            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                            COURT OF APPEALS



ZAFER J. ALI,                                                        UNPUBLISHED
                                                                     August 27, 2019
               Plaintiff-Appellant,

v                                                                    No. 344228
                                                                     Wayne Circuit Court
SIBLINI BAKERY, INC.,                                                LC No. 17-005179-NO

               Defendant-Appellee,
and

SALTEK BAKERY EQUIPMENT,

               Defendant.


Before: BECKERING, P.J., and SAWYER and CAMERON, JJ.

PER CURIAM.

       Plaintiff appeals from an order of the circuit court granting summary disposition in favor
of defendant Siblini Bakery (“defendant”) on plaintiff’s personal injury claim. 1 We reverse and
remand.

        Plaintiff was employed by defendant and operated a pita bread dough extruder
divider/sheeter machine. Plaintiff claims that he was required to operate the machine without
proper guards in place and that on the day in question his left hand was pulled into the machine
and was seriously injured. In his deposition, plaintiff described that part of his responsibility was
to keep the dough from piling up in the machine and causing the production line to shut down.
He was required to clear the dough while the machine was still operating so that the production
did not stop. It was while clearing the dough with a metal tool that his hand was drawn into the
machine. A nearby coworker turned off the machine. It took 40 to 60 minutes to extricate his


1
 The claims against Saltek Bakery Equipment, based upon product liability and breach of
warranty, were later voluntarily dismissed without prejudice and are not at issue in this appeal.



                                                -1-
hand from the machine. Plaintiff further testified that after the accident, various coworkers told
him that eight other people had been similarly injured on the machine.

        Defendant moved for summary disposition under MCR 2.116(C)(4), (8), and (10),
arguing that the exclusive remedy provision of the Worker’s Disability Compensation Act
(WDCA), MCL 418.131, precluded plaintiff’s claim. Plaintiff responded by arguing that the
intentional tort exception to the exclusive remedy provision applies in the case. The trial court
disagreed and granted summary disposition. While neither the trial court’s opinion from the
bench nor its order identifies the subrule under which it was granting summary disposition,
because it based its decision on a lack of evidence, we presume that it granted summary
disposition under (C)(10). The entirety of the trial court’s opinion from the bench is as follows:

               THE COURT: The opinion of the Court is as follows.

               There are two Defendants here, Siblini Bakery, the employer of the
       injured Plaintiff has filed a Motion for Summary Disposition claiming that
       Plaintiff’s exclusive remedy is the Workers’ Compensation Act and there’s no
       evidence here that the employer pushed his hand into the machine, so the Court
       will grant summary disposition for Siblini’s Bakery.

               The case will continue with one Defendant, Saltek Bakery Equipment.

               Defense counsel can submit an order.

        We review de novo summary disposition decisions. El-Khalil v Oakwood Healthcare,
Inc, ___ Mich ___; __ NW2d ___ (No. 157846, issued 7/10/19), slip op at 6. The Court in El-
Khalil, slip op at 6-7, explained the distinction between motions under (C)(8) and (C)(10):

                A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim
       based on the factual allegations in the complaint. Feyz v Mercy Mem Hosp, 475
       Mich 663, 672; 719 NW2d 1 (2006). When considering such a motion, a trial
       court must accept all factual allegations as true, deciding the motion on the
       pleadings alone. Bailey v Schaaf, 494 Mich 595, 603; 835 NW2d 413 (2013);
       MCR 2.116(G)(5). A motion under MCR 2.116(C)(8) may only be granted when
       a claim is so clearly unenforceable that no factual development could possibly
       justify recovery. Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004).

               A motion under MCR 2.116(C)(10), on the other hand, tests the factual
       sufficiency of a claim. Johnson v VanderKooi, 502 Mich 751, 761; 918 NW2d
       785 (2018). When considering such a motion, a trial court must consider all
       evidence submitted by the parties in the light most favorable to the party opposing
       the motion. Id. A motion under MCR 2.116(C)(10) may only be granted when
       there is no genuine issue of material fact. Lowrey v LMPS & LMPJ, Inc, 500
       Mich 1, 5; 890 NW2d 344 (2016). “A genuine issue of material fact exists when
       the record leaves open an issue upon which reasonable minds might differ.”
       Johnson, 502 Mich at 761 (quotation marks, citation, and brackets omitted).


                                               -2-
        We now turn to the question whether the trial court properly granted summary disposition
in this case. In Bagby v Detroit Edison Co, 308 Mich App 488, 491-493; 865 NW2d 59 (2014),
this Court discussed the intentional tort exception to the exclusive remedy provision of the
WDCA:

               Generally, the benefits provided by the WDCA are the sole remedy for
       employees to recover from their employers when the employees sustain work-
       related injuries or occupational diseases. Id. at 695–696. The only exception to
       this rule is when the employee can show that the employer committed an
       intentional tort. MCL 418.131(1); Johnson [v Detroit Edison Co], 288 Mich App
       [688; 795 NW2d 161 (2010)] at 696. For purposes of the WDCA, an “intentional
       tort” is not a true intentional tort. Travis v Dreis & Krump Mfg Co, 453 Mich
       149, 168; 551 NW2d 132 (1996) (opinion by BOYLE, J.). Rather, it exists

       “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. [MCL 418.131(1).]”

       Thus, to recover under the intentional tort exception of the WDCA, a plaintiff
       must prove that his or her injury was the result of the employer’s deliberate act or
       omission and that the employer specifically intended an injury. See MCL
       418.131(1); Travis, 453 Mich at 169-180 (opinion by BOYLE, J.). In other words,
       a plaintiff must show that “an employer ... made a conscious choice to injure an
       employee and ... deliberately acted or failed to act in furtherance of that intent.”
       Travis, 453 Mich at 180 (opinion by BOYLE, J.).

                There are two ways for a plaintiff to show that an employer specifically
       intended an injury. The plaintiff can provide direct evidence that the employer
       “had the particular purpose of inflicting an injury upon his employee.” Id. at 172.
       In the alternative, an employer’s intent can be proven by circumstantial evidence,
       i.e., that the employer “has actual knowledge that an injury is certain to occur, yet
       disregards that knowledge.” Id. at 173, 180.

              Constructive, implied, or imputed knowledge does not satisfy this actual
       knowledge requirement. Johnson, 288 Mich App at 697. In addition, “[a]n
       employer’s knowledge of general risks is insufficient to establish an intentional
       tort.” Herman v Detroit, 261 Mich App 141, 149; 680 NW2d 71 (2004); see also
       House v Johnson Controls, Inc, 248 F Appx 645, 647-648 (CA 6, 2007). “In the
       case of a corporate employer, a plaintiff need only show that ‘a supervisory or
       managerial employee had actual knowledge that an injury would follow from
       what the employer deliberately did or did not do.’ ” Johnson, 288 Mich App at
       697, quoting Fries v Mavrick Metal Stamping, Inc, 285 Mich App 706, 714; 777
       NW2d 205 (2009) (citation and quotation marks omitted).

             An injury is “certain to occur” if “there is no doubt that it will occur . . . .”
       Johnson, 288 Mich App at 697 (quotation marks and citation omitted); see also

                                                -3-
        Travis, 453 Mich at 174 (opinion by BOYLE, J.). As the Supreme Court explained
        in Travis, 453 Mich at 174 (opinion by BOYLE, J.):

        “[T]he laws of probability, which set forth the odds that something will occur,
        play no part in determining the certainty of injury. Consequently, scientific proof
        that, for example, one out of ten persons will be injured if exposed to a particular
        risk, is insufficient to prove certainty. Along similar lines, just because something
        has happened before on occasion does not mean that it is certain to occur again.
        Likewise, just because something has never happened before is not proof that it is
        not certain to occur.”

        In addition, “conclusory statements by experts are insufficient to allege the
        certainty of injury contemplated by the Legislature.” Id. The existence of a
        dangerous condition does not mean an injury is certain to occur. Id. An
        employer’s awareness of a dangerous condition, or knowledge that an accident is
        likely, does not constitute actual knowledge that an injury is certain to occur.
        Johnson, 288 Mich App at 697–698. The Supreme Court has also reasoned that
        an employer’s attempts to repair a machine and its repeated warnings to
        employees may be evidence that the employer did not have actual knowledge that
        an injury was certain to occur. Travis, 453 Mich at 177 (opinion by BOYLE, J.).
        On the other hand, “ [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 an injury and refrains from informing the employee about
        it.” Alexander v Demmer Corp, 468 Mich 896, 896–897; 660 NW2d 67 (2003).

                Finally, the plaintiff must show that the defendant willfully disregarded its
        actual knowledge that injury was certain to occur. See MCL 418.131(1); Travis,
        453 Mich at 179 (opinion by BOYLE, J.). This requirement is “intended to
        underscore that the employer’s act or failure to act must be more than mere
        negligence . . . .” Id. at 179.

        This clearly creates a rather high bar for a plaintiff to clear in order to be able to establish
the intentional-tort exception. And while we are skeptical whether plaintiff will ultimately be
able to clear that bar, we nevertheless reverse because we find two fundamental errors by the
trial court.

        First, the trial court granted summary disposition before discovery was complete. Indeed,
plaintiff even indicated that it had depositions scheduled a few weeks after the motion hearing. 2
Second, the trial court’s opinion only addressed one of the two ways in which a plaintiff can



2
  According to plaintiff’s counsel, they had yet to complete taking depositions because it took
two court orders to compel defendant to respond to plaintiff’s request for a list of employees who
worked for defendant during the relevant time period. Apparently, plaintiff was seeking
evidence from other employees regarding the claims about previous accidents on the machine.


                                                  -4-
establish an intentional tort. As discussed at length in Bagby, an intentional tort can be
established either by showing (1) that the employer specifically intended to injure the employee
or (2) that the employer disregarded actual knowledge that an injury was certain to occur. 308
Mich App at 491. The trial court addressed the first way with its statement “there’s no evidence
here that the employer pushed his hand into the machine,” but ignored the second path to
establishing an intentional tort. And it is this second path that plaintiff follows. Because this
was not addressed by the trial court in the first instance, we decline to do so ourselves on appeal
and leave it for the trial court to address on remand.

      Because of our resolution of this issue, we need not address plaintiff’s additional
argument regarding whether the affidavit proffered by defendant was properly executed.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Plaintiff may tax costs.



                                                            /s/ Jane M. Beckering
                                                            /s/ David H. Sawyer
                                                            /s/ Thomas C. Cameron




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