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Alexander v. Demmer Corporation8/20/2002
failed or refused to enforce its written operating procedure DDOP-9.3 entitled "Press Line Pinch and Feeder Roll Cleaning," when its employees were engaged in cleaning the pinch rollers on the R1062 McKay Roller and Leveler machine.
29. That Defendant Demmer willfully condoned the unsafe and extremely dangerous practice of its employees wiping of the pinch rollers with cloth in hand with the power on and the rollers running inward to the pinch point.
Plaintiff alleged that on the date she was injured, January 6, 1998, defendant "had actual knowledge that it had not developed, documented or utilized procedures for the control of potentially hazardous energy when its employees were engaged in cleaning the rollers where unexpected start-up of the rollers could cause serious physical injury ," "had actual knowledge that [plaintiff] had not been trained or instructed on the proper procedures for cleaning the rollers or the dangers associated therewith," and further:
That given Defendant Demmer's claimed expertise as a metal fabricator, its knowledge of the danger of in-running pinch points, its knowledge that many newly assigned employees had been seriously injured while hand cleaning those rollers, the repeated citations and warnings provided by MIOSHA, its failure to develop, document and enforce safe procedures to protect its employees, its actual knowledge of the extremely dangerous practices of its employees, and its failure to adequately train Plaintiff Kay Alexander, Defendant Demmer is deemed to have intended to injure Kay Alexander when it assigned her to help clean the rollers on January 6, 1998, her second day on the job .
That Defendant Demmer deliberately failed and refused to inform Plaintiff Kay Alexander about the dangerous conditions and history of the rollers so that she could take the steps necessary to keep from being injured, when the employer had actual knowledge that absent proper training, injury was certain to occur.
Plaintiff alleged that on her second day on the job , she was assigned to clean the R-1062 rollers, that when she began to do so, the safety gate was open and the rollers were stopped, that after she began cleaning the rollers her supervising fellow employee stepped out of the roller area, and less than five minutes later, the rag she was using in her right hand was suddenly caught and drawn into the pinch rollers when the rollers, without warning, suddenly started up, taking plaintiff's right hand along, crushing her hand, wrist and arm between the rollers, that the sudden start-up took plaintiff by surprise and she instinctively reached with her left hand to free her right hand, causing her left hand, wrist and arm also to be crushed between the rollers, and that as a result both of her hands and lower arms had to be amputated.
There is no dispute that following plaintiff's injury , MIOSHA investigated the circumstances and issued a "Willful Serious" citation to defendant for failing to develop, document and utilize Lockout/Tagout procedures. See n 15, infra.
II.
This Court reviews summary disposition determinations de novo. Perkoviq v Delcor Homes-Lake Shore Pointe, Ltd, 466 Mich 11, 15; 643 NW2d 212 (2002). MCL 418.131(1) of the WDCA "provides that employee compensation is the exclusive remedy for a personal injury , except for an injury resulting from an intentional tort." Bock v GMC, 247 Mich App 705, 710; 637 NW2d 825 (2001).
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 actu
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