Benson v. Callahan Mining Corp.

479 N.W.2d 12, 191 Mich. App. 443, 1991 Mich. App. LEXIS 438

• Court: Michigan Court of Appeals
• Decided: October 8, 1991
• Docket: Docket 128887
• Status: Published

Opinions

Per Curiam.

Defendant appeals by leave granted from an order of the circuit court denying defendant’s motion for summary disposition of plaintiffs claim under the intentional-tort exception of the Workers’ Disability Compensation Act. We reverse.

Plaintiff was injured on June 13, 1987, when a portion of the roof of a tunnel in which he was working collapsed on him. At the time of the accident, plaintiff’s job was assistant roof-bolter. A roof-bolter works with a partner to secure the roofs of tunnels. Roof-bolters attach cyclone fencing, also called roof plates, to the ceilings of tunnels with long bolts. The purpose of the cyclone fencing is to protect persons in the tunnel from loose rock that may fall from the ceiling.

Kevin Bureau, plaintiff’s partner on the day of the accident, testified at deposition that the drilling that preceded the installation of the bolts was accomplished with a "jackleg,” a pneumatic drill that was equipped with a pneumatic leg, apparently intended to rest on the floor, that extended upward as holes were drilled into the ceiling. After the holes were drilled, rockbolts would be placed in the holes and the drill bit in the jackleg would be replaced with a driver. The jackleg would then be used to force the bolt into the hole where it would be secured. On the day he was injured, plaintiff and Bureau were at the end of a tunnel and were working to bolt up the rest of the tunnel. Plaintiff and Bureau had attached one side of a section of cyclone fence along the length of the tunnel’s ceiling. Bureau had drilled a hole into the side of the tunnel and plaintiff attempted to push a bolt into the hole. Plaintiff was not able to insert the bolt far enough into the hole to allow the jackleg to be placed underneath the bolt and drive it up into position. Plaintiff used a sledgehammer to drive the bolt further into the hole, then turned away from the unsecured portion of the ceiling to help Bureau with the jackleg. At that moment, a portion of the ceiling or the side of the tunnel that the two were attempting to secure fell onto plaintiff, severely injuring him.

Bureau testified that the ramp (a work platform on the floor of a tunnel constructed from broken rock) on which the two were working was in poor condition; that the ramp was not level and that many large boulders were present, making for difficult footing; and that he requested a loader to use to reramp the pile, but was told to work off the ramp as it existed.

Bureau further testified that a jackleg is basically a drill that is used for drilling and blasting smaller tunnels, and also used to rockbolt in certain circumstances; that other machines were designed specifically for rockbolting that allowed the operator to drill holes and install bolts from a safe distance away from any danger posed by loose rock, but defendant did not own any such machines; that the operation could have been made safer had defendant ordered the tunnel’s ceiling bolted as the tunnel was being developed, rather than securing the ceiling six months later, during which time the tunnel was exposed to air and water; that tunnels should have been rockbolted as they were being developed because of the amount of blasting that was being done; and that he had filed suit against defendant after he was fired for refusing to work under unsafe conditions.

A report written by an official of the Mine Safety and Health Administration described the work site where the accident occurred as consisting of ragged, broken material on a steep slope. The report stated that the accident occurred when plaintiff "moved between the drill and the heading and under unbolted roof.” The report also cited as a contributing factor the necessity for plaintiff to assume the required position in rockbolting with the insecure footing under the bolted area. Defendant was issued a citation for the violation of a regulation, though it is not clear what conduct the regulation proscribed.

The issue presented is whether this case comes within the so-called intentional-tort exception to the exclusive-remedy provision of the Workers’ Compensation Disability Act. Under MCL 418.131; MSA 17.237(131), workers’ compensation is the exclusive remedy against an employer, unless an employee is injured as a result of an intentional tort. An intentional tort exists under the terms of the statute where 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 an injury if the employer had actual knowledge that an injury was certain to occur and wilfully disregarded that knowledge. Whether an act is an intentional tort is a question of law for the court. Id.

In denying defendant’s motion for summary disposition, the court concluded that plaintiff could not establish that defendant had actual knowledge that an injury was certain to occur on the exact date and location at which plaintiff was injured, but did conclude that defendant had actual knowledge that an injury was certain to occur at some point during the rockbolting process. The court further cited defendant’s refusal to supply equipment to improve the ramp and the failure to provide a roof-bolter machine with adequate protection as establishing that defendant had wilfully disregarded the knowledge of the certainty that an injury would occur during the roof-bolting process.

We conclude that the intentional-tort exception to the exclusive-remedy provision of the Worker’s Disability Compensation Act is inapplicable in the case at bar. As discussed in the concurring opinion, we consider this case to be distinguishable from Adams v Shepherd Products, US, Inc, 187 Mich App 695; 468 NW2d 332 (1991). However, we note that we do not agree with Adams, and follow it only because we must under Administrative Order No. 1990-6, 436 Mich lxxxiv. We believe Phillips v Ludvanwall, Inc, 190 Mich App 136; 475 NW2d 423 (1991). Tolbert v US Truck Co, 179 Mich App 471, 474-475; 446 NW2d 484 (1989), Pawlak v Redox Corp, 182 Mich App 758; 453 NW2d 304 (1990), and Bowden v McAndrew, 173 Mich App 591; 434 NW2d 195 (1988), illustrate correct application of the statute.

Reversed and remanded with instructions to the trial court to enter an order of summary disposition in favor of defendant. We do not retain jurisdiction. Defendant may tax costs.