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Martinez v. L&G;Industrial Products6/4/2002
trial court erred by granting defendants' motion for summary disposition. We agree in regard to plaintiff's claim against Thomas, but disagree in regard to plaintiff's claim against L & G. Plaintiff and Thomas engaged in a physical altercation in the workplace. No evidence established that L & G acted with the specific intent to injure plaintiff, or that L & G had actual knowledge that an injury was certain to occur, and willfully disregarded that knowledge. Travis, supra at 174, 179. Thomas's knowledge cannot automatically be imputed to L & G. McNees, supra at 224. The intentional tort exception applied to plaintiff's claims against L & G. MCL 418.131(1); Travis, supra.
However, the trial court erroneously concluded that because of the intentional tort exception applied to the claims against L & G, suit could not be maintained against Thomas. The intentional tort exception applies to the intentional torts of a co-employee. Travis, supra at 190-191; Graham, supra. The allegations in plaintiff's complaint and affidavit, viewed in a light most favorable to plaintiff, created an issue of fact as to whether Thomas committed the intentional torts of assault and battery. Smith v Stolberg, 231 Mich App 256, 260; 586 NW2d 103 (1998). Therefore, plaintiff was entitled to proceed in circuit court with her claims against Thomas. Travis, supra; Graham, supra.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
E. Thomas Fitzgerald
Donald E. Holbrook, Jr.
Martin M. Doctoroff
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