Opinion
No. 122751.
June 12, 2003.
COA: 232530, Wayne CC: 99-932905-NP
On order of the Court, the application for leave to appeal from the September 6, 2002 decision of the Court of Appeals is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the judgments of the Court of Appeals and the trial court and REMAND the matter to the Wayne Circuit Court for further proceedings consistent with this order. In order to recover under the intentional tort exception to the exclusive remedy of the Worker's Disability Compensation Act, MCL 418.131(1), which requires that the employer must have "specifically intended an injury," a plaintiff must show that his employer had "actual knowledge" that an injury was "certain to occur" and "wilfully disregarded" that knowledge. See Travis v. Dreis Krump Manufacturing Co, 453 Mich. 149 (1996); Gray v. Morley (After Remand), 460 Mich. 738 (1999); Palazzola v. Karmazine Products, 223 Mich. App. 141 (1997). An incident "certain to occur" cannot be established by reliance on the laws of probability, the mere occurrence of a similar event, or conclusory statements of experts. Travis, supra at 174-175; Palazzola, supra at 149-150. It must be sure and inevitable. Travis, supra at 174. A continuously operative dangerous condition may form the basis of a claim under the intentional tort exception only if the employer knows the condition will cause injury and refrains from informing the employee about it.
Cavanagh and Kelly, JJ., would deny leave to appeal.