Gray v. Morley

596 N.W.2d 922, 460 Mich. 738

• Court: Michigan Supreme Court
• Decided: July 27, 1999
• Docket: 111205, Calendar No. 6
• Status: Published

Opinions

AFTER REMAND

Brickley, J.

The question presented is whether the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131(1); MSA 17.237(131)(1), precludes plaintiff from maintaining a cause of action against defendant employer arising out of injuries suffered by plaintiff on the job. We find that plaintiff has not presented the requisite proof that defendant specifically intended to injure plaintiff, and affirm the trial court’s grant of summary disposition in favor of defendant.

i

Plaintiff Scott Gray began working for defendant Kevin Charles Morley, a sole proprietor in the concrete business, in the summer of 1991. On the morning of July 15, 1991, Morley picked up plaintiff for work. Plaintiff, Morley, and two other employees worked through the morning, and then adjourned to a local tavern for lunch, where they consumed approximately four pitchers of beer. Plaintiff testified that Morley was angry when they returned to the job site and left “cussing and bitching.” Plaintiff and another employee, Rex Carter, completed their work and waited.

When Morley returned, Carter got in the front and plaintiff jumped in the back open bed of Morley’s truck. A short time later, plaintiff was thrown from the bed of the truck to the pavement; the impact caused plaintiff to suffer a basilar skull fracture and closed head injuries.

Plaintiff filed the instant suit in Kalamazoo Circuit Court, alleging, inter alia, that defendant Morley committed an intentional tort by driving erratically with the purpose of injuring plaintiff. Plaintiff stated in his deposition that he did not recall anything unusual about Morley’s driving in the moments preceding his injury, other than hearing the squeal of tires and a “sudden jerk.” Plaintiff stated that he had previously ridden in the back of Morley’s truck between six to eight times, and that on most of those occasions, Morley engaged in erratic driving, “swerving around and hitting the brakes and stuff like that, [and would] watch us roll around in the back of the truck, stuff like that.” According to plaintiff, this conduct did not occur “every time, but the majority of the time. It was like fun for him, a game or something.” At one point, plaintiff told Morley that he did not like being thrown around in the back of the truck. Plaintiff could not recall exactly when he said this, and conceded that he was not injured during the previous episodes.

Although one witness asserted that she saw two children and a dog in the street moments before plaintiff’s injury, Morley denies seeing any children or dogs. Morley claimed that he was driving no more than “[flour to six miles an hour,” but a Kalamazoo Public Safety laboratory technician testified about yaw marks twenty feet long and suggested that the pickup was traveling between twenty-five and thirty miles an hour.¹

Morley moved for summary disposition under MCR 2.116(C)(10), contending that plaintiffs exclusive remedy was under the WDCA, MCL 418.131(1); MSA 17.237(131)(1). Following discovery, the trial court granted defendant’s motion, and the Court of Appeals affirmed in a peremptory order. We remanded for reconsideration in light of our decision in Travis v Dreis & Krump Mfg Co, 453 Mich 149; 551 NW2d 132 (1996). On remand, the Court of Appeals again affirmed the summary disposition in an unpublished memorandum opinion. We granted leave to appeal and now affirm.

n

As presented by plaintiff, the conduct of defendant Morley that is at issue in this case was indefensible. However, worker’s compensation is the exclusive remedy for all on-the-job injuries, except for injuries intentionally inflicted by the employer:

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); MSA 17.237(131)(l).[²]

The foregoing makes clear that intentional conduct by the employer is the requisite standard triggering the exception to the exclusivity provision. In Travis, supra, this Court addressed the statutory standard for determining whether an employee’s injury was intentional for the purposes of escaping the exclusive remedy provided under the WDCA. There, we rejected plaintiff’s argument that the Restatement’s “substantial certainty” test should control, instead holding that the express language of § 131(1), along with the underlying purposes of the WDCA, require that the employee show a specific intent to injure on the part of the employer. Id. at 172. We also held that conclusory statements by experts are insufficient to allege certainty of injury, and that the laws of probability (i.e., setting forth the odds that something will occur) play no part in determining the certainty of injury. Id. at 174. Finally, we concluded that the issue whether the facts alleged by plaintiff are sufficient to constitute an intentional tort is a question of law for the trial court, while the issue whether the facts are as plaintiff alleges is a jury question. Id. at 188.³

In contending that defendant Morley committed an intentional tort by engaging in assaultive behavior, plaintiff principally relies on his testimony that Morley previously drove in an erratic manner for the purpose of scaring plaintiff. Although he concedes that he suffered no injuries from Morley’s prior misconduct, plaintiff maintains that such behavior furnishes ample proof that Morley’s driving on June 15 was “absolutely certain” to result in injury.⁴ Plaintiff also directs our attention to defense counsel’s concession before the trial court that Morley’s swerving constituted a “deliberate” act; plaintiff asserts that such an admission conclusively demonstrates that Morley drove with an intent to scare and to cause plaintiff to be thrown about the bed of the truck. In light of their conclusoiy nature, we reject both propositions raised by plaintiff.

Accepting the facts as pleaded by plaintiff as true, we find that this case does not come within the intentional tort exception to worker’s compensation as a matter of law. Plaintiff has not brought to our attention any evidence that Morley “specifically intended” to injure plaintiff, nor has he demonstrated that Morley had “actual knowledge that an injury was certain to occur.” MCL 418.131(1); MSA 17.237(131)(1).

Although plaintiff’s allegations suggest conduct on the part of defendant that was reckless or deliberately indifferent, such allegations sound in gross negligence and are therefore insufficient to constitute an intentional tort within the meaning of the WDCA. While we do find the defendant’s conduct, as alleged by plaintiff, to be reprehensible, § 131(1) expressly recognizes a distinct difference between gross or criminal negligence and an actual intent to injure.⁵ As our decision in Travis made clear, § 131(1) requires that plaintiff present evidence that the employer specifically intended an injury, or, in lieu of such evidence, sufficient proof that the employer had actual knowledge that injury was certain to occur.

For the foregoing reasons, we affirm the judgments of the trial court and the Court of Appeals.

Weaver, C.J., and Taylor, Corrigan, and Young, JJ., concurred with Brickley, J.

1 Although Morley stated that he left the scene to summon an ambulance, his account differs from police reports. Police dispatched to the scene said Morley and another individual drove by the scene later, and an officer had to activate his overhead lights before Morley’s vehicle stopped. Morley, whose blood alcohol level was 0.168 percent two hours after the incident, was ultimately convicted of Oüil

2 Through 1987 PA 28, the Legislature amended the exclusive remedy provision of the wdca so as to specifically provide for an intentional tort exception. In doing so, it rejected the “substantially certain” test previously announced by this Court in Beauchamp v Dow Chemical Co, 427 Mich 1; 398 NW2d 882 (1986), and adopted the more rigorous "true intentional tort” standard as the proper test for determining the presence of an intentional tort. See, e.g., 6 Larson, Workers’ Compensation Law, § 68.15(e) at 13-110 (observing “[t]he Michigan Legislature reacted to Beauchamp with impressive swiftness”).

3 Although our decision in Travis generated separate opinions, a majority of the Court agreed that the Legislature intended that actions falling within the intentional tort exception encompassed only those in which an employer acts with a specific purpose to injure an employee. Id. at 191-192.

The dissenting opinion misapprehends the express directive contained in § 131(1): it is the trial court, and not the factfinder, who makes the threshold determination about the existence of an intentional tort. Given plaintiff’s failure to provide sufficient evidence of defendant’s specific intent on the date in question, there is no role to be fulfilled by the factfinder.

4 Morley does not dispute that an assault is a true intentional tort which would satisfy the intentional tort exception; rather, he asserts that no assault was committed, and emphasizes that driving erratically does not, on its own, establish an intentional tort within the meaning of subsection 131(1).

5 Such a distinction is also recognized by § 21 of the Restatement of Torts, 2d, which is relied on by the dissenting opinion as support for its position that plaintiff has alleged facts sufficient to satisfy the tort of assault. Specifically, § 21 provides in its entirety:

(1) An actor is subject to liability to another for assault if

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

(b) the other is thereby put in such imminent apprehension.

(2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm. [1 Restatement Torts, 2d, § 21, p 37 (emphasis supplied).]

In this case, even assuming that plaintiff has sufficiently alleged an injury consisting of the apprehension of a harmful or offensive contact, plaintiff’s allegation that Morley had previously swerved the truck deliberately so as to watch plaintiff “roll around” establishes nothing more than that such apprehension was caused by an act that involved an unreasonable risk of causing such apprehension and was therefore negligent or reckless. In other words, contrary to the dissent’s position, plaintiff has presented no evidence that any apprehension suffered by him was caused by an act carried out by Morley with the intent to cause such apprehension.