285 F.3d 448 (6th Cir. 2002), 00-1763, Upsher et al v. Grosse Pointe Pub

Docket Nº:00-1763/ 1764/1765
Citation:285 F.3d 448
Party Name:Jesse Upsher; Annie Abraham; Edward Brodzik; Jeanette Brodzik; Henry Huczek; Aurelia Huczek; Stephen Kalmus; Catherine Kalmus; Karen Kohl; Tracy Thacker; John O'Loughlin, Plaintiffs-Appellants, v. Grosse Pointe Public School System; Grosse Pointe Board of Education; Suzanne Klein; Christian Fenton; Timothy Howlett; Paul Pagel; Carl Anderson; Jack R
Case Date:April 04, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 448

285 F.3d 448 (6th Cir. 2002)

Jesse Upsher; Annie Abraham; Edward Brodzik; Jeanette Brodzik; Henry Huczek; Aurelia Huczek; Stephen Kalmus; Catherine Kalmus; Karen Kohl; Tracy Thacker; John O'Loughlin, Plaintiffs-Appellants,

v.

Grosse Pointe Public School System; Grosse Pointe Board of Education; Suzanne Klein; Christian Fenton; Timothy Howlett; Paul Pagel; Carl Anderson; Jack Ryan; John Mills; Cynthia Pangborn; Sears Taylor; Mary Beth Herman; Jay Jeffries; Steve Matthews; Ed Shine; Larry Yankauskas, individually and in their respective capacities, Defendants-Appellees.

Nos. 00-1763/ 1764/1765

United States Court of Appeals, Sixth Circuit

April 4, 2002

Argued: January 29, 2002

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. Nos. 98-72740; 98-72103; 98-71261--Anna Diggs Taylor, District Judge.

Page 449

Before: RYAN and GILMAN, Circuit Judges; POLSTER, District Judge.[x]

COUNSEL ARGUED: Philip E. Chaffee, LAW OFFICE OF PHILIP E. CHAFFEE, Grand Rapids, Michigan, for Appellants.

Timothy D. Wittlinger, CLARK HILL PLC, Detroit, Michigan, for Appellees.

ON BRIEF: Philip E. Chaffee, LAW OFFICE OF PHILIP E. CHAFFEE, Grand Rapids, Michigan, for Appellants.

Timothy D. Wittlinger, Evelyn L. Sullen, CLARK HILL PLC, Detroit, Michigan, for Appellees.

OPINION

RYAN, Circuit Judge.

Jesse Upsher, Annie Abraham, Edward Brodzik, Henry Huczek, Stephen Kalmus, Karen Kohl, Tracy Thacker, and John O'Loughlin (hereinafter collectively referred to as "the plaintiffs") are custodians employed by the Grosse Pointe Public School System. They brought a 42 U.S.C. § 1983 action against the Grosse Pointe Public School System, the Grosse Pointe Board of Education, and various individually named defendants (hereinafter collectively referred to as "the defendants") for alleged injuries from exposure to friable asbestos during a carpet removal job at Grosse Pointe's South High School. Their spouses also brought derivative claims. The district court entered summary judgment for the defendants from which the plaintiffs now appeal.

We must decide whether the plaintiffs' evidence establishes material issues regarding the defendants' liability under Page 450

both 42 U.S.C. § 1983 and the intentional tort exception to the Michigan Worker's Disability Compensation Act, Mich. Comp. Laws Ann. § 418.131(1) (MWDCA). We conclude that it does not and therefore we will affirm the judgment of the district court.

I. FACTUAL BACKGROUND

A. The Parties

Plaintiffs Annie Abraham, Edward Brodzik, Henry Huczek, Stephen Kalmus, Karen Kohl, and Tracy Thacker were custodians employed by the Grosse Pointe Public School System in Grosse Pointe, Michigan. Plaintiffs Jesse Upsher and John O'Loughlin were students at South High School and were employed as temporary custodians. Plaintiff Stephen Kalmus was the foreman and supervised the other custodians. Plaintiffs Jeanette Brodzik, Aurelia Huczek, and Catherine Kalmus are spouses of the allegedly injured custodians who asserted derivative claims of loss of consortium.

The individually named defendants are: Dr. Suzanne Klein (assistant superintendent for the School System during the summer of 1995); Christian Fenton (assistant superintendent for business and support services and designated asbestos coordinator for the School System); Paul Pagel (assistant principal at South High School and administrative supervisor of custodians); Mary Beth Herman (principal at South High School); Jay Jeffries (head engineer at South High School); Dr. Edward Shine (Dr. Klein's predecessor); Larry Yankauskas (supervisor of buildings and grounds for the School System); and named, past and present Grosse Pointe school board members: Timothy Howlett, Carl Anderson, Jack Ryan, John Mills, Cynthia Pangborn, Sears Taylor, and Steve Matthews.

B. The Incident

In early 1995, Grosse Pointe's South High School determined that it would replace the carpeting located in the main office area. Assistant principal Pagel solicited bids from a number of carpeting suppliers and ultimately selected New York Carpet World to remove, replace, and install the new carpeting. After performing initial tests on the vinyl floor tile located beneath the carpeting, New York Carpet World informed Pagel that it refused to complete the project because the machine scrapers it used to remove the carpet might disturb the underlying asbestos-containing tiles. Thereafter, Pagel met with custodial foreman Kalmus, and head engineer Jeffries, and instructed them that South High's custodial staff would complete the carpet removal.

Although the plaintiffs claim that they protested prior to beginning the work, they nevertheless started removing the carpet around July 19, 1995. When they started to remove the carpet, they noticed that some of the underlying vinyl floor tiles were sticking to the back of the old carpeting. To remove these tiles, the plaintiffs chiseled, chipped, pounded, pulverized, hammered, and jackhammered the tiles causing breakage, flying debris, and dust. The defendants did not provide the plaintiffs with particulate air vacuums to clean up the dust and debris or any protective clothing or respirators. All of the plaintiffs except the two student-plaintiffs had received two hours of asbestos awareness training, but none of them had received the additional 14 hours of training required by the Asbestos Hazard Emergency Response Act of 1986 (AHERA), 40 Page 451

C.F.R. § 763.92(a)(2), before conducting activities that would result in the disturbance of asbestos-containing building materials (ACBM).

The plaintiffs allege that they suffer from respiratory irritations, posttraumatic stress disorder, and other physical and psychological problems resulting from their...

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