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### STATE OF MICHIGAN

COURT OF APPEALS

DEAH CHARLES, Personal Re presentative of the

ESTATE OF RYAN CHARLES

Plaintiff-Appellee, UNPUBLISHED January 12, 2016

v No. 323538

Monroe Circuit Court SPARTAN STEEL COATING, LLC, LC No. 13-035216-NO

Defendant-Appellant.

ON REMAND

Before: T ALBOT , C.J., and C AVANAGH and K. F. K ELLY , JJ.

P ER C URIAM

.

This case is before us on remand from our Supreme Court for co nsideration as on leave granted 1 the trial court’s order denying defendant’s motion for summary disposition in this action alleging a claim under MCL 418.131(1), the intentional tort exc eption to the exclusive remedy provision of the Workers’ Disability Compensation Act (WDCA), M CL 418.101 et seq . We reverse and remand for entry of a judgment in defendant’s favor

.

On October 24, 2011, plaintiff’s decedent became trapped and w as crushed while he was making a belt adjustment on a be lt wrapper at the exit end of a steel recoiler machine at defendant’s facility where he worked. In her complaint, plaint iff alleged that on the day of this fatal accident, her decedent was asked to make a belt adjustmen t to this machine. Plaintiff’s decedent notified the exit end machine operator that he was goi ng to make the adjustment and “pulled the plug on the machinery to disable it.” At some poin t the exit end machine operator believed plaintiff’s decedent was done and pressed the “auto pr ep” button which activated the machinery. When the machinery cycled, plaintiff’s decedent bec ame trapped and was crushed. Plaintiff alleged that the plug her decedent pulled before begi nning to work on the machinery only caused a partial lockout—not a complete lockout. Plaintif f also alleged that defendant

knew or should have known that o nly partial lockouts occurred w hen such plug was pulled, which was extremely dangerous and made serious injury and/or de ath “certain to occur” as

1 Charles v Spartan Steel Coating, LLC , 497 Mich 974; 859 NW2d 710 (2015).-2- contemplated under MCL 418.131(1). In her one-count complaint, plaintiff alleged that defendant had actual knowledge that the machinery was not compl etely shut down during a belt adjustment and, thus, knew that an injury was certain to occur but willfully disregarded that knowledge. Accordingly, the intentional tort exception to the exclusive remedy provision of the WDCA, MCL 418.131(1), was applicab le and permitted this action.

Eventually defendant filed a motion for summary disposition pu rsuant to MCR 2.116(C)(10). Defendant argued that, although plaintiff took t he depositions of several of its employees and numerous documents had been produced at her reque st, plaintiff had no evidence to support her claim that defendant deliberately acted or faile d to act with the purpose of causing injury to an employee like her decedent. The particular proces s of adjusting the belt at issue in this case had been used for year s, including by plaintiff’s dec edent, and there was no evidence that any injury ever occurred. Plaintiff simply had neither di rect nor circumstantial evidence establishing the requisite int ent to injure. Accordingly, the WDCA provided the exclusive remedy for plaintiff’s decedent’s death and prevented this acti on.

Plaintiff responded to defendant’s motion for summary disposit ion, arguing that the belt wrapper had been “malfunctioning for years” and required manual belt adjustments 4-5 times a shift; thus, defendant created a “continuously dangerous work e nvironment.” And defendant’s “safety” protocol was to pull a plug, but that did not de-energ ize the entire piece of machinery during this necessary maintenance, i.e., the manual belt adjust ments. In fact, Neil Bruss, defendant’s operations manager, and Chris Shuff, defendant’s ma intenance manager, testified that the belt had not been tracking properly for a long time an d there was no documentation to indicate that this problem was being corrected. Accordingly, p laintiff argued, defendant subjected her decedent to a “co ntinually dangerous operative co ndition” as explained in Travis v Dreis & Krump Mfg Co , 453 Mich 149, 178; 551 NW2d 132 (1996), Johnson v Detroit Edison

Co , 288 Mich App 688, 698; 795 NW2d 161 (2010), and Fries v Mavrick Metal Stamping, Inc

, 285 Mich App 706, 716-717; 777 NW2d 205 (2009). That is, defen dant knew the belt wrapper was continually mis-tracking, ye t the proper safety protocol wa s not in place and employees were forced to manually adjust the belt wrapper which subjected them to a risk of injury and death on a daily basis. Thus, plaintiff argued, defendant’s mo tion for summary disposition

should be denied.

Defendant replied to plaintiff’s responsive brief, arguing tha t plaintiff’s reliance on the “continuously operative dangerous condition” was misplaced. Fo r that doctrine to apply, the employer must know that a condition exists that will in fact ca use injury—either because injury had already occurred or because there was a near-miss—yet the e mployer did not inform its employee about the condition or protect the employee from confr onting the condition. But here, plaintiff’s decedent had performed the same belt adjustment dai ly for about two years before the accident and there was no evidence of any injury occurring or o f any near-misses occurring. “While the belt had to be adjusted a couple of times a shift, t he testimony was there was a specific procedure to be followed and that procedure was safe a nd had been performed for years without incident.” Thus, plaintiff had no evidence proving tha t defendant had actual knowledge that an injury was certain to occur and cannot establish her in tentional tort claim. Accordingly, defendant was entitled to judgment as a matter of law.-3- Following oral arguments, the trial court denied defendant’s m otion for summary disposition. The trial court held that, according to the depos ition testimony, there was a continuous problem with the belt wrapper not tracking right and , while defendant had talked to the manufacturer about the problem, the problem was not correct ed. Defendant’s managerial employees knew about this dangerous problem and such knowledge could be imputed to defendant. The trial court concluded that a genuine issue of m aterial fact existed which precluded summary dispositi on in defendant’s favor.

Defendant filed an application fo r leave to appeal from the tr ial court’s order denying its motion for summary disposition, which this Court denied. Charles v Spartan Steel Coating,

LLC , unpublished order of the Court o f Appeals, entered February 1 7, 2015 (Docket No. 323538). Thereafter, defendant fil ed an application for leave to appeal to our Supreme Court and, in lieu of granting leave to appeal, the Court remanded th is case to us for consideration as on leave granted. Charles v Spartan Steel Coating, LLC , 497 Mich 974; 859 NW2d 710 (2015). The trial court proceedings were also stayed. Id

.

Defendant argues that the trial court erred when it denied its motion for summary disposition because plaintiff had no evidence to support her cl aim that the intentional tort exception to the exclusive reme dy provision of the WDCA applied in this case. We agree.

This Court reviews de novo the trial court’s decision on a mot ion for summary disposition. Pugh v Zefi , 294 Mich App 393, 395; 812 NW2d 789 (2011). “A motion for summary disposition under MCR 2.116(C)(10) tests the factual su fficiency of the complaint.” Huron Mountain Club v Marquette Co Rd Comm , 303 Mich App 312, 321; 845 NW2d 523 (2013). Summary disposition is proper under MCR 2.116(C)(10) where, even considering the evidence submitted by the parties in the light most favorable t o the opposing party, no genuine issue of any material fact was established and, thus, the movin g party is entitled to judgment as a

matter of law. Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999).

An employee’s remedy against an employer for a personal injury is exclusively provided by the WDCA with one exception—a claim alleging an intentional tort. MCL 418.131(1). As explained by our Supreme Court in Travis , 453 Mich at 188:

[T]he issue whether the facts alleged by plaintiff are sufficie nt to constitute an intentional tort is a question of law for the court, while the issue whether the facts are as plaintiff alleges is a jury question. If the latter iss ue were for the court, all jury trials in this type of case would have been eliminated, an d we find that this was not the intention of the Legislature. [Quoting McNees v Cedar Springs Stamping Co , 184 Mich App 101, 104; 457 NW2d 68 (1990).]

The intentional tort excep tion, MCL 418.131(1), provides:

An intentional tort shall exist only when an employee is injur ed as a result of a deliberate act of the empl oyer and the employer specifical ly intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an inj ury was certain to occur and wi llfully disregarded-4- that knowledge. The issue of whether an act was an intentional tort shall be a question of law for the court.

In Travis , 453 Mich at 172, our Supreme Court explained the first senten ce of MCL 418.131(1) as follows: “[T]o state a claim against an employer for an intentional tort, the employer must deliberately act or fail to act with the purpose of inflicting an injury upon the employee.” There must be a specific intent to injure. Id . The Travis Court held that the second sentence of MCL 418.131(1) “will be employed when there is no d irect evidence of intent to injure, and intent must be proved with circumstantial evidence. ” Id . at 173. That is, the second

sentence “is a substitute means of proving the intent to injure element of the first sentence.” Id

.

In that regard, the Travis Court noted that “actual knowle dge” is not cons tructive, impli ed or imputed knowledge, and it is not sufficient to allege that a n “employer should have known, or had reason to believe, that injury was certain to occur.” Id . Further, that an injury is “certain to

occur” means that “no doubt exist s with regard to whether it wi ll occur.” Id . at 174. With regard to this certainty requirement, the Travis Court held: “When an employer subjects an employee to a continuously operative danger ous condition that it knows will cause an injury, yet refrains from informing the employee about the dangerous condition so that he is unable to take steps to keep from being injured, a factfinder may conclude that the employer had knowledge that an injury is

certain to occur.” Id . at 178. And the term “willfully disregard[s]” was “intended to underscore that the employer’s act or failure to act must be more than mer e negligence, that is, a failure to act to protect a person who might foreseeably be injured from a n appreciable risk of harm.” Id

. at 179.

The Travis Court summarized the two senten ces of the intentional tort exc eption as follows: “[A]n employer must have made a conscious choice to i njure an employee and have deliberately acted or failed to act in furtherance of that inte nt. The second sentence then allows the employer’s intent to injure to be inferred if the employer had actual knowledge that an injury was certain to occur, under circumstances indicating deliberate disregard of that knowledge. Id

. at 180; see also Palazzola v Karmazin Products Corp , 223 Mich App 141, 149-150; 565 NW2d 868 (1997).

In this case, defendant argues that “it is not sufficient for a plaintiff to allege that an employer knew a big industrial machine had maintenance issues, and claim that requiring employees to perform maintenance on big industrial machines wil l likely lead to injuries over time.” And here, defendant argues, plaintiff had no evidence t hat a conscious choice was made to injure plaintiff’s decedent and that defendant deliberately acted in furtherance of that intent.

To the contrary, plaintiff argues, defendant subjected its mai ntenance employees to a continuously operative dangerous condition that it knew would c ause injury or death and did nothing to protect its employees from the condition. Specifica lly, defendant “required its maintenance workers to perform belt-adjustments multiple times per shift while the machinery was live, the machinery could not be de-energized by pulling a plug that was ostensibly supposed to de-energize the area, and the machinery could be actuated at any time by another employee in

a remote location.”-5- First, it appears plaintiff is c laiming that the “deliberate a ct,” under MCL 418.131(1), that led to her decedent’s fatal injuries was defendant’s failure to remedy the dangerous condition of exposing its employees like plaintiff’s decedent to energized m achinery associated with the steel recoiling process during the performance of frequent and necess ary maintenance. That is,

defendant neither fixed the belt wrapper nor implemented a comp lete lockout procedure.

Second, it appears that plaintiff is arguing that, while there is no direct evidence that defendant “specifically intende d an injury,” MCL 418.131(1), ci rcumstantial evidence establishes a specific intent to injure. See Travis , 453 Mich at 173. In other words, defendant “had actual knowledge that an injury was certain to occur and w illfully disregarded that knowledge.” Id . at 172, quoting MCL 418.131(1). It appears clear from the de position testimony that defendant’s supervisory employees had “actual kn owledge” that the belt wrapper required frequent manual belt adjustments and not all of the ma chinery associated with the belt wrapper was completely locked-out during this necessary mainten ance. However, the evidence does not establish that defendant’s supervisory employees had a ctual knowledge “that an injury

was certain to occur and willfu lly disregarded that knowledge.” MCL 418.131(1). For an injury

to be “certain to occur” there must be no doubt that it will oc cur; it is not enough that an employer knew an accident was likely. Johnson , 288 Mich App at 697-698 (citation omitted).

In that regard, plaintiff claims that a jury could conclude th at defendant knew an injury

was “certain to occur” because her decedent was forced to confr ont a “continually operative dangerous condition.” That is, plaintiff argues, “every encoun ter with the belt-wrapper inherently carried the potential for an inadvertent and unexpec ted cycling of the machinery.” While it is true that the human error of activating the machine ry during the necessary maintenance posed a risk of injury, we disagree that it was a “ continually operative dangerous condition” that satisfies the certainty requirement necessary t o infer that defendant had a specific intent to injure employees like plaintiff’s decedent. See Travis , 453 Mich at 180. The cases that plaintiff relies on in support of her assertion are distinguish able.

For example, in Golec v Metal Exch Corp , which was the companion case to Travis , 453 Mich at 183, the plaintiff’s em ployer required the plaintiff to continue to load scrap metal into a furnace despite knowing that an explosion had occurred earlier the same night, allegedly because aerosol cans were in the same scrap pile and because the scrap was wet. Id . at 158, 184-186. The plaintiff suffered burn injuries from a second furnace expl osion that occurred later that night, id . at 158-159, and the Court held that a jury could find that a continually operative dangerous condition existed because every load of scrap had the potential to explode. Id . at 186. Similarly, in Johnson , 288 Mich App at 690-691, the pl aintiffs’ jobs involved emptyi ng hot ash

and unburned coals from a boiler which was known to have broken ash gates that caused ash to build up and then spew or explode onto employees, who routinely sustained burns in varying degrees. After noting that the defendant did nothing despite k nowing that the boiler was in disrepair and causing “dangerous ash spews for at least a year” which had resulted in burn injuries, this Court concluded that the jury could find the def endant subjected its employees to a continuously operative dangerous condition. Id . at 700-701. Likewise, in Fries , 285 Mich App at 717-718, this Court concluded that the jury could find the e mployer subjected the plaintiff to a continually operative dangerous condition because an unguarded stamping press was known to cycle on its own when loose clothing interrupted the control bu ttons’ light signal which, because-6- of how the machine operated, was certain to cause injury to an employee wearing a loose

garment.

In contrast to those cases, here , plaintiff failed to present any evidence from which a jury could conclude that the danger pr esented with regard to the fre quent and necessary belt wrapper maintenance constituted a “continuously operative dangerous con dition.” Plaintiff argues that “every encounter with the belt-wr apper inherently carried the p otential for an inadvertent and unexpected cycling of the machinery.” But unlike in the cases of Golec

, Johnson , and Fries

, here, there was no history of i nadvertent activation of the mac hinery, of injury, or of near-misses occurring while a belt was being manually adjusted over the sev eral years that such maintenance had been necessary. And even if the machinery was unexpectedly cycled during the belt adjustment, plaintiff did not show that an injury would always result. As in Travis , 453 Mich at 182, plaintiff simply was not requi red to confront a continuous ly operating dangerous condition.

But even if we held that plaintiff’s decedent was required to confront a “continuously operative dangerous condition,” such condition “may form the ba sis of a claim under the intentional tort exception only if the employer knows the condition will cause an injury and refrains from informing the employee about it.” Alexander v Demmer Corp , 468 Mich 896; 660 NW2d 67 (2003). Plaintiff has not established that defendant k new the alleged condition would cause injury and yet failed to inform plaintiff’s decedent abou t it. And while defendant may have known that the frequent belt adjustments posed a risk of i njury considering that all of the associated machinery was not locked-out or rendered non-operati onal during this maintenance,

such awareness is insufficient to establish that defendant knew that an injury was “certain to occur and willfully disregarded that knowledge.” MCL 418.131(1 ); see also Travis , 453 Mich at 179; Johnson , 288 Mich App at 697-698. Therefo re, plaintiff failed to esta blish that defendant possessed the specific intent to injure her decedent. Accordin gly, we reverse the trial court’s order denying defendant’s motion for summary disposition and re mand for entry of a judgment

in defendant’s favor.

Reversed and remanded for entry of a judgment in defendant’s f avor. We do not retain jurisdiction.

/s/ Michael J. Talbot /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly