Kissinger v. Mannor

• Decision Date: 20 September 1979
• Docket Number: Docket No. 78-5129
• Citation: 92 Mich.App. 572,285 N.W.2d 214
• Parties: Raymond KISSINGER, Plaintiff-Appellant, v. Ronald MANNOR, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 214

285 N.W.2d 214

92 Mich.App. 572

Raymond KISSINGER, Plaintiff-Appellant, v. Ronald MANNOR, Defendant-Appellee.

Docket No. 78-5129.

Court of Appeals of Michigan.

Sept. 20, 1979.

Released for Publication Nov. 29, 1979.

Roger A. Rapaport, Lansing, for plaintiff-appellant.

Gregory James Guggemos, Lansing, for defendant-appellee.

Before ALLEN, P. J., and T. M. BURNS and HOLBROOK ^*, JJ.

T. M. BURNS, Judge.

Plaintiff appeals of right a November 17, 1978, lower court order granting defendant's motion for accelerated judgment. We reverse.

On August 21, 1978, plaintiff filed his complaint in this action and alleged that on May 18, 1978, he was an employee of the Oldsmobile Division of the General Motors Corporation in Lansing. His foreman on that date was defendant Ronald Mannor. Sometime during the course of his work that day, plaintiff asked defendant to assign a temporary replacement to fill his position in order that plaintiff would be able to use the plant's toilet facilities. Defendant, however, sent no replacement worker and after 35 to 50 minutes plaintiff evacuated his bowels in his clothing.

Following his bowel movement, plaintiff requested permission to leave the plant in order to change his clothing. However, his request was denied by defendant who instructed plaintiff to return to his work station. Soon afterward, a replacement did arrive at his work station and plaintiff went to defendant's office. There, plaintiff allegedly was berated by defendant for requesting relief in order to use the toilet facilities at the factory. After a brief argument, defendant gave plaintiff permission to go home and change his clothes. Subsequently, defendant told approximately 40 of plaintiff's co-employees of the incident and informed them that plaintiff had "crapped his pants".

In his complaint, plaintiff pleaded a cause of action for intentional infliction of mental stress and requested damages of $10,000. Plaintiff alleged that the intentional actions of defendant held him up to ridicule, public scorn and embarrassment before his co-employees and has caused him to suffer permanent severe emotional and psychological distress.

Defendant filed a motion for accelerated judgment and argued that plaintiff was precluded from recovering under a common-law tort action against defendant by the exclusive remedy provision of the Worker's Disability Compensation Act. M.C.L. § 418.131; M.S.A. § 17.237(131). The lower court agreed and granted defendant's motion. Plaintiff appeals and we reverse.

The right to the benefits as provided in the Worker's Disability Compensation Act are an employee's exclusive remedy against an employer "where the conditions of liability under this act exist". Id. The conditions of liability attach where an employee receives "a personal injury arising out of and in the course of his employment * * * ". M.C.L. § 418.301; M.S.A. § 17.237(301).

The Act provides a remedy for both physical and mental injuries that are suffered on account of employment. Diezel v. Difco Laboratories, Inc. (After Remand ), 403 Mich. 1, 268 N.W.2d 1 (1978), Milton v. Oakland County, 50 Mich.App. 279, 213 N.W.2d 250 (1973). Neither physical injury or contact nor physical consequences are required to entitle an employee to benefits under the act. Carter v. General Motors Corp., 361 Mich. 577, 106 N.W.2d 105 (1960).

In Moore v. Federal Department Stores, Inc., 33 Mich.App. 556, 190 N.W.2d 262; 46 A.L.R.3d 1275 (1971), Lv. den., 385 Mich. 784 (1971), a plaintiff-employee brought a common-law action to recover damages from her employer for false imprisonment. The plaintiff had been accused by defendant of stealing and was detained by store officials. Upon investigation, the defendant's accusation of dishonesty proved groundless. The lower court granted the defendant's motion for summary judgment holding that the provisions of the Worker's Disability Compensation Act provided the plaintiff's exclusive remedy. On appeal, this Court reversed holding that the plaintiff's injury consisted of humiliation, embarrassment and deprivation of personal liberty that was not compensable under the act. Because the act did not provide recovery for the types of injuries suffered by the plaintiff, the plaintiff was entitled to bring a common-law tort action against her employer notwithstanding the exclusive remedy provision of the act.

Similarly, in Milton v. Oakland County, supra, this Court held that the exclusive remedy provision did not bar an action brought on account of an employer's alleged wrongful discharge of an employee and failure to comply with terms in an employment contract. Milton reiterated the holding of Moore that where an employee's injury is not compensable under the act, a common-law tort action may be maintained against the employer.

In Stimson v. Michigan Bell Telephone Co., 77 Mich.App. 361, 258 N.W.2d 227 (1977), it was held that an employee's action for sexual discrimination was not barred by the exclusive remedy provision of the act. Although certain damages sought by the plaintiff in Stimson were found to be barred because they culminated in a disabling condition for which compensation was...