Bazinau v. Mackinac Island Carriage Tours
| Citation | 593 N.W.2d 219,233 Mich.App. 743 |
| Decision Date | 05 February 1999 |
| Docket Number | Docket No. 202787 |
| Parties | , Prod.Liab.Rep. (CCH) P 15,461 Walter Alex BAZINAU, Personal Representative of the Estate of William Bazinau, Deceased, Plaintiff-Appellee/Cross-Appellant, v. MACKINAC ISLAND CARRIAGE TOURS, Defendant-Appellant, and Bombardier Corporation, Defendant/Cross-Appellee. |
| Court | Court of Appeal of Michigan (US) |
Green, Weisse, Rettig, Rademacher & Clark, P.C. (by Richard D. Clark ), Escanaba, for the plaintiff.
Davidson, Breen & Doud, P.C. (by Craig A. Zanot ), Saginaw, for Mackinac Island Carriage Tours.
Zamplas, Johnson, Sopt & Cavanagh, P.C. (by Dennis Zamplas and Julie Lyons Kosovec ), Bloomfield Hills, for Bombardier Corporation.
Before: SAAD, P.J., and HOOD and GRIBBS, JJ.
In the course of his employment with Mackinac Island Carriage Tours (Carriage Tours), William Bazinau, plaintiff's decedent, hauled horse feed to Mackinac Island from St. Ignace by pulling cargo across the frozen Straits of Mackinac. Tragically, plaintiff's decedent drowned when the tracked vehicle he drove broke through the ice. Plaintiff, as personal representative of Bazinau's estate, seeks to hold decedent's employer, Carriage Tours, and the manufacturer of the tractor, Bombardier Corporation (Bombardier), liable for his death on respective theories of intentional tort and products liability/design defect.
Because Michigan's Worker's Disability Compensation Act (WDCA) 1 provides an employee's exclusive remedy for injuries resulting from workplace negligence, plaintiff cannot recover from Carriage Tours unless the alleged wrongful conduct was intentional. 2 Accordingly, Carriage Tours is entitled to summary disposition under MCR 2.116(C)(10) unless plaintiff demonstrates a question of fact on this issue: Did Carriage Tours intend to harm the decedent? Therefore, this suit--like many tort suits by employees against employers--raises the question of what constitutes an intentional tort under the exclusive remedy provision of the WDCA. Here, the trial court erroneously found evidence of an intentional tort and denied the employer's motion for summary disposition. We vacate that order and remand for entry of a judgment for Carriage Tours.
With respect to his products liability/design defect claim against Bombardier, plaintiff must show that the design of the tractor created an unreasonable risk of foreseeable injury. Plaintiff challenges the trial court's determination that the decedent's use of the vehicle to traverse a frozen body of water was not foreseeable. The trial court properly granted the manufacturer's motion for summary disposition. We affirm that order.
The decedent was an employee of Carriage Tours, which provides horse-drawn transportation services on Mackinac Island. In February 1994, his job duties included hauling horse feed to the island from St. Ignace. The decedent hauled the feed by driving a Bombardier tracked vehicle, a model SW-48 FA tractor, across the frozen Straits of Mackinac. The winter of 1994 was exceptionally cold, and the temperature had been below freezing for fifty-nine consecutive days before the decedent's accident. The decedent and James and William Chambers, officers of Carriage Tours, measured the thickness of the ice across the path for five or six days before the accident and found that the ice was more than eighteen inches thick. The Chambers brothers did not know what thickness of ice was required to support a tractor, but they believed eighteen inches was sufficient. In the previous two years, the Chambers brothers did not haul cargo across the ice because they did not believe the ice conditions were safe. William Chambers described the 1994 ice conditions, however, as the best he had ever seen. Given the uncertainty inherent in such an activity, the Chambers brothers assigned another employee, George Wellington, to drive alongside the decedent and assist him in case of an accident. For one week before February 15, the decedent and Wellington hauled the hay without incident.
According to plaintiff, the decedent had asked the Chambers brothers to have the roof of the tractor removed, so that he would not be trapped if the tractor broke through the ice. The cab of the tractor had no egress other than the side doors. The decedent sometimes tied the doors open to facilitate escape, but he did not do so on the day of the fatal accident. On February 15, while the decedent and Wellington were making the trip, Wellington was driving ahead of the decedent. Wellington looked back and realized that the tractor had gone through the ice. The decedent's body was never recovered, although rescue workers found the tractor. Apparently, the decedent had been able to escape the vehicle through a door, but he never made it to the surface. The plaintiff brought an action against both Carriage Tours and Bombardier.
In order to proceed with the action against Carriage Tours, plaintiff was required to show that the lawsuit was not barred by the exclusive remedy provision of the WDCA, i.e., that the alleged tort was intentional. Plaintiff claimed that Carriage Tours' officers, William and James Chambers, knew that vehicles were likely to crash through the ice and that a worker driving an enclosed vehicle would not be able to escape in time. In support of this argument, plaintiff offered evidence that the Chambers brothers were aware of previous accidents (none fatal) in Plaintiff presented testimony that the decedent and William and James Chambers discussed taking the top off the tractor and that this modification could have been easily made. He also presented testimony that the Chambers brothers knew that the thickness of the ice varied greatly and was not predictable. Plaintiff argued that this evidence established that Carriage Tours had actual knowledge that an injury was certain to occur and wilfully disregarded this knowledge, constituting an intentional tort under the WDCA. The trial court agreed and denied Carriage Tour's motion for summary disposition under MCR 2.116(C)(10) ().
which tracked vehicles, snowmobiles, and pickup trucks got stuck in the ice or crashed through. This included a 1991 incident in which James Chambers was driving an open-topped tracked vehicle that went through the ice. Although the tractor sank in three minutes, James escaped by standing up on the seat as the machine went down and floating until William threw him a rope.
Plaintiff also claimed that Bombardier, as manufacturer of the tractor, was liable under a design defect theory. Plaintiff alleged that it was foreseeable that someone would use the vehicle to travel across ice and that it was therefore unreasonably dangerous to design the vehicle without an escape hatch in the roof. Bombardier argued that it was not liable because Carriage Tours' use of the vehicle to travel across ice was not foreseeable. In support of this argument, Bombardier adduced evidence that the vehicle was designed for clearing snow off sidewalks or other snow-clearing jobs and that it was never intended to be driven across frozen lakes. James Chambers averred that he had no particular reason for selecting the SW-48 FA other than that it happened to be available. Plaintiff argued, however, that use to travel across frozen lakes was foreseeable, even if not intended, because Bombardier warned purchasers in a safety guide not to cross a frozen body of water "unless absolutely sure the ice is thick enough to support vehicle weight."
The trial court granted Bombardier's motion for summary disposition pursuant to MCR 2.116(C)(10), finding that the design of the vehicle was not unreasonably dangerous because it was unforeseeable that it would be used to cross a frozen body of water. The trial court subsequently denied plaintiff's motion for reconsideration, rejecting plaintiff's argument that the trial court applied the wrong legal standard.
We granted Carriage Tour's motion to bring an interlocutory appeal. Plaintiff has cross-appealed from the order of summary disposition for Bombardier.
Carriage Tours argues that it was entitled to a judgment as a matter of law because plaintiff's claim was barred by the exclusive remedy provision of the WDCA. We agree. 3
Early in the twentieth century, our Legislature implemented a no-fault compensation system as the exclusive remedy for workers injured on the job. 4 In exchange for the no-fault remedy, employees gave up their right to bring tort actions against their employees for certain occupational injuries. The question remained, however, whether the exclusive remedy provision also barred actions for intentional torts. The panels of this Court issued conflicting opinions regarding this controversy. See Genson v. Bofors-Lakeway, Inc., 122 Mich.App. 470, 332 N.W.2d 507 (1983) (), and Burgess v. Holloway Constr Co., 123 Mich.App. 505, 332 N.W.2d 584 (1983) ().
In 1987, our Legislature amended the WDCA to provide an intentional tort exception to the exclusive remedy provision. The amended statute, M.C.L. § 418.131(1); MSA 17.237(131)(1), provides:
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...
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