaint on appeal is the district court’s failure to send the case to the jury,
thereby “depriv[ing] the plaintiffs of their day in Court.” Try as they might, however, the
plaintiffs were not able to raise a material issue of disputed fact that would have supported
a basis recognized by state law on which to send the case to trial. The district court found,
for instance, that the defendant could not be considered liable for the negligent
employment of Cadillac Iron because “Michigan has not recognized a duty requiring an
employer to exercise care in the selection and retention of an independent contractor.”
Reeves v. K-Mart Corp., 582 N.W.2d 841, 846 (Mich. App. 1998). The district court further
found that the defendant was not liable for failure to warn the plaintiff of hazardous
equipment of which it was aware, because the undisputed proof was that Skanska was not
aware of the hole in the acetylene torch that caused the fire and resulted in Michael
Bartee’s injury, and there was no evidence that any Skanska employee should have been
aware of a defect in equipment that, under the contract, was owned and maintained by
Cadillac Iron. The district court also discounted the plaintiffs’ nuisance theory, because
there was no proof that Skanska owned or controlled the acetylene torch or created the
hole in the torch that caused the fire. Indeed, it was a Cadillac Iron supervisor who, when
informed of the hole, instructed Bartee to use the torch anyway, covering the hole tightly
with his gloved hand as he did so. Likewise, the plaintiffs’ negligent work supervision

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No. 05-1823
Bartee v. Skanska USA Building, Inc.
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claim against Skanska was held to fail because the evidence did not show that the injury
was the result of “readily observable and avoidable danger . . . that created a high degree
of risk to a significant number of workmen . . . in a common work area,” a recognized
exception to the general Michigan rule that a contractor cannot be held liable for the
negligence of independent contractors and their employees. Ormsby v. Capital Welding,
684 N.W.2d 320, 326 (Mich. 2004). Finally, the plaintiffs’ agency theory, based on
respondent superior, was found to be untenable because the two companies, Skanska and
Cadillac Iron, had individual contracts with the premises owner and there was no proof that
either one was the agent of the other.
Having had the benefit of oral argument, and having studied the record on appeal
and the briefs of the parties, we are not persuaded that the district court erred in dismissing
the complaint. Because the reasons why judgment should be entered for the defendant
have been fully articulated by the district court, the issuance of a detailed opinion by this
court would be duplicative and would serve no useful purpose. Accordingly, we AFFIRM
the judgment of the district court upon the reasoning set out by that court in its order and
opinion dated May 11, 2005.

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