 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Alexander v. Demmer Corporation8/20/2002
al knowledge that an injury was certain to occur and willfully disregarded that knowledge. . . . . [MCL 418.131(1).]
Whether the facts alleged by the plaintiff are sufficient to constitute an intentional tort is a question of law for the court; whether the facts are as the plaintiff alleges is a jury question. Gray v Morley (After Remand), 460 Mich 738, 743; 596 NW2d 922 (1999), citing Travis v Dreis & Krump Mfg Co, 453 Mich 149, 188; 551 NW2d 132 (1996).
A plaintiff claiming an intentional tort must establish a "deliberate act," and that the employer "specifically intended an injury ." Palazzola v Karmazin Product Corp, 223 Mich App 141, 148-149; 565 NW2d 868 (1997). Employer omissions, "such as a failure to remedy a dangerous condition. . . may constitute the 'act' necessary to establish an intentional tort." Travis, supra at 169. To establish that the employer specifically intended an injury, the employer "must have had a conscious purpose to bring about specific consequences." Id.
"Recognizing that direct evidence of intent is often unavailable, the Travis Court explained that the second sentence of the exception provides an alternative means of proving an employer's intent to injure:" a plaintiff can prove intent to injure by establishing "actual knowledge," that an injury is "certain to occur," and that the employer "willfully disregarded" that knowledge. Palazzola, supra at 149-150; Travis, supra at 179. Implied, imputed or constructive knowledge is insufficient to show actual knowledge. McNees v Cedar Springs Stamping Co (After Remand), 219 Mich App 217, 224; 555 NW2d 481 (1996). The element of "injury certain to occur" is not met "by reliance on the laws of probability, the mere prior occurrence of a similar event, or conclusory statements of experts. Further, an employer's awareness that a dangerous condition exists is not enough." Palazzola, supra at 149-150.
"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, discussing 2A Larson, Workmen's Compensation, ยง 68.15(e), pp 13-105 to 13-106.
The parties agree that Travis, supra, and its companion case, Golec v Metal Exchange Corp, control. The plaintiff in Golec worked for an aluminum smelting factory and on the evening in question was loading a furnace with scrap metal. Around 11:00 p.m., the plaintiff was splashed with molten aluminum and suffered slight burns to his left hand after a minor explosion occurred in the furnace he was loading. The plaintiff reported the explosion to his shift leader, Mazur, and told Mazur he believed the explosion was caused either by the presence of closed aerosol cans in the scrap pile or by the scrap pile being wet. 453 Mich at 157-158. Mazur testified that he telephoned his supervisor, Rziemkowski, at home, and told him plaintiff had been injured by a small explosion and that the scrap was damp because rain from a leak in the roof was dripping on it. Mazur testified that Rziemkowski told him that the plaintiff had to return to work. The plaintiff returned to work and at around 3:00 a.m., a huge explosion from the furnace covered him with molten aluminum and burned over thirty percent of his body. The furnace operators normally used a tractor equipped with a splash guard, but that vehicle was out of service, and the plaintiff was using a tractor with no guard. The plaintiff alleged that he was provided no protective clothing other than a helmet an
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Michigan Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|