                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0233n.06

                                      Case No. 16-2417

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                             FILED
                                                                         Apr 21, 2017
JEREMY HETTERSCHEIDT,                             )                 DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiff-Appellant,                       )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE WESTERN DISTRICT OF
ALERIS SPECIFICATION ALLOYS, INC., a              )       MICHIGAN
foreign corporation,                              )
                                                  )
       Defendant-Appellee.                        )
                                                  )
____________________________________/


Before: MERRITT, GILMAN, and DONALD, Circuit Judges.

       MERRITT, Circuit Judge. Under Michigan law, an employee’s remedy against an

employer for an injury occurring while on the job is exclusively provided by the Worker’s

Disability Compensation Act with one exception: a claim alleging an intentional tort. Mich.

Comp. Laws § 418.131(1). The pertinent section of the Worker’s Disability Compensation Act

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
Case No. 16-2417, Hetterscheidt v. Aleris Spec. Alloys, Inc.


       shall be a question of law for the court. This subsection shall not enlarge or
       reduce rights under law.

       Plaintiff Jeremy Hetterscheidt appeals the district court’s grant of summary judgment to

defendant Aleris Specification Alloys, Inc. in this personal-injury action arising from plaintiff’s

injury at his workplace. After defendant removed the case to federal court based on diversity

jurisdiction, 28 U.S.C. § 1332(a), the district court granted summary judgment to defendant on

the ground that the injury did not fall within the intentional-tort exception to the Worker’s

Disability Compensation Act, Mich. Comp. Laws § 418.131(1). We agree and affirm.

                                                 I.

       Plaintiff Jeremy Hetterscheidt began working for defendant Aleris Specification Alloys,

Inc., n/k/a Real Alloy Specification, Inc., a Delaware corporation headquartered in Cleveland,

Ohio, on December 12, 2013. Plaintiff was hired as a full-time laborer through Elwood Staffing

Services, a temporary employment agency.              For purposes of the Worker’s Disability

Compensation Act, plaintiff was an employee of both Aleris and Elwood Staffing.

       The Aleris plant where plaintiff worked recycles aluminum. Scrap metal and aluminum

are brought into the upper level of the plant in bales or piles with forklifts or front loaders. The

material is staged in an area on the upper level near the crushing machine, also called the

“crusher.” The upper level is approximately 12 feet above the lower level. When the bales or

piles are being staged for crushing on the upper level, they are sometimes piled against a roughly

four-foot high retaining wall. See Appellee’s Br. at 7 (photo of bales stacked against retaining

wall). Workers then feed the aluminum through the crusher on a conveyor belt. While the

crushing machine is operating, scrap metal falls off the conveyor belt to the lower level. No one

is allowed on the lower level underneath the crusher when it is operating.             Scrap metal

sometimes falls over the retaining wall when the machine is not running due to the staging or

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Case No. 16-2417, Hetterscheidt v. Aleris Spec. Alloys, Inc.


moving around of the metal bales or piles on the upper level in preparation for the crusher. After

each crusher run, while the machine is off, an employee sweeps the area beneath the crusher.

Plaintiff swept the lower area underneath the crusher between one and six times per shift.

       On March 5, 2014, plaintiff was working second shift.           During this shift, he was

sweeping and picking up debris between crusher runs, so the machine was not operating. While

plaintiff was sweeping the lower area, a bale of aluminum siding, weighing approximately 1,160

pounds, went over the upper wall and fell 12 feet to the area below where plaintiff was working.

The bale hit and injured him, and he was buried beneath scrap metal because the bale came apart.

Plaintiff was wearing all of the required equipment when he was injured, including steel-toed

boots and a hard hat. Plaintiff did not see the aluminum bale roll over the upper wall and has no

personal knowledge of how the bale fell over the wall. The forklift operator testified that he was

stacking one bale on top of another on the upper level to make room for other material when the

bale slipped off the forklift and went over the retaining wall.        Plaintiff received worker’s

compensation benefits after his injury and, as of the date of his deposition, plaintiff has received

all of the worker’s compensation benefits from the State of Michigan for which he has applied.

       Plaintiff filed his complaint in federal court based on diversity jurisdiction. Defendant

moved for summary judgment, and the district court granted the motion, finding that plaintiff’s

claim did not meet the high threshold necessary to show that the injury fell within the

intentional-tort exception to the Worker’s Disability Compensation Act. Hetterscheidt v. Aleris

Spec. Alloys, Inc., No. 1:15-cv-18, 2016 WL 7638153 (W.D. Mich. Sept. 6, 2016). This appeal

followed. For the following reasons, we affirm the judgment of the district court.




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Case No. 16-2417, Hetterscheidt v. Aleris Spec. Alloys, Inc.


                                                       II.

       The objective of Michigan’s workers’ compensation laws is to promote prompt and sure

compensation for workplace injuries regardless of fault. In exchange for this benefit, Michigan

eliminated civil suits in tort for such injuries, with the very limited exception of intentional torts.

To ensure that this exception would be applied very narrowly, the Michigan legislature defined

“intentional tort” in this context to 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.”                 Mich. Comp. Laws

§ 418.131(1). Plaintiff attempts to fit his tort claim within this narrow exception to Michigan’s

law.

       An injured employee may establish the specific intent to injure in one of two ways: (1) by

demonstrating that the employer “made a conscious choice to injure an employee and ha[s]

deliberately acted or failed to act in furtherance of that intent,” Palazzola v. Karmazin Prods.

Corp., 565 N.W.2d 868, 873 (Mich. Ct. App. 1997), or (2) by circumstantial evidence showing

that “the employer had actual knowledge that an injury was certain to occur and willfully

disregarded that knowledge,” Mich. Comp. Laws § 418.131(1); see also Travis v. Dreis

& Krump Mfg. Co., 551 N.W.2d 132, 138 (Mich. 1996). As plaintiff does not allege that his

employer made a “conscious choice” to injure him, the issue before us is whether plaintiff can

prove that defendant had an intent to injure by establishing that (1) the employer had actual

knowledge (2) that an injury was certain to occur (3) yet disregarded that knowledge. Bagby v.

Detroit Edison Co., 865 N.W.2d 59, 62-63 (Mich. Ct. App. 2014) (citing Travis, 551 N.W.2d at

143-44).



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Case No. 16-2417, Hetterscheidt v. Aleris Spec. Alloys, Inc.


         The standard for establishing that an injury is “certain to occur” is “extremely high,” and

requires the plaintiff to show that “no doubt exists with regard to whether [an injury] will occur,”

Travis, 551 N.W.2d at 143 (emphasis added), and that the employer’s knowledge encompasses

the harm that indeed occurred. An employer’s knowledge of general risks is insufficient to

establish an intentional tort. See Oaks v. Twin City Foods, Inc., 497 N.W.2d 196, 197 (Mich. Ct.

App. 1992) (“[I]t is not enough that the employer acted recklessly and even envisioned the type

of accident that did in fact occur.”). Dangerous conditions may form the basis of an intentional-

tort claim under the Act only if the injury is “sure and inevitable.” Alexander v. Demmer Corp.,

660 N.W.2d 67 (Mich. 2003). Consequently, “the laws of probability . . . play no part in

determining the certainty of injury.” Travis, 551 N.W.2d at 143. Additionally, whether a similar

incident has occurred in the past is not dispositive.                  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.” Bagby, 865 N.W.2d at 62.

         The undisputed evidence is that items routinely fell over the wall to the area below, but

this does not mean that injury was certain to occur.1 While it may be true that injury is likely to

occur if heavy items fall over the wall when someone is in the area below, there was nothing to

inform defendant that an injury was “certain” to occur. The evidence demonstrates only that

defendant was aware of a potentially dangerous condition—it was not aware that injury was

certain to occur.

         Reliance on statements or other evidence that an injury was just “a matter of time” is

misplaced. Plaintiff himself testified at his deposition that he did not think he would be injured,

1
  Plaintiff contends that the district court disregarded the evidence that material came over the wall even when the
crusher was not in operation. But the district court specifically pointed to plaintiff’s evidence about material falling
over the wall between crusher runs. 2017 WL 7638153, at *4 (“The accident here was unrelated to such falling
metal debris and did not occur during a crusher run as in the instances cited by Plaintiff, but instead involved an
aluminum bale being moved with a forklift.”).

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Case No. 16-2417, Hetterscheidt v. Aleris Spec. Alloys, Inc.


negating any certainty: “Honestly, I never thought it would ever happen, the bale like that. . . .

[s]tuff came over all the time but you never know.” Hetterscheidt Dep. at 58 (emphasis added).

Plaintiff concedes in these words that while the accident might have been probable, it was not

preordained. The evidence reflects that the area beneath the wall was indeed dangerous and that

under the laws of probability someone might eventually get hurt. But these types of dangerous

conditions fall well short of establishing a condition that is certain to cause injury.

                                                     III.

       Plaintiff alternatively relies on the principle that a “continuously operative dangerous

condition” may form the basis for a claim under the Act’s intentional-tort exception. The

Michigan Supreme Court has observed that “[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.” Giles v.

Ameritech, 660 N.W.2d 72, 73 (Mich. 2003) (emphasis added) (citing Travis, 551 N.W.2d at

145); Alexander, 660 N.W.2d at 67; Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 455-

56 (6th Cir. 2002) (holding that the Worker’s Disability Compensation Act’s intentional-tort

exception did not apply where plaintiffs suffered injury after being instructed to remove carpet

under which there was asbestos because the plaintiffs had shown only that the defendants knew

of the general dangers of asbestos and did not provide proper training or safety equipment). The

key is that the employee is left in the dark about the danger he will encounter and is therefore

“unable to take steps to keep from being injured.” Travis, 551 N.W.2d at 145.

       But in this case, there was no need for defendant to notify plaintiff of the dangerous

condition or the nature of the danger because plaintiff testified that he and others brought the

danger to defendant’s attention on more than one occasion. See, e.g., Hetterscheidt Dep. at 62.



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Case No. 16-2417, Hetterscheidt v. Aleris Spec. Alloys, Inc.


Plaintiff was clearly aware of the danger and the potential for severe injury. When heavy metal

objects are being moved 12 feet overhead with only a four-foot high wall as a barrier, the

potential for serious harm to plaintiff was obvious. The record is clear that plaintiff’s situation is

distinguishable from the hypothetical employee described in Travis who is unaware of the

danger and unable to take steps to protect himself. Therefore, even if plaintiff was required to

confront a “continuously operative dangerous condition,” the fact that plaintiff was aware of it

precludes application of the intentional-tort exception to the Act. As a result, plaintiff cannot

invoke the continuously operative dangerous-condition doctrine to establish that defendant

committed an intentional tort.

       Viewing this evidence in the light most favorable to plaintiff, we conclude that the

district court did not err in granting summary judgment on the ground that there is no genuine

dispute regarding the inapplicability of the intentional-tort exception to the Worker’s Disability

Compensation Act.

       Accordingly, the judgment of the district court is affirmed.




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