MATTHEW ANDERSON V ARISTO CRAFT INC
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STATE OF MICHIGAN
COURT OF APPEALS
MATTHEW ANDERSON,
UNPUBLISHED
November 30, 1999
Plaintiff-Appellant,
v
No. 210532
Macomb Circuit Court
LC No. 95-005786 NP
ARISTO CRAFT, INC.,
Defendant-Appellee,
and
E.W. BLISS COMPANY, individually and as
successor in interest to TOLEDO MACHINE AND
TOOL COMPANY, D&N BENDING CORP.,
SIMON SOLOMON, d/b/a MOTORCITY PRESS
REPAIR and EAGLE PRESS REPAIR, and ASC,
INCORPORATED,
Defendants.
Before: Gribbs, P.J., and Murphy and Griffin, JJ.
PER CURIAM.
Plaintiff appeals as of right from orders granting summary disposition in favor of defendant
Aristo Craft and denying plaintiff’s motion for summary disposition or sanctions. We affirm.
I
Plaintiff lost his hand in an accident that occurred in the course of his employment with
defendant Aristo Craft. At the time of the accident, he was part of a two-man team operating a press
that had palm button controls only for the frontside operator. Plaintiff was working the backside of the
press and had his hand inside the die area when the frontside operator pressed the palm buttons cycling
the press. The press cycled, crushing plaintiff’s hand. Plaintiff filed this action claiming that defendant
Aristo Craft’s failure to install safety devices on the backside of the press constituted an intentional tort
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outside of the exclusive remedy provision of the Worker’s Disability Compensation Act (WDCA),
MCL 418.131(1); MSA 17.237(131)(1).
Aristo Craft filed its motion for summary disposition arguing that plaintiff had not proffered any
evidence that it had acted in a purposeful or wilful manner and that it had no knowledge that an injury
was certain to occur. Plaintiff responded that deposition testimony revealed that an operator was
required to place his hands inside the press to properly run the part. Specifically, other employees
testified that it was necessary to place one’s hands in the press to clear a stuck part or to clean the die
of scrap. One employee testified that most employees would shut off the press before trying to free a
stuck part.
The trial court granted Aristo Craft’s motion, holding that plaintiff had not shown that Aristo
Craft had actual knowledge that an injury was certain to occur. Additionally, the court found that it was
not necessary for an employee to place his hands inside the press; therefore, an injury was not certain to
occur. Because plaintiff failed to demonstrate that Aristo Craft acted intentionally, plaintiff’s claims were
barred by the exclusive remedy provision of the WDCA.
II
We review de novo a trial court's decision to grant a motion for summary disposition.
Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d
748 (1995). Summary disposition may be granted under MCR 2.116(C)(10) when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Foster v ConeBlanchard Machine Co, 460 Mich 696, 701, n 3; 597 NW2d 506 (1999).
Whether the facts alleged by plaintiff are sufficient to constitute an intentional tort is a question of
law for the trial court. Travis v Dreis & Krump Mfg Co, 453 Mich 149, 188; 551 NW2d 132
(1996). Questions of law are subject to de novo review. Cardinal Mooney High School v Michigan
High School Athletic Ass'n, 437 Mich 75,80; 467 NW2d 21 (1991).
The intentional tort exception to the exclusive remedy provision of the WDCA provides as
follows:
(1) The right to the recovery of benefits as provided in this act shall be the
employee's exclusive remedy against the employer for a personal injury or occupational
disease. The only exception to this exclusive remedy is an intentional tort. 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. This subsection shall
not enlarge or reduce rights under law. [MCL 418.131(1); MSA 17.237(131)(1).]
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Construing the first portion of the exception, the Supreme Court in Travis held that “to 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 his employee.” Travis, supra at 172. In regard to the second
sentence of the intentional tort exception, the Travis Court explained:
. . . [T]he second sentence will be employed when there is no direct evidence of intent
to injure, and intent must be proved with circumstantial evidence. It is a substitute
means of proving the intent to injure element of the first sentence. The three phrases in
this sentence that we must construe are: “actual knowledge,” “certain to occur,” and
“willfully disregarded.”
***
Because the Legislature was careful to use the term “actual knowledge,” and
not the less specific word “knowledge,” we determine that the Legislature meant 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.
***
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.
***
Because the purpose of the entire second sentence is to establish the
employer’s intent, we find that the use of the term “willfully” in the second sentence is
intended to underscore that the employer’s act or failure to act must be more than mere
negligence, that is, a failure to act to protect a person who might foreseeably be injured
from an appreciable risk of harm. An employer is deemed to have possessed the
requisite state of mind when it disregards actual knowledge that an injury is certain to
occur. [Id. at 173-179.] [citation omitted.]
In this case, the fact that another worker was injured on the same press does not establish that
an injury was certain to occur. Id. at 174. The prior injury occurred when the brake clutch
malfunctioned while the worker was running a totally different part with different operation procedures.
Likewise, warning of a potential for injury is insufficient. Id. at 177. Plaintiff admitted that he knew the
dangers of sticking his hands in the press, so there was no concealment of the danger. Id. at 178.
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Moreover, although deposition testimony may demonstrate reckless or deliberate indifference
that would constitute gross negligence, such allegations are insufficient to constitute an intentional tort
within the meaning of the WDCA. Gray v Morley, 460 Mich 738, 744-745; 596 NW2d 922 (1999).
Plaintiff has not proffered any evidence that defendant “specifically intended” to injure plaintiff, or that
defendant had “actual knowledge that an injury was certain to occur.” MCL 418.1319(1); MSA
17.237(131)(1); Gray, supra at 744. The deposition testimony relied on by Aristo Craft establishes
that defendant thought the operation was safe, and that the press could be run safely by using tongs or
shutting off the machine before clearing a jam. The issue is not whether, in fact, the press was safe, but
rather, whether defendant “specifically intended” to injure plaintiff or had “actual knowledge that an
injury was certain to occur.” Plaintiff has not offered sufficient proof of either condition.
III
Plaintiff also argues that the trial court erred by denying his motion for summary disposition or, in
the alternative, sanctions based on Aristo Craft’s alleged spoliation of evidence. Approximately
eighteen months after the accident, the die, which belonged to defendant ASC, was scrapped at ASC’s
direction after changes were made to the part. Aristo Craft argued that because plaintiff was injured on
the job, it had no reason t suspect that plaintiff would seek damages outside of the scope of the
o
WDCA. This action was filed approximately one year after the die had been destroyed. Regardless,
plaintiff argued that the trial court should have imposed sanctions by way of limiting or excluding Aristo
Craft’s evidence that the operation did not require plaintiff to put his hands inside the press. Absent that
testimony, plaintiff argued that it was entitled to summary disposition on the issue of liability. The trial
court denied plaintiff’s motion.
A trial court has the authority, derived from its inherent powers, to sanction a party for failing to
preserve evidence that it knows or should know is relevant before litigation has commenced. MASBSEG Property/Casualty Pool v Metalux, 231 Mich App 393, 400; 586 NW2d 549 (1998);
Brenner v Kolk, 226 Mich App 149, 160; 573 NW2d 65 (1997). An exercise of the court's inherent
power may be disturbed only on a finding that there has been a clear abuse of discretion. Id.
Under the circumstances of this case, we conclude that the trial court did not abuse its
discretion. Because plaintiff was injured on the job, the likelihood that plaintiff would seek damages
outside the scope of the WDCA was too remote to impose a duty on Aristo Craft to preserve the die.
Moreover, conclusory statements by an expert are insufficient to allege the certainty of an injury.
Travis, supra at 174. Thus, the fact that plaintiff’s expert did not inspect the die is of no consequence
because his opinion would not indicate whether defendant was aware than an injury was certain to
occur. As a result, the trial court did not err by denying plaintiff’s motion for summary disposition
because there was no basis for imposing the sanction of limiting or excluding defendant’s evidence
regarding the die.
Affirmed.
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/s/ Roman S. Gribbs
/s/ William B. Murphy
/s/ Richard Allen Griffin
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