PATRICIA GILES V AMERITECH
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STATE OF MICHIGAN
COURT OF APPEALS
PATRICIA GILES,
UNPUBLISHED
June 21, 2002
Plaintiff-Appellee,
v
AMERITECH, a Joint Venture Between
MICHIGAN BELL TELEPHONE COMPANY, a
Michigan Corporation, AMERITECH
PUBLISHING, INC., a Delaware Corporation,
AMERITECH MOBILE COMMUNICATIONS,
INC., a Delaware Corporation, AMERITECH
NEW MEDIA, INC., a Delaware Corporation, and
AMERITECH CORPORATION, INC., a
Delaware Corporation, and CURT SIMMONS,
No. 231672
Wayne Circuit Court
LC No. 00-025490-NO
Defendants-Appellants,
and
R. BARNES AND COMPANY, INC.,
Defendant.
Before: Holbrook, Jr., P.J., and Gage and Meter, JJ.
PER CURIAM.
In this interlocutory appeal, defendants-appellants (“defendants”) appeal by leave granted
from an order denying in part their motion for summary disposition. We affirm.
Plaintiff, an Ameritech employee, filed a complaint alleging that she suffered an injury in
October 1998 while splicing a telephone line in an excavation in Clarkston, Michigan. A natural
gas service line was present in the excavation, and while plaintiff was using a propane torch to
seal her splice, an explosion and fire occurred. Plaintiff suffered burns. As well as suing
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Ameritech, plaintiff sued Curt Simmons, her supervisor, and R. Barnes and Company, the
company that dug the excavation.1
Defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (C)(10),
alleging that plaintiff’s claims were barred by the exclusive remedy provision of the Worker’s
Disability Compensation Act (WDCA), MCL 418.131(1), because she did not allege and could
not establish the existence of an intentional tort.
The summary disposition hearing occurred before the completion of discovery and before
plaintiff was able to take the depositions she desired to take. The trial court granted defendants’
motion with respect to “any claim not based on the intentional tort exception set forth in the
[WDCA].” It denied without prejudice defendants’ motion with respect to the remaining claims,
stating with regard to MCR 2.116(C)(8):2
the Court finds for this motion that sufficient allegations do exist that defendants
intended to injure plaintiff, specifically those cited in the paragraphs [of the
complaint] that I cited during oral argument. The Court finds those as a basis for
intentional tort.
With regard to MCR 2.116(C)(10), the court stated:
While . . . the plaintiff [must] rebut Ameritech’s evidence with actual admissible
proof of specific facts showing a genuine issue of material facts exists, . . . the
Court observes that any deficiency in plaintiff’s response is due to the lack of
discovery.
***
this Court finds it is generally considered premature to grant a motion for
summary disposition before discovery on a disputed issue is completed.
***
Once discovery closes, Ameritech may refile this motion if it finds it necessary to
do so.
Defendants filed an application for interlocutory appeal, and this Court granted the
application. The trial court subsequently stayed the proceedings below pending the outcome of
this appeal.
Defendants contend that the trial court erroneously denied them a complete grant of
summary disposition because plaintiff did not establish a genuine issue of material fact regarding
1
Barnes did not move for summary disposition and is not a party to this appeal; it remains a
defendant in the trial court.
2
We note that defendants do not appeal the court’s ruling with regard to MCR 2.116(C)(8).
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the existence of an intentional tort and did not counter defendants’ evidence in support of
summary disposition with any relevant affidavits or evidence of her own.
We review de novo a trial court’s decision with respect to a motion for summary
disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Here,
defendants appeal that portion of the trial court’s ruling dealing with MCR 2.116(C)(10). A
motion under MCR 2.116(C)(10) tests the factual support for a claim. 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).
Because of the exclusive remedy provision of the WDCA, MCL 418.131(1), plaintiff
cannot recover against defendants unless the alleged wrongful conduct constituted an intentional
tort. Subsection 131(1) defines an intentional tort as follows:
An intentional tort shall exist only when an employee is injured as a result of a
deliberate act of the employer and the employer specifically intended an injury.
An employer shall be deemed to have intended to injure if the employer had
actual knowledge that an injury was certain to occur and willfully disregarded that
knowledge. The issue of whether an act was an intentional tort shall be a question
of law for the court.
In Travis v Dreis & Krump Mfg Co, 453 Mich 149, 180 (Boyle, J.), 191 (Riley, J.); 551
NW2d 132 (1996), the Supreme Court noted that it was evident from the above quoted statutory
language
that an employer must have made a conscious choice to injure an employee and
have deliberately acted or failed to act in furtherance of that intent. 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. [footnote omitted.]
In construing the phrase “actual knowledge,” the Court stated that
constructive, implied, or imputed knowledge is not enough. Nor is it sufficient to
allege that the employer should have known, or had reason to believe, that injury
was certain to occur. A plaintiff may establish a corporate employer’s actual
knowledge 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. [Id. at 173-174 (Boyle, J.), 191 (Riley, J.); citations omitted.]
Thus, the exception encompasses those cases in which an employer acts with a specific
and deliberate purpose to injure an employee or cases in which the employer had actual
knowledge that injury was certain to occur. Bazinau v Mackinac Island Carriage Tours, 233
Mich App 743, 754-756; 593 NW2d 219 (1999); Palazzola v Karmazin Products Corp, 223
Mich App 141, 148-150; 565 NW2d 868 (1997).
In Travis, the Court stated:
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When an employer subjects an employee to a continuously operative dangerous
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. [Travis, supra at 178 (Boyle, J.), 191 (Riley,
J.).]
At this point in the proceedings, it is not clear that plaintiff has established a genuine
issue of material fact with regard to the above standards. Were discovery complete, summary
disposition for defendants certainly might have been warranted. The pertinent question,
however, is whether summary disposition was appropriate even though discovery was
incomplete. “Generally, a motion for summary disposition under MCR 2.116(C)(10) is
premature when discovery on a disputed issue has not been completed.” Colista v Thomas, 241
Mich App 529, 537; 616 NW2d 254 (2000). “However, summary disposition before the close of
discovery is appropriate if there is no reasonable chance that further discovery will result in
factual support for the nonmoving party.” Colista, supra at 537-538. Moreover, “[i]f a party
opposes a motion for summary disposition on the ground that discovery is incomplete, the party
must at least assert that a dispute does indeed exist and support that allegation by some
independent evidence.” Bellows v Delaware McDonald’s Corporation, 206 Mich App 555, 561;
522 NW2d 707 (1994); Pauley v Hall, 124 Mich App 255, 263; 335 NW2d 197 (1983).
As noted in Pauley, supra at 263:
If the party opposing a motion for summary judgment cannot present competent
evidence of a disputed fact because his or her discovery is incomplete, the party
must at least assert that such a dispute does indeed exist and support the allegation
by some independent evidence, even if hearsay. An unsupported allegation which
amounts solely to conjecture does not entitle a party to an extension of time for
discovery, since under such circumstances discovery is nothing more than a
fishing expedition to discover if any disputed material fact exists between the
parties. Here, Pauley alleged only that the Halls may have known about his
leasehold interest and that he needed time to depose the parties to find out if
anyone had told the Halls about the lease. This amounts to an insufficient
showing of a disputed fact, and the court did not err in refusing Pauley’s request
for additional time for discovery. [Emphasis in original.]
Here, plaintiff alleged in her complaint that defendants “disregarded actual knowledge
that an injury was certain to occur.” She then filed a brief in response to defendants’ summary
disposition motion, arguing that a grant of summary disposition before the completion of
discovery would be premature. She stated, “[p]laintiff has properly pled, and intends to further
establish in the course of discovery, that Defendants disregarded actual knowledge that an injury
was certain to occur. . . .” She attached to her brief MIOSHA3 citations indicating that with
respect to the accident, Ameritech violated a policy recommending against the use of a torch in
3
This acronym refers to the Michigan Occupational Safety and Health Act, MCL 408.1001 et
seq.
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an excavation containing a natural gas line. The citations also noted that (1) management failed
to identify a hazardous condition, (2) plaintiff was not wearing the proper clothing, (3) the
excavation had a dangerous boulder along the edge, and (4) no fire extinguisher was present at
the work site. Plaintiff also attached to her brief a letter from an accident investigator in which
the investigator stated that the accident was “foreseeable and preventable.” He noted that
“[t]here are numerous OSHA and MIOSHA standards and regulations [that] would have
prevented the accident or significantly protected [plaintiff] from . . . sever[e] injuries.”
We conclude that this evidence4 satisfied the Pauley burden of “some independent
evidence” supporting plaintiff’s claim such that the trial court properly denied summary
disposition at this point in the proceedings. See Pauley, supra at 263. Indeed, this evidence
amounted to more than just conjecture. By submitting the citations and the accident
investigator’s report,5 plaintiff offered evidence suggesting that defendants subjected plaintiff to
a dangerous condition, potentially knowing that it would cause injury but failing to inform her
about the danger. See Travis, supra at 178 (Boyle, J.), 191 (Riley, J.). In light of plaintiff’s
evidence, we conclude that there is a reasonable chance that “further discovery will result in
factual support for the nonmoving party.” Colista, supra at 537-538. Accordingly, the trial
court properly denied in part defendants’ motion for summary disposition.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Hilda R. Gage
/s/ Patrick M. Meter
4
We agree with plaintiff that she was not required to counter defendant’s motion solely with
affidavits; other types of documentary evidence sufficed. See MCR 2.116(G)(2) and (4).
Defendants appear to concede this point in their reply brief on appeal.
5
We acknowledge that evidence of MIOSHA citations and conclusory statements by experts are
generally insufficient to create a genuine issue of material fact warranting a trial. See Palazzola,
supra at 151-152. However, the relevant question for us is not whether plaintiff’s evidence
established a genuine issue of material fact warranting trial but rather whether it satisfied the
Pauley standard for allowing discovery to proceed. We conclude that it did.
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