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Woodson v. Rowland8/14/1991
ubstantial certainty of a cave-in resulting in serious injury or death. Rowland's attempts to rush Greene the previous day and his commencement of hasty, unsafe procedures, including his failure to use the available trench box, would offer the jury a motive for his conduct-swift completion of the project, whatever the risk.
Morris Rowland's knowledge and prior disregard of dangers associated with trenching; his presence at the site and opportunity to observe the hazards; his direction to proceed without the required safety procedures; Craig's experienced opinion that the trench was unsafe; and Rees' scientific soil analysis converge to make plaintiff's evidentiary forecast sufficient to survive Rowland Utility's motion for summary judgment.
We reject Rowland Utility's reasons for concluding to the contrary. Rowland Utility contends that no reasonable business person would knowingly engage in conduct that is substantially certain to cause a trench cave-in because of the significant delay in work and additional cost that such an event would cause. This argument is more properly directed toward the jury at trial rather than to the Court on summary judgment.
At least one court has indicated that a trench cave-in may satisfy the substantial certainty standard. In Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882, the Michigan Supreme Court discussed the trench cave-in case of Serna v. Statewide Contractors, 6 Ariz. App. 12, 429 P.2d 504 (1967). The Beauchamp Court indicated that the failure to observe trenching safety procedures and the resulting cave-in discussed in Serna would likely have presented a valid claim had the Serna court applied the substantial certainty standard. Beauchamp, 427 Mich. at 23, 398 N.W.2d at 892.
Rowland Utility also argues that its placing Alan Fry, son of project supervisor Elmer Fry, into the trench with the acquiescence
of Elmer Fry is inconsistent with Rowland Utility's knowledge that a cave-in was a substantial certainty. The argument is that Elmer Fry would never have agreed to put his son in the trench had he appreciated the danger and that since Elmer Fry did not appreciate the danger, neither did Morris Rowland. Again, this is an argument more properly directed to the jury, which on all the evidence can determine whether the state of Morris Rowland's knowledge and appreciation of the risk was more like Elmer Fry's on the one hand or Lynn Craig's on the other.
C.
Plaintiff next asks us to hold that the forecast of evidence is sufficient to survive Morris Rowland's motion for summary judgment in his individual capacity. She contends that the forecast of evidence at least raises a genuine issue of material fact as to whether Morris Rowland was acting as her decedent's co-employee and is, therefore, liable under Pleasant for willful and wanton misconduct. Morris Rowland contends that since the forecast of evidence shows without contradiction that he is president and sole shareholder of Rowland Utility, he cannot be held liable individually as a co-employee of the decedent. He must, rather, be treated as the "alter ego" of the corporation itself.
Since the evidentiary forecast shows that Morris Rowland was at all material times the president and sole shareholder of Rowland Utility, and was acting in furtherance of corporate business, we conclude that any individual liability on his part must be based on the same standard as that applied to the corporation. A number of jurisdictions have held that where corporate employers could not be held civilly liable because of the exclusivity provisions of workers' compensation acts, neither could corporate officers and directors acting
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