Gray v. Morley

• Decision Date: 27 July 1999
• Docket Number: Docket No. 111205, Calendar No. 6.
• Citation: 596 N.W.2d 922,460 Mich. 738
• Parties: Scott GRAY, Plaintiff-Appellant, v. Kevin Charles MORLEY, Defendant-Appellee.
• Court: Michigan Supreme Court

596 N.W.2d 922

460 Mich. 738

Scott GRAY, Plaintiff-Appellant, v. Kevin Charles MORLEY, Defendant-Appellee.

Docket No. 111205, Calendar No. 6.

Supreme Court of Michigan.

Argued April 6, 1999.

Decided July 27, 1999.

Garold A. Goidosik, Kalamazoo, for plaintiff-appellant.

James, Dark & Brill (by David M. Dark and Brett A. Howell), Kalamazoo, for defendant-appellee.

Opinion

BRICKLEY, J.

The question presented is whether the exclusive remedy provision of the Worker's Disability Compensation Act, M.C.L. § 418.131(1); M.S.A. § 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 "[f]our 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 plaintiff's exclusive remedy was under the WDCA, M.C.L. § 418.131(1); M.S.A. § 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 N.W.2d 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.

II

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. [M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1).][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, 551 N.W.2d 132. 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, 551 N.W.2d 132. 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, 551 N.W.2d 132.³

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 conclusory 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." M.C.L. § 418.131(1); M.S.A. § 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 Court of Appeals.

WEAVER, C.J., and TAYLOR, CORRIGAN, and YOUNG, JJ., concurred BRICKLEY, J.

MARILYN J. KELLY, J. (dissenting).

I disagree with the majority's conclusion that the plaintiff failed to allege that the defendant intended an injury. I would hold that plaintiff's allegations constitute an intentional tort as a matter of law, falling under the exception to the exclusive remedy provision of the Worker's Disability Compensation Act. M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1). The injury under the tort is the apprehension of an immediate battery. This injury satisfies the requirements of the act. I would reverse the judgment of the Court of Appeals and remand the case for trial. Genuine issues of material fact exist concerning defendant's intent at the time he allegedly swerved his pickup truck.

The intentional tort exception to the exclusive remedy provision states:

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. [M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1) (emphasis added).]

In Travis v. Dreis & Krump Mfg. Co.,⁶ this Court held that the statutory phrase "specifically intended an injury" means that "the...