ESTATE OF JAMES ISOM V COMERICA BANK
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STATE OF MICHIGAN
COURT OF APPEALS
IRIS DIAZ, Personal Representative of the
ESTATE OF JAMES ISOM, a/k/a JAMES ISOM
DIAZ, Deceased,
UNPUBLISHED
February 1, 2002
Plaintiff-Appellant,
v
COMERICA BANK and GUARDSMARK, INC.,
No. 221601
Wayne Circuit Court
LC No. 97-720818-CZ
Defendants-Appellees,
and
VIRENE BROWN,
Defendant.
Before: White, P.J., and Whitbeck, C.J., and Holbrook, Jr., J.
PER CURIAM.
The decedent, James Isom, while employed by defendant Comerica Bank at one of its
branches in Detroit, was shot to death by a gunman who entered the bank. Defendant
Guardsmark, Inc., provided security for defendant bank and defendant Virene Brown was the
security guard assigned to the branch.1 Plaintiff commenced this action, alleging an intentional
tort against defendant Comerica in order to avoid the exclusive remedy provision of the Worker's
Disability Compensation Act ("WDCA"), MCL 418.131(1). The circuit court granted
defendant’s motion for summary disposition under MCR 2.116(C)(10). Plaintiff appeals as of
right, and we affirm.
The decedent was shot by a gunman, Allen Griffin, Jr., when Griffin entered defendant's
branch with a shotgun. Stanley Pijanowski, defendant's branch manager, was also killed during
the armed assault. After the incident, information was discovered indicating that the shooting
may have been related to a "sex for cash" relationship between Griffin and Pijanowski. It was
1
Guardsmark and Brown are not involved in this appeal. Brown was dismissed and Guardsmark
resolved the matter with plaintiff.
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plaintiff ’s theory that Griffin entered the bank to shoot Pijanowski as a result of that relationship
and that Pijanowski, a supervisory or managerial employee of defendant, had actual knowledge
of the risk of danger posed by Griffin such that defendant was liable for an intentional tort under
MCL 418.131(1). We disagree.
We review a trial court’s decision on a motion for summary disposition de novo. Baker v
Arbor Drugs, Inc, 215 Mich App 198, 202; 544 NW2d 727 (1996). A motion under MCR
2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings,
affidavits, depositions, admissions, and other documentary evidence. MCR 2.116(G)(5).
Summary disposition should be granted if, except as to the amount of damages, there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995).
In Palazzola v Karmazin Products Corp, 223 Mich App 141, 148-150; 565 NW2d 868
(1997), this Court, interpreting Travis v Dreis & Krump Mfg Co, 453 Mich 149; 551 NW2d 132
(1996), held that a plaintiff must establish the following elements in order to prove an intentional
tort under MCL 418.131(1):
(1) "Deliberate act"--This includes both acts and omissions and
encompasses situations in which the employer "consciously fails to act."
(2) "Specifically intended an injury"--An employer must have had a
conscious purpose to bring about specific consequences. When an employer is a
corporation, a particular employee must possess the requisite state of mind in
order to prove an intentional tort. (Recognizing [sic] that direct evidence of intent
is often unavailable, the Travis Court explained that the second sentence of the
exception provides an alternative means of proving an employer's intent to injure.
Id. at 172-173. Plaintiff here relies upon this alternative to establish the
employer's intent. To paraphrase the Travis Court at 173-174, 176, 178-179, a
plaintiff alternatively can prove intent to injure by establishing the following
elements:
(1) "Actual Knowledge"--This element of proof precludes liability based
upon implied, imputed, or constructive knowledge. Actual knowledge for a
corporate employer can be established by showing that a supervisory or
managerial employee had "actual knowledge that an injury would follow from
what the employer deliberately did or did not do."
(2) "Injury certain to occur"--This element establishes an "extremely high
standard" of proof that cannot be met by reliance on the laws of probability, the
mere prior occurrence of a similar event, or conclusory statements of experts.
Further, an employer's awareness that a dangerous condition exists is not enough.
Instead, an employer must be aware that injury is certain to result from what the
actor does.
(3) "Willfully disregard"--This element requires proof that an employer's
act or failure to act must be more than mere negligence, e.g., failing to protect
someone from a foreseeable harm. Instead, an employer must, in fact, disregard
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actual knowledge that an injury is certain to occur. [Footnote omitted; emphasis
in original.]
The level of proof required to show that an injury is certain to occur must be that there is
"no doubt . . . with regard to whether it will occur." Bazinau v Mackinac Island Carriage Tours,
233 Mich App 743, 752; 593 NW2d 219 (1999), quoting Travis, supra at 174. Even gross
negligence is insufficient to constitute an intentional tort. Gray v Morley (After Remand), 460
Mich 738, 744; 596 NW2d 922 (1999).
While defendant argues that not all of the evidence submitted by plaintiff would be
admissible at trial, we are satisfied that, even if the proposed evidence were admissible, it falls
short of establishing an intentional tort.
Plaintiff submitted evidence showing that Pijanowski and Griffin were involved in a "sex
for cash" relationship that Pijanowski wanted to end after Griffin began to cause problems.
There was also evidence that Griffin had threatened Pijanowski. However, the substance of the
threats was never explained, although Pijanowski did apparently fear for his safety. Despite this
evidence, it was not enough to show that Pijanowski had actual knowledge that Griffin would
shoot bank employees at the workplace. At best, the evidence showed that Pijanowski was
aware of a dangerous condition in relation to Griffin. Knowledge of a general risk of danger is
insufficient to establish an intentional tort. Palazzola, supra at 154. Under Travis, supra, this is
not enough to show that defendant specifically intended an injury. Palazzola, supra at 148-150.
Additionally, that defendant did not have bulletproof glass in the bank to protect
plaintiff ’s decedent and other employees, including Pijanowski, is also insufficient to show that
defendant was aware, through Pijanowski, that a dangerous condition existed and that injury was
certain to result because of Griffin's threats. From the evidence produced, it is not reasonable to
conclude that Pijanowski must have anticipated that Griffin would walk into the bank and go on
a shooting rampage. At the point when Pijanowski presumably saw Griffin enter the branch with
a shotgun, there was not enough time for Pijanowski to react. Accordingly, defendant did not
willfully disregard actual knowledge that injury was certain to occur when it was not foreseeable
that Griffin would react in the way that he did. The same is true for plaintiff ’s theory that injury
was certain to occur because the branch did not have a remote control for the main door or other
security devices, such as a "man trap."
Further, the fact that this branch may have been in a high-crime area or was robbed in the
past is not relevant to establishing the danger posed in this case. Griffin, according to plaintiff ’s
theory, did not enter the bank to rob it, but to exact revenge against Pijanowski for ending their
relationship. The fact that the bank had been robbed in the past, or was in a high-crime area, was
not relevant to establishing the danger posed by Griffin.
Plaintiff ’s theory relative to Pijanowski is dependent upon evidence that Pijanowski
knew that Griffin would carry out his threat by staging a shooting rampage at the bank branch
where Pijanowski worked. Plaintiff’s evidence failed to factually support this theory, but
showed only that Griffin was dangerous and had made general or vague threats. Because
plaintiff failed to show that Pijanowski had actual knowledge that Griffin would show up at his
place of employment and act in the manner that he did, plaintiff cannot establish an intentional
tort based on Pijanowski's knowledge.
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Plaintiff also argues that the security guard assigned to defendant's branch, Brown, had
actual knowledge that Griffin was certain to cause injury and failed to properly respond in the
face of that knowledge. It is questionable whether Brown can be considered a supervisory or
managerial employee. Regardless, plaintiff failed to show that Brown had actual knowledge that
Griffin was certain to cause injury when he entered the bank. When Griffin entered, the
customers thought that he was there to rob the bank. While this involved a risk of danger to
defendant's employees, the evidence offered did not show that it was apparent to Brown, or
others, that injury was certain to occur. Brown's failure to lock the front door to keep Griffin out,
or failure to follow other security procedures, while perhaps amounting to negligence on her part,
did not rise to the level of an intentional tort.
Finally, plaintiff argues that the circuit court should have granted her motion for
reconsideration based upon newly discovered evidence, MCR 2.119(F)(3). We review a trial
court's decision on a motion for reconsideration under MCR 2.119(F)(3) for an abuse of
discretion. In re Beglinger Trust, 221 Mich App 273, 279; 561 NW2d 130 (1997). The
information contained in Wayne Bullen's affidavit concerning Griffin's background and prior
criminal record was available to plaintiff before the circuit court made its original ruling. A
motion for reconsideration is properly denied where evidence offered in support of the motion
could have been produced at the time the court made its original decision. Churchman v
Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000).
The other two affidavits offered by plaintiff, even if constituting newly discovered
evidence, do not provide support for plaintiff ’s theory because they do not show that Pijanowski,
or any of defendant's other managerial employees, were aware of the extent of Griffin's hate or
violent tendencies. The proffered evidence does not support plaintiff ’s theory that Pijanowski
had actual knowledge of the extent of the threat posed by Griffin.
Affirmed.
/s/ Helene N. White
/s/ William C. Whitbeck
/s/ Donald E. Holbrook, Jr.
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