                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 16a0493n.06

                                           No. 15-2022

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED
GLORIA BARNES, as personal representative of the          )                       Aug 22, 2016
Estate of A.D. Barnes,                                    )                   DEBORAH S. HUNT, Clerk
                                                          )
       Plaintiff-Appellant,                               )
                                                                ON APPEAL FROM THE
                                                          )
                                                                UNITED STATES DISTRICT
v.                                                        )
                                                                COURT FOR THE WESTERN
                                                          )
                                                                DISTRICT OF MICHIGAN
SUN CHEMICAL CORPORATION,                                 )
                                                          )
       Defendant-Appellee.                                )


BEFORE: KEITH, CLAY, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Gloria Barnes, as personal representative of the

Estate of A.D. Barnes, appeals the district court’s grant of summary judgment to defendant Sun

Chemical in this wrongful-death action arising from A.D. Barnes’ lethal employment accident.

After Sun Chemical removed the case to federal court based on diversity jurisdiction, 28 U.S.C.

§ 1332(a), the district court held the Estate’s action barred by the Michigan Workers Disability

Compensation Act’s, Mich. Comp. Laws Ann. § 418.131(1), exclusive-remedy provision,

rejecting the Estate’s argument that the case falls within the statute’s intentional-tort exception.1

We agree and AFFIRM.




       1
           The district court also denied as moot the Estate’s cross-motion for summary judgment.
No. 15-2022
Gloria Barnes v. Sun Chemical Corporation

                                                   I.

       Sun Chemical produces pigment used in making ink. As part of the production process,

forklifts are used to move bags of press cake2 back and forth from the warehouse floor to a

mezzanine level for drying. On November 4, 2011, forklift driver Bruce Pontius (Pontius), who

was operating a forklift on the warehouse level, lifted several 1600-pound bags of press cake up

to the mezzanine.       Kathryn Brown, who was responsible for operating a forklift on the

mezzanine level that day, went up to the mezzanine from the warehouse floor when Pontius

called to tell her he was sending up bags. When she arrived on the mezzanine, she saw that

Pontius had put two or three bags of press cake “up there,” and that one was “off the [pallet].”

(Brown Dep., PID 603, p. 12; PID 618-19, pp. 71-73.) Brown moved the first bag and came

back for the second; when she tried to pull it back, the bag fell. Brown sounded the horn on her

forklift to warn anyone who might be on the warehouse floor. When she returned to the

warehouse floor, she saw that the bag had fallen on someone. An announcement was made over

the PA system that there was a “man down;” employees moved the bag off Barnes and

administered CPR and oxygen, and paramedics and police arrived. (See Gesiakowski Dep., PID

863, pp. 33-34; see also Internal Incident Report, PID 399.) Barnes did not survive.

                                                   II.

       We review de novo a district court’s order granting summary judgment. Rudisill v. Ford

Motor Co., 709 F.3d 595, 600 (6th Cir. 2013). Summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); Mitchell v. Fankhauser, 375 F.3d 477, 479

(6th Cir. 2004). In determining whether summary judgment is proper, we “must view all

       2
           Press cake is pigment that is not fully dried.


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No. 15-2022
Gloria Barnes v. Sun Chemical Corporation

evidence in the light most favorable to the nonmoving party.” Kleiber v. Honda of Am. Mfg.,

Inc., 485 F.3d 862, 868 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)).

       Because this case arises under the district court’s diversity jurisdiction, we apply

Michigan law, looking to decisions of the Michigan Supreme Court, see Saab Auto. AB v. Gen.

Motors Co., 770 F.3d 436, 440 (6th Cir. 2014), and to Michigan Court of Appeals decisions

“unless it is shown that the [Michigan Supreme Court] would decide the issue differently,” see In

re Dow Corning Corp., 419 F.3d 543, 549 (6th Cir. 2005).

       Under the Michigan Worker’s Disability Compensation Act (WDCA), “worker’s

compensation is the exclusive remedy for all on-the-job injuries, except for injuries intentionally

inflicted by the employer.” Gray v. Morley, 596 N.W.2d 922, 924 (Mich. 1999); see also Mich.

Comp. Laws Ann. § 418.131(1). The WDCA’s intentional-tort exception provides:

       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.

Mich. Comp. Laws Ann. § 418.131(1). The question “[w]hether the facts alleged by plaintiff are

sufficient to constitute an intentional tort is a question of law for the . . . court.” Herman v. City

of Detroit, 680 N.W.2d 71, 76 (Mich. Ct. App. 2004) (quoting Gray, 596 N.W.2d at 922).

       The exception’s first sentence requires a showing that the employer “deliberately act[ed]

or fail[ed] to act with the purpose of inflicting an injury on the employee.” Travis v. Dreis &

Krump Mfg. Co., 551 N.W.2d 132, 142 (Mich. 1996) (opinion of Boyle, J.); id. at 150 (opinion

of Riley, J., concurring in the test established by the lead opinion). The second sentence

provides a means of showing specific intent where there is no direct evidence of intent to injure,


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No. 15-2022
Gloria Barnes v. Sun Chemical Corporation

by demonstrating the employer “has actual knowledge that an injury is certain to occur, yet

disregards that knowledge.” Id. at 146. The Estate proceeds under the second theory, asserting

that Sun Chemical disregarded actual knowledge that an injury was certain to occur.

                                              III.

                                               A.

       At the time of the incident, Sun Chemical forklift drivers used the “pushback method”—a

technique wherein the forklift “push[es] the proceeding pallet forward with the subsequent

pallet”—to put bags of press cake on the mezzanine. (Nuttall Dep., PID 723, pp. 14-15;

Hendryx Dep., PID 774, 800-01.) Pontius testified at his deposition that he had received training

on how to use this method safely, and Michigan Occupational Safety and Health Administration

(MIOSHA) senior safety officer Christopher Morano (Morano) testified that this technique could

be performed safely. However, Scott Hendryx (Hendryx), former Operations Manager at Sun

Chemical, testified that the pushback method could lead to safety hazards. Further, according to

former Sun Chemical safety, health, and environmental manager Evert Vander Berg (Vander

Berg), forklift drivers were prohibited from using this method on “dry surface,” and instead were

supposed to put the bags on a conveyor.

       1. Safety Measures

       At the time of the Barnes incident, there was a safety gate on the mezzanine level that

could be opened by a pull-cord on the warehouse level and left open while forklift drivers

transferred bags of press cake to and from the mezzanine. Employee Ray Collins (Collins)

testified on deposition that although Sun Chemical installed the gate sometime after 1999—after

he was hit in the leg by a falling bag of press cake—the gate did not work properly, and thus was




                                               -4-
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Gloria Barnes v. Sun Chemical Corporation

always left open. However, according to Pontius, although the gate failed to work “a couple

times,” someone usually inspected it if it was broken. (See Pontius Dep., PID 590, pp. 82-84.)

        The warehouse also had a “bright blue strobe light” to notify employees when the gate

was open. (Id., PID 588-89, pp.76-77.) Although Sun Chemical contends it installed the light

after the Collins incident in 1999, Collins testified at his deposition that there was a warning light

in place at the time of his incident, but he had never seen it work.           The record contains

conflicting testimony about whether the light was working immediately after the bag of press

cake fell on Barnes. Scott Foster, a Muskegon County deputy sheriff who responded to the

scene, stated that Pontius and another man told him the light was not working, but when he

checked the light, it was working “sporadic[ally].” (Foster Dep., PID 627, p.6; 629, p. 16; 632-

33, pp. 28-29; 633-34, pp.32-33). Pontius, however, testified at his deposition that the light

always worked, and that he saw it working on the day of the incident, before the accident.

Morano—the MIOSHA safety officer who investigated the incident three days later—testified at

his deposition that he inspected the light and it was working. Similarly, Vander Berg and

Hendryx remembered the light working immediately after the incident.

        Finally, according to Sun Chemical, the company has long provided a designated

pedestrian pathway, or “manway,” on the warehouse floor, because employees are not supposed

to walk through the designated forklift area. Although there was a grind-and-mix and storage

area under the mezzanine, employees could access it via the manway without walking through

the forklift area.

        Pontius testified during his deposition that about five years before the Barnes incident,

employees received training to walk on the manway, not in the forklift area; however, he also

explained that it was commonly known that employees walked in other areas on occasion.


                                                 -5-
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Gloria Barnes v. Sun Chemical Corporation

Similarly, Brown testified that employees did not always use the manway, and that they walked

in the area under the mezzanine “pretty much all the time.” (Brown Dep., PID 612-13, pp. 48-

50; PID 617, p. 65.) Three management-level employees—Vander Berg, Hendryx, and James

Andrew Nuttall—testified during their depositions that they knew that employees walked

through the restricted area, or had heard about it, but Vander Berg asserted employees had

received oral warnings from supervisors for doing so, and Hendryx stated he asked employees

not to do so.

       The parties dispute whether the pedestrian walkway was marked at the time of the

incident. According to Collins, it was not marked. But other employees and supervisors testified

on deposition that the walkway was designated with a yellow line. Vander Berg testified that at

the time, the line “may have been faded” or had objects stacked on top of it. (Vander Berg Dep.,

PID 692, p. 48; see also id. at PID 698, p. 69.) Nonetheless, Pontius testified that although the

walkway was not marked with a sign, it was common knowledge that it existed and that

employees were supposed to use it.

       2. Barnes Incident

       When he was struck by the falling bag, Barnes was walking in the forklift area, not on the

pedestrian walkway. According to Sun Chemical, Barnes had no job duties on the warehouse

floor where he was walking.

       A Sun Chemical internal investigation identified the “root causes” of the incident as:

1) use of the pushback technique, causing the pallets to interlock and become unstable, 2) the

operator on the mezzanine failing to notice the pallets were interlocked, 3) Barnes walking

outside the designated area for foot traffic, and 4) the warning light flashing intermittently, with

one to twenty-five second pauses between flashes. Hendryx also testified that the gate being left


                                                -6-
No. 15-2022
Gloria Barnes v. Sun Chemical Corporation

open might have contributed to the incident, although he doubted that the gate would have

stopped the bag from falling.

        MIOSHA cited Sun Chemical for two “serious” violations as a result of the Barnes

incident: 1) inadequate stacking as a result of the pushback method, and 2) inadequate standard

barrier, meaning that although there was a barrier on the mezzanine, it was open while pallets

were moved onto the mezzanine, and employees stated they sometimes looked over to view the

area below, exposing them to a fall hazard.

        3. Prior Incidents

        In 1999, Collins was struck by a bag of press cake that fell from the mezzanine and

landed on his leg; he was walking in the same area where Barnes was struck. Collins filed a

written report about the incident with his supervisor and discussed the incident with Barnes.

According to Sun Chemical, following this incident, the company installed the gate and blue

strobe light.

        Other objects had occasionally fallen from the mezzanines over the years.       Pontius

testified at his deposition that prior to the Barnes incident, he knew of two similar bags and a

steel cage that had fallen from the mezzanines,3 but that there were “usually years in between”

incidents. (Pontius Dep., PID 594-95, pp. 100-03.) Brown stated that “not very many things

fell,” but that as often as weekly, she had seen small wooden pieces of a pallet fall from the

mezzanine if a piece broke off. (Brown Dep., PID 609-10, pp. 36-38.) Of the supervisory or

managerial employees, Hendryx testified that he had heard about Collins’s incident, and that

sometime around 2000 or 2001, an empty fiber drum—a heavy-duty cardboard container—had

fallen off a mezzanine, but that he was unaware of any other incidents.

        3
            One of these incidents appears to refer to the Collins incident.


                                                   -7-
No. 15-2022
Gloria Barnes v. Sun Chemical Corporation

       Edward Wilkes, the Muskegon facility’s Operations Manager, estimated that between

Collins’s incident and Barnes’s incident, “Sun Chemical sent more than 66,000 pigment bags

down from the yellow toner mezzanine and more than 43,200 bags back up” without incident,

and attested that during that timeframe, there were “no other incidents where an individual was

struck or nearly struck by any falling bags of pigment.” (Wilkes Aff., PID 380-81.)

       4. Expert Report

       The Estate retained a safety engineer, Dr. James Miller (Miller), to review the incident.

Miller’s report concluded that Sun Chemical intentionally created the pallet lifting work task and

its method; developed certain warnings upon “recognition of the hazard;” and it “appeared

intentional” that Sun Chemical had not taken further safety precautions after being notified that

its safety measures were not working. (Miller Report, PID 555.) Thus, he concluded that the

accident was preventable, that it “was certain to occur at some point in time without additional

preventative and/or remedial measures,” and that Sun Chemical subjected its employees “to a

recurring and dangerous condition when the yellow toner mezzanine gate was open and the first

floor forklift was not present at the gate.” (Id.)

                                                     B.

       Viewing this evidence in the light most favorable to the Estate, 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 WDCA’s exclusive

remedy provision. To avoid the exclusive-remedy provision, a tort plaintiff covered by the

WDCA must show that the employer had actual knowledge that an injury was certain to occur,

yet disregarded that knowledge. Travis, 551 N.W.2d at 146. Finding the Estate’s failure to meet

the certain-injury requirement dispositive, we address that requirement at the outset.        The


                                                     -8-
No. 15-2022
Gloria Barnes v. Sun Chemical Corporation

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

“no doubt exists with regard to whether [injury] will occur.” Id. at 143. Consequently, “the laws

of probability . . . play no part in determining the certainty of injury,” nor are “conclusory

statements by experts” that merely “parrot[] the language of the legal test” without scientific or

factual support sufficient to demonstrate certainty of injury.       Id. at 143-44.       Additionally,

whether a similar incident has occurred in the past is not dispositive. See id. at 143.

       A court may find that an injury was certain to occur when “an employer subjects an

employee to a continuously operative dangerous condition that it knows will cause an injury, yet

refrains from informing the employee about the dangerous condition so that he is unable to take

steps to keep from being injured.” Id. at 145. 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 in original).       “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 v. Detroit Edison Co., 865 N.W.2d 59, 62 (Mich. Ct. App. 2014).

       The Estate contends that Sun Chemical exposed employees to a continuously operative

dangerous condition—the unsafe transfer of press cake from the warehouse floor to the

mezzanine notwithstanding that employees walked on the warehouse floor below. However, the

Estate fails to meet the high bar for showing certain injury set by the Michigan Supreme Court.

       Although Sun Chemical was aware that employees used the pushback method and that it

caused conditions under which a bag might fall, employees were told not to walk in the forklift

area. Further, the record does not show that employees were regularly—or even more than


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No. 15-2022
Gloria Barnes v. Sun Chemical Corporation

once—injured by falling objects; rather, it shows that accidents were infrequent, with only a few

other large objects falling from mezzanines over the previous decade and smaller objects falling

more frequently, and that tens of thousands of bags had been moved up and down without

incident. Although the facts viewed in the light most favorable to the Estate suggest an injury

may have been likely to occur, the required showing is not made “by demonstrating an

employer’s awareness that a dangerous condition exist[ed], or that an employer knew an accident

was likely.” Johnson v. Detroit Edison Co., 795 N.W.2d 161, 168 (Mich. Ct. App. 2010) (per

curiam) (alteration in original) (internal citation and quotation marks omitted); see also Upsher v.

Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 455-56 (6th Cir. 2002) (holding WDCA’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).

       In addition, “[t]o be ‘known’ and ‘certain,’ an injury must spring directly from the

employee’s duties and the employee cannot have had the chance to exercise individual volition.”

Bagby, 865 N.W.2d at 63 (quoting House v. Johnson Controls, Inc., 248 F. App’x 645, 648 (6th

Cir. 2007)). An injury is not certain where “‘the employee makes a decision to act or not act in

the presence of a known risk,’ because the employer cannot know in advance what the

employee’s reaction will be and what steps he will take.” Id. at 63-64 (quoting House, 248 F.

App’x at 648); see also Herman, 680 N.W.2d at 74, 77 (“The facts demonstrate that decedent’s

death was the result of decedent’s momentary and tragic lapse in judgment, not the result of an

intentional act by defendant.”).




                                               -10-
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Gloria Barnes v. Sun Chemical Corporation

       Here, although there is some evidence that supervisors knew employees walked in the

restricted area, all supervisors and employees who were asked testified to knowing that there was

an alternate path they could take instead of walking through that area. (See Collins Dep., PID

566, p. 39; Brown Dep., PID 612, pp. 48-49; Pontius Dep., PID 599, pp. 117-18; Vander Berg

Dep., PID 692-93, pp. 46-50; Nuttall Dep., PID 272, pp. 31-32; Hendryx Dep., PID 785; Choura

Dep., PID 834, p. 36; Gesiakowski Dep., PID 860, pp. 21-24, 865, p. 42.) And there is no

evidence in the record that any supervisor instructed Barnes to walk in the restricted area, or that

employees were forced to walk there to do their jobs.4 Thus, this case is distinguishable from

several on which the Estate relies, where employees were injured while performing job duties as

they had been instructed or required. See Howard-Johnson v. V & S Detroit Galvanizing, LLC,

895 F. Supp. 2d 854, 863 (E.D. Mich. 2012); Fries v. Mavrick Metal Stamping, Inc., 777 N.W.2d

205, 708-09, 717 (Mich. Ct. App. 2009). Further, that some supervisors may have known

employees were “bypassing” the safety measures by walking through the forklift area does not

suffice to establish an intentional tort. See Smith v. Mich. Pallet, Inc., 872 N.W.2d 494 (Mich.

2015) (summarily reversing Court of Appeals determination that intentional-tort exception

applied in part because evidence showed that the defendants “clearly knew that the safety system

was being bypassed by the employees and that insufficient measures had been undertaken to

address [it]” Smith v. Mich. Pallet, Inc., No. 318702, 2015 WL 3477779, at *4 (Mich. Ct. App.

June 2, 2015), rev’d, 872 N.W.2d 494 (2015)).


       4
          Although Brown stated that she “had to” walk under the mezzanine for her job, and that
it was a shortcut to the break room, she also testified that she never walked in the forklift area
while the forklifts were operating. (See Brown Dep., PID 623, p. 92.) Moreover, Hendryx
testified on deposition that although there was a grind-and-mix and storage area underneath the
mezzanine, it could be accessed via the pedestrian pathway, and no testimony in the record
disputes that.


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Gloria Barnes v. Sun Chemical Corporation

       Further, the record does not support the Estate’s contention that Sun Chemical failed to

warn employees about a dangerous condition. The Estate argues Sun Chemical failed to warn

employees because the walkways were not marked, and even if they were, Vander Berg testified

on deposition that the lines designating them might have been concealed on the day of the

accident. However, every Sun Chemical employee asked about a pedestrian pathway in his or

her deposition testified to knowing of its existence.5 Moreover, Collins averred in an affidavit

that he discussed his incident with Barnes, including the circumstances surrounding it and where

it occurred; thus, Barnes would have been aware of the danger of walking in that area. Cf.

Bagby, 865 N.W.2d at 64 (concluding there was no continuously operative dangerous condition

where the plaintiff was electrocuted while changing the leads next to a bus because the defendant

“did not refrain from telling [the plaintiff] or other employees that the line was energized and

dangerous,” there was testimony that two persons reminded the plaintiff on different dates that

the lines were energized, and the plaintiff had received relevant training).6

       Relying on Johnson v. Detroit Edison Co., 795 N.W.2d at 170, the Estate argues that Sun

Chemical “knew of the inherent dangers involved that would cause injury, knew its employees

were taking their own insufficient precautions, as demonstrated by the knowledge of previous

injuries and employee complaints, and yet did nothing to remedy the problem.” (Barnes Br. 30


       5
           For the same reason, the record belies the Estate’s argument that testimony that the
walkways were not marked creates a dispute of fact about whether designated walkways existed
at the time of the incident.
         6
           To the extent Barnes argues Sun Chemical failed to warn employees because the
warning light was not working, this is similarly insufficient to establish applicability of the
intentional-tort exception. See Marion v. Wis. Elec. Power Co., 159 F. App’x 710, 715 (6th Cir.
2005) (rejecting the argument that starting a mill while warning system was not working would
suffice to create issue of fact whether intentional-tort exception applied, concluding that starting
the mill with the knowledge the system was faulty “might be negligent, perhaps even grossly so,
but it would not be intentional under Michigan law”).


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Gloria Barnes v. Sun Chemical Corporation

(quoting Johnson, 795. N.W.2d at 170).) In Johnson, the plaintiff power-plant operators suffered

burns when hot ash exploded on them as they were emptying bottom ash from a boiler. 795

N.W.2d at 165. Two of five ash gates on that boiler “had been broken for several months to a

year,” and there had been problems with some of the doors, causing ash to build up behind those

gates and resulting in “a blowout, or explosion, of ash” through the defective boiler doors. Id.

Employees regularly suffered minor burns from operating the boiler, one employee had suffered

an injury seven or eight years earlier and reported it to management, and two or three years prior

to that accident, another employee had been hospitalized due to a burn injury resulting from hot-

ash spew. Id. There was also testimony that employees had expressed concerns about the

broken gates to management, and that management acknowledged the danger. Id.

       Unlike in Johnson, however, employees at Sun Chemical were not frequently injured by

falling objects, nor does the record suggest that large objects fell frequently. Further, the

Johnson court found relevant that according to the plaintiff, there was “no reasonable and

effective means by which the employee [could] avoid the harm while still meeting his or her

obligation to properly perform the work demanded by the employer.” Id. at 171. Here, the

record does not support the Estate’s contention that employees were required to walk in the

forklift area to perform their duties, or that Barnes or other employees would be unable to do

their jobs without subjecting themselves to dangerous conditions.

       Finally, relying on Miller’s expert report, the Estate contends, “the subject incident was

certain to occur at some point in time without additional preventative and/or remedial measures.”

(Barnes Br. 38.) However, knowledge of a general danger or likelihood of injury is insufficient

to establish the intentional-tort exception. Bagby, 865 N.W.2d at 62. Nor are “conclusory

statements by experts” that merely “parrot[] the language of the legal test” sufficient to


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demonstrate certainty of injury. Travis, 551 N.W.2d at 143-44. Thus, although the record may

demonstrate that Sun Chemical had knowledge of conditions that could be generally dangerous,

there is no support in the record that the company had actual knowledge that an injury was

certain to occur within the meaning of the intentional tort exception as interpreted by the

Michigan Supreme Court. Because the Estate has failed to satisfy the certain-injury requirement,

we do not address the other two prongs of the exception.

                                              IV.

       For these reasons, we AFFIRM.




                                              -14-
