Benson v. Callahan Mining Corp.

Sawyer, J.

(concurring). Although the majority and I agree on the resolution of this case and, I believe, the fundamental reasoning and analysis to reach that resolution, I write separately because we do not agree on our view of one of the prior cases in this area, Adams v Shepherd Products, US, Inc, 187 Mich App 695; 468 NW2d 332 (1991). I was a member of the panel that decided Adams and continue to believe it was correctly decided. Furthermore, because we distinguish this case from Adams, Administrative Order No. 1990-6, 436 Mich lxxxiv, Mich Ct R, p A 1-45, is inapplicable.

A claim of unsafe working conditions does not satisfy the intentional-tort requirement to avoid the exclusive remedy of workers’ compensation because such an allegation merely claims negli*448gence by the employer. See Tolbert v US Truck Co, 179 Mich App 471, 474-475; 446 NW2d 484 (1989). In Tolbert, this Court rejected a claim of intentional tort where the decedent was fatally injured when his vehicle slipped between a stationary trailer and a loading dock and the trailer’s movement was caused by an allegedly defective brake system. The Court concluded that these facts established unsafe working conditions rather than an intentional tort. Id.

Similarly, this Court rejected an intentional-tort argument in Pawlak v Redox Corp, 182 Mich App 758; 453 NW2d 304 (1990), where the decedent was killed when he fell from the top of the cab of a truck owned by the defendant while the truck was being driven by a coworker. The plaintiff argued that the defendant was aware that trucks were recklessly driven and that employees would ride on the cabs of the trucks, but did nothing. This Court concluded that the plaintiff had not established any deliberate act by the employer or that the employer had actual knowledge that injuries were certain to occur. Id. at 768. An intentional-tort claim was also rejected by this Court in Bowden v McAndrew, 173 Mich App 591; 434 NW2d 195 (1988) (bank teller injured during a bank robbery unsuccessfully argued that an intentional tort was established by the bank’s failure to provide adequate security system and training of tellers), Martin v Raker, 173 Mich App 23; 433 NW2d 377 (1988) (employee injured when he fell from a plank between moving trailers because of the jerking of the trailers), and Boyer v Louisville Ladder Co, Inc, 157 Mich App 716; 403 NW2d 210 (1987) (employee injured when a safety cable snapped claimed that an adequate safety cable could have been provided).

The Court did find the intentional-tort exception *449applicable, however, in McNees v Cedar Springs Stamping Co, 184 Mich App 101; 457 NW2d 68 (1990). In McNees, the plaintiff was injured while working at a press machine that allegedly had a malfunctioning foot pedal. The plaintiff contended that the defendant had been warned that the foot pedal was malfunctioning and that the defendant had actual knowledge that an injury was certain to occur. Despite this knowledge, according to the plaintiff, the defendant nevertheless required the plaintiff to work at the press, which necessitated use of the allegedly defective foot pedal. After the accident, the defendant allegedly destroyed all the foot pedals in the shop. Id. at 103-104. This Court concluded that the intentional-tort exception requires that the plaintiff be able to allege a specific danger known to the employer that is certain to result in an injury and that the employer required the plaintiff to work in the face of such danger. Id. at 105.

The McNees Court was satisfied that the plaintiff had alleged an intentional tort, pointing to the allegations that the defendant had knowledge of the defect in the machine that caused the accident, the defect was not obvious to the employee, a request had been made to the employer to correct the danger, there was an intentional refusal to make corrections, there was a history of consistent violations of the Occupational Safety and Health Act, there were several previous incidents that came close to injuring other employees as a result of the defect in question, there were orders to work on the machine with the defective foot pedal, and there was an intentional destruction of damaging evidence after the accident. Id. at 105-106. The Court concluded that these allegations, if proved, would show that the employee was forced to work in the face of a known and certain danger *450with respect to the specific machine that caused the accident and, therefore, the intentional-tort exception to the exclusive-remedy provision applied. Id. at 106.

This Court also concluded that the intentional-tort exception to the exclusive-remedy provision was applicable in the recent case of Adams, supra. In Adams, the plaintiff lost three fingers of her right hand while operating a circular saw at her place of employment. The saw in question was a table saw built by the defendant’s maintenance department for the purpose of shaving casters to accommodate the customers’ specifications. The machine utilized a circular saw, which was affixed upside down to a plywood table top, the safety guards had been removed from the circular saw and the "on/off” switch was taped to the "on” position. It was also alleged that the defendant had failed to supply adequate instructions with regard to the use of the saw. Furthermore, the saw was designed in such a manner that the casters, after passing through the saw, would fall through a slot into a catch basket under the table. The worker was required to check the casters in the basket every thirty minutes, which required the worker to reach underneath the table of the saw and be exposed to the unguarded blade. Id. at 697-698. One of the maintenance men who had designed the machine had previously reached under the machine for a caster and avoided injury only because his hand struck the side of the blade. The maintenance supervisor testified by deposition that the employees could check the casters only by reaching under the table where the unguarded saw blade was turning and stated affirmatively that when a safety guard is removed someone will be hurt. Id. at 698.

The distinctions between the cases that have *451found an intentional tort and those that have found no intentional tort are admittedly subtle. However, the focus of the cases does center on the knowledge of the employer and the degree of certainty of the occurrence of an injury. In Mc-Nees, the employer had knowledge of the defect in the machine, there had been several incidents in which employees came close to injury, and there was a conscious refusal by the employer to correct the defects. In Adams, the injury occurred on a jury-rigged device designed and assembled by the defendant’s employees, and even the maintenance supervisor acknowledged the inherent unsafe design of the machine in light of the task for which it was designed, including the recognition that an injury was certain to follow.

At some point, the conduct of the employer passes from a circumstance in which the employer has merely provided an unsafe working condition in which injury is possible, or even likely, to occur to the point where an injury is certain to occur and the employer has knowledge of that certainty. In the case at bar, the employer certainly could have taken steps to provide a safer working environment and may have been able to minimize or avoid the risk of injury to plaintiff. However, there is no indication that the method used by the employer, while perhaps not the safest method for securing the rockbolts, was an unaccepted practice in the mining trade because of the certainty of injury to employees. That is, while there may well be safer methods to utilize than that which defendant required plaintiff to use to perform his job, it does not follow that the method employed by defendant was certain to cause injury. Cf. Phillips v Ludvanwall, Inc, 190 Mich App 136; 475 NW2d 423 (1991) (although the employer was negligent and acted in reckless disregard for the safety of *452employees, that does not establish knowledge that injury is certain to occur). Evaluating the circumstances as a whole, this case does not present a circumstance that has passed the threshold between providing unsafe working conditions and requiring an employee to work under conditions in which an injury is certain to follow. Accordingly, the intentional-tort exception to the exclusive-remedy provision of the Workers’ Disability Compensation Act is inapplicable in the case at bar, and the trial court erred in denying defendant’s motion for summary disposition.