recall the next fifteen twenty twenty two gloria barnes versus sun chemical corporation oral argument not to exceed fifteen minutes per side mr cabot for the plaintiff appellant good afternoon your honors may please the court shown cabinet on behalf of the appellant and i would like to reserve three minutes for rebuttal at this time  aren't as the court is aware this is the case involving the tragic death of eighty barns where he was crushed to death by a sixteen hundred pound press kate while employed at sun chemical corporation commonly referred to it as the floor to the upper mezzanine level where they would put it down and then each subsequent bag would be pushed back with what's called the push back method which ult caused mr burns is death is a court is aware this was the diversity action it was originally filed in the skiing county circuit court on them because of the versity of the parties it was removed to the federal record was clear that mr barnes had a very good record with the company he didn't have any things in his employment file indicating he didn't follow the rules he didn't that he didn't follow the safety requirements anything like that and so we have this this transfer of the pigment on the day of this incident which the record is complete that this transportation method occurred all the time and basically what would happen was the hi lo driver would activate a pull cord which would cause the gate to go up there were supposed to be a flashing morning light that would also work but the record is very clear from the deposition not only of the employees but from the sheriff's deputy believe it was foster who investigated on the day the incident that this emergency l didn't work and it really was this emergency light that would alert people to the fact that there was conflicting testimony and it was one of the more the witnesses he wants to know where the light was working  well i think it think what happened was i don't know if there's necessarily conflicting testimony i know that when defendants when the sheriff's deputy was there he said that when he was there he stood around for quite a while and it would only occasionally work and then we have the deposition testimony i believe it was  mr collins who was actually a court is aware had a near mess happen to him the exact same type of incident or press cake actually fell and grazed him back in ninety nine he said he had never seen the warning light work and that's in his deposition testimony and then we had  extent there is conflicting testimony that's even one more reason that at minimum the case should have been submitted to the jury because that warning light is a huge issue and the e have the gate go up in case of the gates up the only real thing that you have to alert anybody that they're doing overhead work is that warningly and there was evidence that the warning light had worked in the pass a bit arguably conflicting evidence but if that warning late didn't work or it didn't work consistently in the past and there is evidence that it was reported the management that is most certainly willful disregard and that knowledge they basically just set it aside and to say that it's negligence it is not negligence it is willful disregard and i think that's what the case  let me just take a look ounds deposition testimony cast around she said before this incident she witnessed the warning light not working more than once when the overhead mezzanine gate was open and reported this to her team and i don't know that the record ever revealed who that was but she very clearly testify that she said when the curve that she observed the she reported in terms of relationship of the time of her observation for the time of the accident here i don't think she could give a time and i think the she was asked to happen days weeks and months and i don't think she could give it a specific time but i think i think that's important you know that raises an important point because in the travis case which is kind of the michigan supreme court kind of case that kind of all the cases center around an offshoot from they address whether an injury is certain to occur in the really interesting statement that said just because something is happening before or an occasion does not mean it's going to be certain to occur but it also went on to say that just because something has never happened before is not proof that it is not certain to occur and i think regardless of whether it happened a week before a month before year before or a decade before such as what my colleagues argue about the ninety nine collins incident the fact that they were aware that the warning lights didn't work that they were reported to is certain evidence that is proof that this is going to occur and so we had the situation that you also have the nine hundred ninety nine incident everybody know knew it as the collins and kind of had its own phraseology there in the plant indicating in and of itself that it was common knowledge people knew that this collin's back in ninety nine had basically the same area same type of thing happen press cake fell he was raised they knew about it they also knew that there are a number of instances where pallets and i think a drum filter had even fallen from the upper upper mezzanine and in fact miss brown and mr ponchos both employees testified that they had seen objects fall from the mezzanine and reported it to management and it was it was henderson according my a fiber drum fall from the mezzanine so we have the collins incident you have these near misses that occur subsequent to that that all indicate they knew there was an injury that was going to occur that had occurred in the past these things happened before they didn't take care of it it's interesting also that the employees testified that these this walkway were mr barnes was killed was frequently traveled by the employees and that management knew it how do we know management knew that well one of the management official says well i gave somebody a verbal warning now that's very interesting because if this was so serious and if the company took it seriously they would have certainly done more than just give a verbal warning which probably wasn't even documented in a personnel file if this was so serious they would have documented it in a personnel file and certainly given more than a mere verbal warning so their their approach to their discipline for walking in these suppose chris kate fallen and when those incidents occur the drum filter the fiber drum fell i believe it was in two thousand two thousand and one that was the incident  period they could not give it they also could not give a number of times i remember in the deposition they were asked was was it more than five more than twenty they just couldn't account but i don't think that's the spa's of the other side dispositive but it's report on the accident report be created to be written up and preserved and these things have to be submitted to the occupational health and safety agency and all that sort of thing what do those records show well the only one that i'm aware of was the my osha report and that's the michigan actually patient safety health association michigan that was regarding you all did do discovery to find out what reports and such of that nature would exist right and i don't i don't believe your honor that anything even if it was reported don't recall that it was produced or at least not produced in the record that i could see some of it was verbal which there wouldn't be and there was indication a record of how these complaints are vulnerable and presumably they were not documented in the writing but the fact that they were reported to supervisory personality even the case law from the cases in michigan support that that's sufficient all right  the morning ordering jeff dorm on behalf of sun chemical and may it please the court other is no dispute here that this case involves a tragic workplace accident but the district court properly held that it does not rise to the level of intentional toward travis which was already referred to as the seminal case in michigan on this particular issue talks about the workers compensation system in michigan and gives the legislative history to that and the idea is that under michigan along in injured employee who's injured at the workplace receives compensation and in order to preserve that system and assure that employees can receive that compensation it's only in the context of an intentional tort where you can get recovery beyond that and in fact trav used the words extraordinary circumstances and an extremely rigorous threshold to meet that this chord in the house decision hauspie johnson controls in two thousand and seven walk through michigan law on this issue and walked through the michigan cases and noted several times at that time four times where the michigan supreme court had some merrily reversed cases and just to give the court an example  alexander in that particular case there was a piece of sheet metal that these pieces of metal go through these large turning objects to form the sheet metal there have been for prior injuries t for two for new employees for two of those were amputations there have been for my osha citations prior to the plates of injury in that particular case and even those facts the court determined that the injuries were not certain to occur in a more recent case just to give you another example because two times since house which was a to suck two thousand seven case again in smith  the michigan supreme court against mary reversed and that was a case where an employee was trained to use a saw with the safety device takedown prior to the injuries again there was a  indication that that particular saw needed to have safety devices on there and again in that particular case the court held that it wasn't sufficient to meet this extraordinarily high burden here there's two critical facts what happened here was that there were two chance on related happenings that together led to a tragic workplace incident what was happening was that high  of pigment were being lifted from the warehouse floor up to a mezzanine level and the operator the high whopper on the mezzanine level testified that when she came out she saw that a bag was slightly tipped slightly off balance on one of the pallets and she said that she decided this is decision number want to attempt to move that and she said and i quote i might have t and she told to do that and she said she also used the word ramping it in the bag walled off that was a chance happening number one number two was that mr barnes was walking underneath the mezzanine at the time and it's undisputed in the record that he was out of a restricted area and that there was another way he could have been walking so the combination of those two chance happenings is what led to this result mean he was in the restricted he was in a restricted area thank you for correcting that there was a designated walkway where he could have been walking and instead of being on that designated walkway  chose to walk off that and walk in a restricted area and again if i could refer to the house case there the court determined that because mr house made a voluntary decision to leave the area and to go to in that case it was these pieces of dye one was being lifted up by hailo he exercised the word they used his volition and because he exercised volition it could not be an injury that was certain to occur  in that particular instance and because he exercised pollution it would not be possible for the employer in that case johnson controls to have actual knowledge ahead of time that that injury was certain to occur so  in order to meet their burden they have to show that the injury was certain to occur that some chemical had actual in knowledge and that some chemical willfully disregarded that actual knowledge and again under the house case you can't have either one you can't have certain certainty of injury and you can't have actual knowledge because not only one but two individuals exercise bullish coming together to cause this tragic accident if you look at the travis case they also talk about certainty of injury there into the travis case what happened was that it woman had been taught to use a press to operate a press and the machine had been cycling improperly in the past she put her hand in it and it cycled when she put her hand underneath it causing her injuries in the court decided on those facts the injury could not be certain because it was only an intermittent risk they compared that to a case in that case it's called film recovery that's an example of a particular case where you could meet the intentional tort exception in film recovery workers were exposed to  fumes dangerous fumes and they intentionally hired workers who could not read or speak english or they couldn't get the warnings that's an example of a case that would constitute continuous  as as far actual knowledge again we put it in the briefing to a number of cases and i'll rely primarily today on the house case which i just described that the employer cannot know one advance what decision an employer ploy might make and therefore there doesn't have actual knowledge another example of that is a more recent case a two thousand and fifteen case out of the michigan court of appeals where an individual was electrocuted and the court said that there was a series of decisions that led up to that point because there was a series of decisions that led up to that point you couldn't have a situation where the employer is imputed with actual knowledge and as far as the third aspect the willful disregard point the court to the traveston good case and specifically marion where in that case there was an explosion in the court said that the because if you remember the travis case there's travis and it also discussed a companion case of go look in go look there was an explosion the employer employee was ordered back to work and because the employee was ordered back to work the court determined that the employer had willfully disregarded the potential risks and that was unlike travis where that was not the case here there's no reason to believe that there's willful disregard we talked a little bit about the one nine hundred ninety net nine incident and subsequent to that incident there were changes that were put into place to try to prevent any future and says i will reference just briefly the blue light which we talked about momentarily the blue light we we were talking both about ms brown ms brown was asked if the white was working or not at the time of the incident refer the court to page six twenty of the record and she said she had no idea whether it was working or not and there were further questions about in the past in no particular time was there ever a time where that light was not working properly and she said there may have been a time and then she was asked if she would have reported it and she said yes but there's no indication that here that was the case and as far as mr collins he testified that there was no blue light at the time of his incident and that's undisputed that the light was not installed till after there is every other employee who testified about that on page three sixty eight of the record the reference specifically but actually testified that the light was working at the warning light and i will mention to the court that it was a diff a different circumstance in that case instead of lifting a bag up to the mezzanine the driver on the top was driving to what's called stage it for it to be brought down just very briefly i would note that the house decision which rather counsel mentioned was a two thousand and seven unpublished decision and i think think it's really factually distinguish injured employee had exercised some independent exercise of discretion and moving out of the safety zone i know brother counsel has indicated that mr barnes was allegedly walking in a no authorized area but they think i think the record clearly shows one that there was some question on a day of this incident whether or not the markings that does it maybe the safety zone or even visible for one of two possible reasons area well i wouldn't agree with that because there's overwhelming testimony by the employees that this was a common pass way that everybody took and so i think over the course of years a sense of what has happened the sun chemical acquiesced to that that method of travel in that in that place of travel by its employees and it knew what occurred and really didn't as i mentioned before took no affirmative steps to make sure that didn't about it giants i mentioned briefly before we knew the company knew about it because i think it was one of the managers who said they had issued a verbal warning and what i'm asking is was there on the record that would substantiate statement you just made let me take a look mr collins testified page thirty one of his deposition he stated to the effect that everyone walked in the area where mr barnes was struck by the basis for their knowledge they sought out the along with miss brown she testified on that she had seen employees walk in that area where the incident happened in her deposition pages sixty five and sixty six people were instructed not to well there was test i don't know that they were instructed by no one of the magic matters said he had issued a verbal warning to someone who done that but again it goes back to my original argument about a verbal warning that really had no teeth and i think it goes to the overall lack of concern and care that the company had from boys thank you all right thank you very much