Kachadoorian v. Great Lakes Steel Corp.

424 N.W.2d 34, 168 Mich. App. 273

• Court: Michigan Court of Appeals
• Decided: May 2, 1988
• Docket: Docket 93802
• Status: Published

Opinions

Shepherd, P.J.,

On April 3, 1986, plaintiff filed a wrongful death complaint against her late husband’s employer, defendant Great Lakes Steel Corporation. Plaintiff’s husband died as a result of extensive burns he received when a two-hundred-fifty-ton vessel containing molten steel overflowed while the decedent was working underneath the vessel while the steel was undergoing a process called "blowing.” Defendant moved for summary disposition under MCR 2.116(C)(4), (7) and (8). The court granted the motion, concluding that plaintiff had failed to state a cause of .action.

In reviewing a grant of summary disposition under MCR 2.116(C)(8), this Court is obliged to accept as true all well-pled facts and to determine whether plaintiff’s claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Bolton v Jones, 156 Mich App 642; 401 NW2d 894 (1986).

Generally, an employee’s work-related injury claim against his employer is governed by the exclusivity provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131). Michigan Courts have allowed for an exception in the case of intentional torts. Our Supreme Court has recently affirmed the exception and addressed the meaning of "intentional” for purposes of determining whether an employee may maintain a tort suit against his employer despite the exclusivity provision. See Beauchamp v Dow Chemical Co, 427 Mich 1; 398 NW2d 882 (1986). In Beauchamp the Court adopted the "substantial certainty” test, defined the following way:

The "substantial certainty” line of cases defines intentional tort more broadly. An intentional tort "is not . . . limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.” It does not matter whether the employer wishes the injury would not occur or does not care whether it occurs. If the injury is substantially certain to occur as a consequence of actions the employer intended, the employer is deemed to have intended the injuries as well. [Beauchamp at 21-22.]

The Court also noted the chief problem with the substantial certainty test:

Selecting the appropriate intentional tort test is difficult. The problem with the substantial certainty test is that it is difficult to draw the line between substantia! certainty and substantial risk. In applying the substantial certainty test, some courts have confused intentional, reckless, and even negligent misconduct, and therefore blurred the line between intentional and accidental injuries. The true intentional tort standard keeps the distinction clear. [Beauchamp at 24-25.]

However, the Court found this test better than the true intentional tort test, i.e., the employer intended the specific injury. The Court indicated the chief problem with that test:

The problem with the true intentional tort test appears to be that it allows employers to injure and even kill employees and suffer only workers’ compensation damages so long as the employer did not specifically intend to hurt the worker. The facts in the Film Recovery Systems case are a good example. Prohibiting a civil action in such a case "would allow a corporation to 'cost-out’ an investment decision to kill workers.” Blankenship v Cincinnati Milacron Chemicals, 69 Ohio St 2d 608, 617; 433 NE2d 572 (1982) (Celebrezze, J., concurring). [Beauchamp at 25.]

The Court cited two cases in which the facts were examples of what would constitute substantial certainty. In Serna v Statewide Contractors, 6 Ariz App 12; 429 P2d 504 (1967), two men were killed when a ditch caved in and buried them alive. In the five months preceding the disaster, inspectors had warned that the sides of the ditches were not sloped properly, the sides were sandy, more shoring was needed, and escape ladders should be placed every twenty-five feet. During that time a cave-in had occurred, burying one of the decedents up to his waist. All warnings were ignored.

In a recent criminal prosecution case, People v Film Recovery Systems, decided in Illinois (and discussed in Beauchamp, 427 Mich 23), frs was in the business of recovering silver from film negatives. This was done by placing the negatives into vats of cyanide. Hydrogen cyanide gas bubbled up from the vats and there was inadequate ventilation in the plant. The employer knew about the dangers. The labels on the chemicals being used contained adequate warnings; as a result, the employer hired only employees who could not speak or read English. The workers complained about the fumes daily. In 1981, an inspector had warned that the operation had outgrown the plant. The employer’s response was to move the executive offices while tripling the size of the operation. Eventually one worker died and several others were seriously injured because of hydrogen cyanide poison. The corporate officers were convicted of involuntary manslaughter.

In the instant case, plaintiffs complaint has alleged the following: plaintiffs decedent was directed by his foreman to drive his slag-moving machine under the vessel containing molten steel during the "blowing” process; such an order was in violation of defendant’s own job-safety analysis; the blowing process frequently caused overflow spills of molten steel; and defendant had disciplined employees for refusing to drive under the vessel during the blowing process, thereby forcing the employee to choose between the substantial certainty of injury and losing his job.

Accepting these statements as true, as we must in reviewing a motion under MCR 2.116(C)(8), we believe plaintiff has stated a cause of action under Beauchamp. We note particularly the allegations that the act was in violation of defendant’s safety analysis and that spills were’ frequent. These aliegations resemble the sort of safety warnings the employers intentionally ignored in Serna and Film Recovery Systems. We therefore reverse the court’s dismissal of plaintiffs complaint.

We affirm the trial court’s dismissal of Count iv, the breach of contract claim, which is merely the tort claim restated in the form of a breach of contract claim. Since the court did not address plaintiffs Count v, claims of negligence and breach of warranty against the manufacturer of the molten steel vessel, we do not address those issues.

Affirmed in part, reversed in part and remanded for further proceedings.

M. J. Kelly, J., concurred.