McNees v. Cedar Springs Stamping Co., a Div. of Lake Odessa Mach. Products, Inc.

• Decision Date: 16 July 1990
• Docket Number: Docket No. 118117
• Citation: 184 Mich.App. 101,457 N.W.2d 68
• Parties: Richard McNEES, Plaintiff-Appellant, v. CEDAR SPRINGS STAMPING COMPANY, A DIVISION OF LAKE ODESSA MACHINE PRODUCTS, INC., a Michigan corporation, Defendant-Appellee. 184 Mich.App. 101, 457 N.W.2d 68
• Court: Court of Appeal of Michigan — District of US

Page 68

457 N.W.2d 68

Richard McNEES, Plaintiff-Appellant, v. CEDAR SPRINGS STAMPING COMPANY, A DIVISION OF LAKE ODESSA MACHINE PRODUCTS, INC., a Michigan corporation Defendant-Appellee.

Docket No. 118117.

184 Mich.App. 101, 457 N.W.2d 68

Court of Appeals of Michigan.

Submitted March 6, 1990.

Decided June 4, 1990.

Released for Publication July 16, 1990.

[184 MICHAPP 102] Robert C. Timmons, Grand Rapids, for plaintiff-appellant.

Allaben, Massie, Vander Weyden & Timmer by Jonathan W. Willoughby, Grand Rapids, for defendant-appellee.

Before SHEPHERD, P.J., and SULLIVAN and NEFF, JJ.

SHEPHERD, Presiding Judge.

Plaintiff appeals from the orders of the trial court granting defendant's motion for summary disposition and denying plaintiff's motion to amend his complaint.

This case involves the intentional tort exception to the exclusive remedy provision of the Workers' Disability Compensation Act, M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131) (hereafter, Sec. 131). Plaintiff argues that the trial court erred in finding that the 1987 amendment of the act should be applied retroactively. In Schefsky v. The Evening News Ass'n, 169 [184 MICHAPP 103] Mich.App. 223, 227-228, 425 N.W.2d 768 (1988), this Court held that the amendment to Sec. 131 was retroactive, and, thus, the standard for determining intentional conduct is that set forth in Sec. 131 and not that announced in Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986). We agree with theSchefsky decision.

Plaintiff next asserts that the trial court erred in failing to allow him to amend his complaint to plead his case within the standards set by Sec. 131. Leave to amend is freely given in the absence of undue delay, bad faith or dilatory motive on the part of the amending party. Totsky v. Henry Ford Hosp., 169 Mich.App. 286, 290, 425 N.W.2d 531 (1988). The trial court may also refuse to permit an amendment where amendment would be futile. Formall, Inc. v. Community National Bank of Pontiac, 166 Mich.App. 772, 783, 421 N.W.2d 289 (1988). An amendment is futile where, ignoring the substantive merits of the claim, it is legally insufficient on its face. Id. The trial court found that the amendment would be futile.

Section 131 provides in part:

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.

Plaintiff contends that defendant had actual knowledge that an injury was certain to occur at a press machine because defendant had been warned that the foot pedal was malfunctioning. Plaintiff [184 MICHAPP 104] further contends that he was told by defendant to do work on the press which necessitated use of the foot pedal. He also contends that after the accident the employer destroyed all of the foot pedals in the shop.

Before analyzing the facts alleged in this case, we must first address the question of precisely what issues are matters of law for the court and what issues are questions of fact for the jury. We conclude that the issue whether the facts alleged by plaintiff are sufficient to constitute an intentional tort is a question of law for the court, while the issue whether the facts are as plaintiff alleges is a jury question. If the latter issue were for the court, all jury trials in this type of case would have been eliminated, and we find that this was not the intention of the Legislature.

In examining whether plaintiff's proposed amended pleadings alleged an intentional tort as a matter of law, we must determine the standard that is to be applied. Three cases give us guidance. The Court in Kachadoorian v. Great Lakes Steel Corp., 168 Mich.App. 273, 424 N.W.2d 34 (1988), lv. den. 432 Mich. 879 (1989), allowed a plaintiff to recover prior to the adoption of Sec. 131 under the following circumstances: a known danger (working under a vessel containing molten steel), a shop rule against working under the vessel, evidence of frequent overflow spills of molten steel, a specific order to plaintiff and all other affected employees that they must work under the vessel on pain of losing their jobs, and previous disciplinary action against employees who refused to do so. This, in our view, was so egregious that it would qualify as a violation of Sec. 131. Two other cases which were decided after the adoption of Sec. 131 are also instructive. In one case, it was held that the plaintiff had not alleged an intentional tort within the [184 MICHAPP 105] meaning of Sec. 131 where it was alleged that the defendant...