Docket No. 142308.
Submitted November 9, 1992, at Grand Rapids.
Decided December 28, 1992; approved for publication February 17, 1993, at 9:00 A.M. Leave to appeal sought.
Foster, Swift, Collins Smith, P.C. (by Michael D. Sanders and Robert L. Knechtel), for the plaintiff.
Varnum, Riddering, Schmidt Howlett (by Robert J. Eleveld and Richard R. Symons), for the defendant.
Before: MacKENZIE, P.J., and GRIFFIN and CONNOR, JJ.
This is another appeal in which we are called upon to address the scope of the intentional tort exception to the exclusive remedy provision of the Workers' Disability Compensation Act. Plaintiff appeals as of right a circuit court order entering summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). We affirm.
The exclusive remedy provision of the Workers' Disability Compensation Act and its exception for intentional torts is embodied in MCL 418.131(1); MSA 17.237(131)(1). This statute provides as follows:
The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort. 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 actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. The issue of whether an act was an intentional tort shall be a question of law for the court. This subsection shall not enlarge or reduce rights under law.
To satisfy specific intent under the statute, it must be established that "the employer had actual knowledge that an injury was certain to occur and wilfully disregarded that knowledge." Pawlak v Redox Corp, 182 Mich. App. 758, 768; 453 N.W.2d 304 (1990) (emphasis in original). The intentional tort exception is not triggered simply because the employer had actual knowledge that an injury was likely to occur at some point during the performance of a given task. See Benson v Callahan Mining Corp, 191 Mich. App. 443, 446-447; 479 N.W.2d 12 (1991). Similarly, it is not enough that the employer acted recklessly and even envisioned the type of accident that did in fact occur. Phillips v Ludvanwall, Inc, 190 Mich. App. 136, 139-140; 475 N.W.2d 423 (1991).
In the present case, plaintiff alleges that decedent fell to his death after being directed to perform work while standing on an unguarded catwalk that defendant had been told posed a certain risk of serious injury. For the reasons stated in Benson and Phillips, the trial court correctly ruled that these allegations fail to establish an intentional tort because they do not establish that defendant had actual knowledge that an injury was certain to occur and wilfully disregarded that knowledge. Plaintiff's reliance on McNees v Cedar Springs Stamping Co, 184 Mich. App. 101; 457 N.W.2d 68 (1990), and Adams v Shepherd Products, US, Inc, 187 Mich. App. 695; 468 N.W.2d 332 (1991), is misplaced. To the extent these cases were correctly decided, we note that McNees and Adams are exceptional cases, and we do not find the facts of the instant case so egregious. While we sympathize with the tragic nature of the accident in this case, the circumstances under which it occurred do not rise to the level of an intentional tort. Defendant was properly awarded summary disposition. Our resolution renders plaintiff's second issue moot.