                          STATE OF MICHIGAN

                             COURT OF APPEALS



COLBY SMITH,                                                        UNPUBLISHED
                                                                    June 2, 2015
               Plaintiff-Appellee,

v                                                                   No. 318702
                                                                    Lenawee Circuit Court
MICHIGAN PALLET, INC., JONATHAN J.                                  LC No. 11-004180-NO
POORTENGA, and KENNETH ENGELSMA,

               Defendants-Appellants,
and

LPS EQUIPMENT & ACQUISITION
COMPANY, INC., ADRIAN ROCSKAY, TODD
STRONG, JAMES KIVELL, and JOHN DOE,

               Defendants.


Before: CAVANAGH, P.J., and METER and SHAPIRO, JJ.

PER CURIAM.

       Appellants appeal by leave granted from the trial court’s order denying their motion for
summary disposition under MCR 2.116(C)(4) (lack of subject-matter jurisdiction) and (C)(10)
(no genuine issue of material fact) in this action seeking relief outside the Worker’s Disability
Compensation Act (WDCA), MCL 418.101 et seq. We affirm.

                                I. FACTUAL BACKGROUND

        Appellee began working for appellant Michigan Pallet, Inc., part time in June 2009. A
month later he was moved to full-time employment. Appellee’s immediate supervisor was
appellant Jonathan Poortenga. Appellant Kenneth Engelsma was Poortenga’s superior. Part of
appellee’s responsibilities included operating a Whirlwind jump saw. A jump saw is a
pneumatically powered piece of equipment. When not activated, the blade is enclosed in a lower
table-guard section. When activated with a foot pedal, the blade swings or “jumps” up through
the blade opening. First, however, a hood that sits over the blade opening moves down and holds
the wood in place while simultaneously acting as a guard. Poortenga testified that the hood was
high enough for four inches of material to fit underneath. The implication is that if material less


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than four inches high is being cut it would still be possible for an operator’s hand to be under the
hood and in range of the saw’s blade.

        The Michigan Occupational Safety and Health Administration (MIOSHA) conducted a
safety inspection of Michigan Pallet’s facilities on June 1 and 8, 2009, before appellee’s move to
full-time employment. MIOSHA determined that the Whirlwind jump saw needed additional
safety features because it did not entirely prevent the operator from accessing the blade when
activated. Poortenga implemented a two-hand safety mechanism for the saw. The device
required the operator to push two buttons before the foot pedal could be used to activate the
blade. However, Poortenga admitted that employees had been taping down the switches.
Poortenga testified that he removed the tape both times he saw it on the safety device and issued
verbal warnings to all employees to not tape down the switches. Engelsma admitted that he had
had multiple discussions with Poortenga about the taping down of the switches but that he did
not know if “anything else [was] done” aside from Poortenga’s alleged verbal warnings.

        Significantly, a reading of appellee’s deposition testimony as a whole indicates that when
Poortenga trained appellee on the jump saw he did so with the switches taped down and with his
hands on the board to be cut. On September 18, 2009, appellee was assigned to operate the jump
saw. He testified that he was having trouble with one of the boards he was attempting to cut and
while struggling with the board the saw activated and cut off his hand. Appellee claimed that his
foot was not on the pedal and that the saw malfunctioned. Appellee then brought this suit against
appellants as well as the saw’s manufacturers and the MIOSHA safety inspectors. Appellee
claimed that appellants did not ensure that the safety mechanism was operating properly and that
their failure to do so was an intentional tort that caused his injury and satisfied the intentional tort
exception to obtain relief outside of the WDCA. After appellants moved for summary
disposition, the trial court held that there was a genuine factual issue regarding whether
appellants’ actions satisfied the intentional tort exception.

                                   II. STANDARD OF REVIEW

       “[Q]uestions regarding the exclusive remedy provision of the WDCA” are reviewed
pursuant to MCR 2.116(C)(4). Herbolshemer v SMS Holding Co, 239 Mich App 236, 240; 608
NW2d 487 (2000). This Court reviews de novo a trial court’s decision regarding a motion for
summary disposition under MCR 2.116(C)(4). Herbolshemer, 239 Mich App at 240. We
consider “whether the affidavits and other proofs show that there was no genuine issue of
material fact” and whether the moving party was entitled to judgment as a matter of law. Id.

       A motion for summary disposition under MCR 2.116(C)(10) is also reviewed de novo.
Maiden v Rozwood, 461 Mich 109, 118-120; 597 NW2d 817 (1999). “In evaluating a motion for
summary disposition brought under [MCR 2.116(C)(10)], a trial court considers affidavits,
pleadings, depositions, admissions and other evidence . . . in the light most favorable to the party
opposing the motion.” Maiden, 461 Mich at 120. The moving party is entitled to judgment as a
matter of law when there is no genuine issue regarding any material fact. Id.




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                                           III. ANALYSIS

          The WDCA provides, in part:

                  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. [MCL 418.131(1).]

        In order to show that an intentional tort occurred, a plaintiff must show: (1) a deliberate
act or omission and (2) a specific intent to injure. Palazzola v Karmazin Prods Corp, 223 Mich
App 141, 149; 565 NW2d 868 (1997). In the absence of direct evidence of specific intent, a
plaintiff can satisfy the second prong by showing:

                 (1) “Actual Knowledge”—This element of proof precludes liability based
          upon implied, imputed, or constructive knowledge. Actual knowledge for a
          corporate employer can be established by showing that a supervisory or
          managerial employee had “actual knowledge that an injury would follow from
          what the employer deliberately did or did not do.”

                  (2) “Injury certain to occur”—This element establishes an extremely high
          standard of proof that cannot be met by reliance on the laws of probability, the
          mere prior occurrence of a similar event, or conclusory statements of experts.
          Further, an employer’s awareness that a dangerous condition exists is not enough.
          Instead, an employer must be aware that injury is certain to result from what the
          actor does.

                  (3) “Willfully disregard”—This element requires proof that an employer’s
          act or failure to act must be more than mere negligence, e.g., failing to protect
          someone from a foreseeable harm. Instead, an employer must, in fact, disregard
          actual knowledge that an injury is certain to occur. [Id. at 149-150 (citation and
          quotation marks omitted).]

        Appellants also moved for summary disposition under MCR 2.116(C)(10) with respect to
appellee’s claim for intentional infliction of emotional distress (IIED).1 This claim is also
subject to the exclusive remedy provision of the WDCA. See MCL 418.131(1).



1
    Appellee raised counts of “intentional tort” and IIED.


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                            A. DELIBERATE ACT OR OMISSION

        The Supreme Court has interpreted the deliberate act requirement in MCL 418.131(1) to
“encompass both commissions and omissions.” Travis v Dreis & Krump Mfg Co, 453 Mich 149,
169; 551 NW2d 132 (1996) (opinion of BOYLE, J.).2 An employer’s conscious failure to act is
sufficient to satisfy the deliberate act requirement. Palazzola, 223 Mich App at 149. When the
injury is the result of the injured party’s “momentary and tragic lapse in judgment, not the result
of an intentional act by [the] defendant,” the intentional tort exception is inapplicable. Herman v
Detroit, 261 Mich App 141, 150; 680 NW2d 71 (2004).

        Appellants have argued that their alleged failure to ensure that the safety device was
operating was not the cause of appellee’s injury, but that appellee’s injury was caused by either
his lapse in judgment or by the saw’s malfunction. It is true that even absent the safety features,
appellee knew where the blade opening was and knew that there was never any reason to place
his hand over the blade opening. Therefore, appellee’s lapse in judgment can be said to be one
“but for” cause of his injury. In addition, appellee testified that his foot was not on the pedal
when the saw activated. As such, a malfunction in the how the saw operated could also be said
to be a “but for” cause of his injury. However, had the safety device that MIOSHA required
appellants to install been operating properly, the saw would not have been able to activate with
appellee’s hand over the blade opening. We conclude that while appellants’ alleged failure to
ensure that the safety device was working properly was not the sole “but for” cause of appellee’s
injury, it was a “but for” cause of his injury. Therefore, the requirement for a deliberate act or
omission has been met.

                              B. SPECIFIC INTENT TO INJURE

                                  1. ACTUAL KNOWLEDGE

        The Legislature’s use of the “term ‘actual knowledge,’ and not the less specific word
‘knowledge,’” means that “constructive, implied, or imputed knowledge is not enough.” Travis,
453 Mich at 173. In Travis, the Court determined that the evidence, viewed in the light most
favorable to the plaintiff, showed that the defendant, through its supervisory employee, had
“actual knowledge” that a press machine was malfunctioning because it was double cycling. Id.
at 181. We note that there is no requirement for the plaintiff to show that the defendant knew an
injury would occur in a specific way or on a specific date. Johnson v Detroit Edison Co, 288
Mich App 688, 699; 795 NW2d 161 (2010). In Johnson, id. at 699-700, the defendants’
managers had been told that a boiler was in disrepair and the disrepair was “causing a buildup of



2
  Justice Mallet concurred with the lead opinion of Justice Boyle. Travis, 453 Mich at 191.
Justices Riley, Brickley, and Weaver agreed with the test established by the lead opinion for
establishing whether an intentional tort was committed, but disagreed with the application of that
test to the facts of the companion case that was consolidated with Travis on appeal. Id. at 191-
192.


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ash that would explode.” This Court concluded that that knowledge satisfied the actual
knowledge prong. Id. at 700.

        Viewing the facts in the light most favorable to appellee in the case at hand, it appears
that appellants clearly knew that the safety system was being bypassed by the employees and that
insufficient measures had been undertaken to address this. Appellants also knew that when the
safety system was bypassed, the jump saw was not meeting the safety standards set by
MIOSHA.3 This prong has been satisfied.

                                2. INJURY CERTAIN TO OCCUR

        “When an injury is ‘certain’ to occur, no doubt exists with regard to whether it will
occur.” Travis, 453 Mich at 174. “[T]he laws of probability . . . play no part in determining the
certainty of injury.” Id. Whether an incident has happened before or not is not proof either way
of whether an injury is certain to occur. Id. Conclusory statements of experts are also
insufficient to establish certainty. Id. Similarly, it is not enough for an employer to know that a
dangerous condition exists; instead, the employer must know that injury is certain to occur from
what the employee does. Id. at 176. More is required than that “the employer had actual
knowledge that an injury was likely to occur at some point during the performance of a given
task.” Oaks v Twin City Foods, 198 Mich App 296, 297; 497 NW2d 196 (1992). “It is not
enough that the employer acted recklessly and even envisioned the type of accident that did in
fact occur.” Id. at 298.

        In McNees v Cedar Springs Stamping Co, 184 Mich App 101, 103; 457 NW2d 68 (1990),
the plaintiff argued that the defendant had actual knowledge that an injury was certain to occur
by means of a press machine that the defendant had been warned contained a malfunctioning
foot pedal. The plaintiff had also contended in that case that he was instructed to work on the
press machine and use the foot pedal. Id. at 104. This Court found evidence that the defendant
was aware of the danger, refused to correct it, violated MIOSHA standards, evidently knew of
several near injuries, forced defendant to confront the danger, and destroyed damaging evidence
after the plaintiff’s injury. Id. at 105-106. The Court determined that these alleged facts were
sufficient to justify a jury question with regard to the intentional tort exception. Id. at 106.4



3
  Given appellee’s testimony that Poortenga held onto the wood when demonstrating to appellee
how to use the saw (meaning he could not have had his hands on the safety mechanism), it could
even be said that Poortenga had actual knowledge that appellee was trained on the saw without
the safety mechanism operating and thus that he had actual knowledge that appellee was
operating the saw without the safety mechanism on the day in question.
4
  The Court explained that “the issue whether the facts alleged by plaintiff are sufficient to
constitute an intentional tort is a question of law for the court, while the issue whether the facts
are as plaintiff alleges is a jury question. If the latter issue were for the court, all jury trials in
this type of case would have been eliminated, and we find that this was not the intention of the
Legislature.” McNees, 184 Mich App at 104.


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       In Adams v Shepherd Prods, US, Inc, 187 Mich App 695, 697-698; 468 NW2d 332
(1991), the plaintiff alleged that the defendant had assigned her to operate a circular table saw
and that part of her job required reaching under the table where the saw blade was unguarded.
This resulted in an accident where the plaintiff lost three fingers on her right hand. Id. at 696.
The plaintiff further alleged that the saw’s on/off switch was taped in the “on” position. Id. at
698. The Court, relying in part on McNees, stated that if the plaintiff’s allegations were true,
“then defendant had actual knowledge that an injury was certain to occur . . . .” Id.

        However, in Travis, 473 Mich at 182, the Court found that there was not knowledge that
an injury was certain to occur. In that case, the plaintiff had alleged that the defendant knew a
press was double cycling. Id. at 181. However, the record showed that the press double cycled
only intermittently. Id. at 182. The record also established that the plaintiff’s supervisor was
willing to operate the press and had adjusted the machine just before the plaintiff’s operation of
it. Id. Such adjustments had, in the past, allowed the press to avoid double cycling for at least a
day. Id. Finally, the record showed that while the press did double cycle, it did so slowly and all
previous employees had been able to remove their hands in time to avoid an injury. Id.

        This Court also found that an injury was not certain to occur in Palazzola, 223 Mich App
at 151. In that case, the decedent had been directed to enter a chemical tank to relieve a fellow
employee who had been working in it. Id. at 145-146. The first employee who was in the tank
came out feeling nauseated and light headed and told a coworker that the fumes were strong. Id.
at 145-146. Upon the decedent’s supervisor’s knowledge of the strength of the fumes, he
ordered the decedent out of the tank, but the decedent had already collapsed. Id. at 146. The
supervisor then went into the tank himself to try and remove the decedent, but also “was
overcome.” Id. Emergency crews removed both men; only the supervisor recovered. Id. This
Court determined that the supervisor did not have actual knowledge that injury was certain to
occur. Id. at 154. This Court concluded that the supervisor’s testimony and his own willingness
to go into the tank showed that he did not have knowledge that injury would certainly result from
entering the tank. Id.

         The facts of the present case, viewed in the light most favorable to appellee, are more
similar to the cases where the “injury certain to occur” prong was satisfied. Like in McNees,
appellants in the present case violated MIOSHA standards. Like the McNees plaintiff, who was
ordered to work on an unsafe machine, appellee was trained to operate the jump saw in an unsafe
manner. Also, like the situation in Adams, switches were allowed to remain taped down to
facilitate the operation of the jump saw, even though this taping down of the switches would
cause an operator’s hand to come in contact with the saw blade. While it is true that Poortenga
was apparently willing to operate the jump saw with the switches taped down (a situation similar
to that in Travis, where the supervisor operated the press machine that caused the injury), the
danger here was not an intermittent danger like in Travis. We also find Palazzola
distinguishable because in that case the plaintiff was ordered into the gas-filled tank before the
fellow worker mentioned the strong fumes. See Palazzola, 223 Mich App at 146.

       Here, appellee worked on and was trained to work on an extremely and obviously
dangerous piece of equipment (a saw) without using a required safety feature. Given that
appellee would be using this saw over and over again during the course of his work, and given
the case law discussed above, we find that appellee adequately established the “injury certain to

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occur” prong of the intentional tort exception, despite how he, a non-lawyer, may have worded
certain answers in his deposition.5

                                   3. WILLFUL DISREGARD

        “[T]he use of the term ‘wilfully’ . . . is intended to underscore that the employer’s act or
failure to act must be more than mere negligence, that is, a failure to act to protect a person who
might foreseeably be injured from an appreciable risk of harm.” Travis, 453 Mich at 178-179.
In Travis, id. at 182-183, the Court determined that the defendant did not willfully disregard the
harm because the defendant, knowing that previous adjustments had prevented the press from
double cycling, adequately addressed the danger by adjusting the press before the plaintiff was
assigned to operate it. In Johnson, this Court held that the plaintiffs satisfied the “willful
disregard” prong because the plaintiffs “presented evidence that defendant failed to remedy the
condition that caused plaintiffs’ injuries, despite defendant’s knowledge of the condition and the
opportunity to remedy it . . . .” 288 Mich App at 704. In the present case, the facts, when
viewed in the light most favorable to appellee, show that appellants did willfully disregard the
fact that the safety system was being bypassed. While Poortenga testified that he issued verbal
warnings and removed tape holding down the two safety buttons, appellee testified that the
system was bypassed when Poortenga trained him on it. In other words, appellee was shown
how to operate the jump saw by bypassing the safety system; the dangerous condition was given
tacit approval.

        Appellee has adequately established a prima facie case of an intentional tort falling
within the exception to the WDCA.

             C.      INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

       To establish a claim for IIED, a plaintiff must establish the following four elements: “(1)
extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe
emotional distress.” Bhama v Bhama, 169 Mich App 73, 77; 425 NW2d 733 (1988). “The
threshold for showing extreme and outrageous conduct is high.” VanVorous v Burmeister, 262
Mich App 467, 481; 687 NW2d 132 (2004), overruling in part on other grounds recognized by
Brown v Lewis, 779 F3d 401 (CA 6, 2015). The conduct must be “so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” VanVorous, 262 Mich App at 481-
482 (citations and quotation marks omitted). “It has been said that [an IIED] case is generally
one in which the recitation of the facts to an average member of the community would arouse his




5
  Appellants argue that appellee destroyed his own lawsuit by stating, for example, that
appellants simply “knew [the saw] wasn’t as safe as it could have been.” Appellants argue that
appellee essentially admitted that injury was not certain to occur. We emphasize, however, that
appellee is not a lawyer and was not charged at his deposition with reading and applying
analogous case law to the present situation.


                                                -7-
resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Doe v Mills, 212 Mich
App 73, 91; 536 NW2d 824 (1995).

       Given our conclusion that appellee has sufficiently demonstrated that he was forced to
work on a machine that appellants had actual knowledge would cause him injury, appellee has
demonstrated extreme and outrageous conduct. In addition, the “intent or recklessness” and
“causation” requirements are satisfied, given appellee’s testimony that the safety feature was
being bypassed and that, in fact, he was trained to use the saw without the safety feature. As for
the “severe emotional distress” requirement, appellee testified to having nightmares and
flashbacks and “freak[ing] out.” This Court has determined that a plaintiff’s testimony of
emotional injury is sufficient to establish this prong. Haverbush v Powelson, 217 Mich App 228,
235-236; 551 NW2d 206 (1996). Appellee has established a prima facie case of IIED.

        Affirmed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.




                                                            /s/ /Mark J. Cavanagh
                                                            /s/ Patrick M. Meter
                                                            /s/ Douglas B. Shapiro




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