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Zilliox v. Woodside Builders3/13/2003
had the requisite knowledge of a specific danger. Travis v Dreis & Krump Mfg Co, 453 Mich 149, 173-174; 551 NW2d 132 (1996); McNees v Cedar Springs Stamping Co (After Remand), 219 Mich App 217, 221; 555 NW2d 481 (1996). Here, the evidence showed that the foreman was the same foreman on the job when defendant received the previous citation. However, plaintiffs have not shown that the foreman was made aware of the previous citation or the reason for its issuance. Thus, plaintiffs have not shown that a particular supervisory employee had actual knowledge of a specific hazard.
Even if the foreman had been aware of the previous citation, the evidence does not show that he knew that injury was certain to occur. There is no evidence that the previous violation resulted in collapse of the trench or injury to any person. While the previous citation gave reason to believe that defendant's trenching methods may have presented a risk of harm, knowledge of a general risk is not the equivalent of certainty of injury. Travis, supra at 174; Agee v Ford Motor Co, 208 Mich App 363, 367-368; 528 NW2d 768 (1995). Although plaintiffs' expert opined that defendant had actual knowledge that an injury was certain to occur, "conclusory statements by experts are insufficient to allege the certainty of injury contemplated by the Legislature." Travis, supra. The trial court did not err in granting defendant's motion.
Affirmed.
Kirsten Frank Kelly
Joel P. Hoekstra
WHITE, J. (concurring).
I agree that on this record plaintiff did not establish that an injury was certain to occur.
Helene N. White
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