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Beck v. Batts9/11/2003
Id ., 174, 179. In order to show an injury was certain to occur, a plaintiff must establish that the employer subjected him to a continuously operative dangerous condition it knew would cause an injury. The evidence must show the employer refrained from warning the plaintiff about the dangerous condition. Id ., 178. Actual knowledge is required. Constructive, implied, or imputed knowledge is insufficient. McNees v Cedar Springs Stamping Co (After Remand) , 219 Mich App 217, 224; 555 NW2d 481 (1996).
An employer's knowledge of general risks is insufficient. Agee v Ford Motor Co , 208 Mich App 363, 366-367; 528 NW2d 768 (1995). Whether the facts alleged by the plaintiff are sufficient to constitute an intentional tort is a question of law for the trial court. Whether the facts are as the plaintiff alleges is a question for the jury. Gray v Morley , 460 Mich 738, 742-743; 596 NW2d 922 (1999).
Plaintiffs argue that the trial court erred by granting defendant's motion for summary disposition. We disagree and affirm the trial court's decision. Plaintiffs do not contend that defendant purposefully acted with the intent to injure Kathryn Beck by crushing her hand. In addition, they do not contend that defendant had actual knowledge that Kathryn Beck's hand would become caught in the press, and willfully disregarded that knowledge. Rather, plaintiffs maintain that, after Kathryn Beck's hand became caught in the hot press, defendant had actual knowledge a burn injury was certain to occur and willfully disregarded that knowledge. The evidence showed that after Kathryn Beck's hand became caught in the press defendant's employees were concerned with freeing her hand without causing further injury. Defendant's employees decided against starting the machine to attempt to move the mold or to connect and operate a chilling device to avoid the possibility that the mold would close completely and further crush Kathryn Beck's hand. Defendant's failure to have a hydraulic jack on hand which might have been able to pry open the press did not constitute willful disregard of actual knowledge that a burn injury was certain to occur. No evidence showed such a device had ever been needed for that purpose. The laws of probability do not constitute actual knowledge that an injury is certain to occur. Palazzola v Karmazin Products Corp , 223 Mich App 141, 149; 565 NW2d 868 (1997). The evidence showed that after Kathryn Beck's hand became trapped defendant acted to free her hand as quickly as possible while at the same time attempting to avoid further injury to her. Plaintiffs did not put forth evidence to show that a genuine issue of fact existed as to whether defendant had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. The trial court did not err in concluding that the facts alleged by plaintiffs did not constitute an intentional tort. Gray , supra . Defendant was properly granted summary disposition.
Affirmed.
Jane E. Markey
Mark J. Cavanagh
Henry William Saad
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