Palazzola v. Karmazin Products Corp.

• Decision Date: 22 April 1997
• Docket Number: Docket No. 180033
• Citation: 565 N.W.2d 868,223 Mich.App. 141
• Parties: Joseph V. PALAZZOLA, personal representative for the Estate of Christopher A. Palazzola, Plaintiff-Appellant, v. KARMAZIN PRODUCTS CORPORATION, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 868

565 N.W.2d 868

223 Mich.App. 141

Joseph V. PALAZZOLA, personal representative for the Estate of Christopher A. Palazzola, Plaintiff-Appellant, v. KARMAZIN PRODUCTS CORPORATION, Defendant-Appellee.

Docket No. 180033.

Court of Appeals of Michigan.

Submitted April 3, 1996, at Detroit.

Decided April 22, 1997, at 9:00 a.m.

Released for Publication July 16, 1997.

Lopatin, Miller, Freedman, Bluestone, Herskovic & Heilmann by Richard E. Shaw, Detroit, for Plaintiff-Appellant.

Sommers, Schwartz, Silver & Schwartz, P.C. by C.F. Boyle, Jr., and Patrick Burkett, Southfield, for Karmazin Products Corporation.

Before YOUNG, P.J., and HOLBROOK and J.R. ERNST ^*, JJ.

YOUNG, Presiding Judge.

This case involves the tragic work-related death of Christopher Palazzola on July 16, 1992. Plaintiff, as personal representative of the estate of Christopher Palazzola, brought suit against defendant Karmazin Products Corporation, Palazzola's employer, seeking to apply the intentional tort exception to the exclusive remedy provided in the Worker's Disability Compensation Act (the act), M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1). ¹ The trial court granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(10), reasoning that plaintiff had not raised a genuine factual issue regarding defendant's intent to injure and therefore the intentional tort exception to the exclusive remedy provided in the act did not apply. Plaintiff appeals as of right from this ruling. We affirm.

I

Defendant is in the business of manufacturing radiators. Trichloroethylene (TCE) is an agent used in a degreasing system that cleans radiator parts. As plaintiff acknowledges, in its liquid state, TCE apparently can be handled with relative safety and defendant's employees had submerged their hands in liquid TCE without adverse effect. However, TCE evaporates readily at room temperature and, in its gaseous state, can be harmful or fatal if ingested or inhaled. Defendant's degreaser operation is served by a cooling system consisting of a water holding tank located below ground level that measures four feet wide by eight feet long by six and a half feet high.

On July 16, 1992, defendant had temporarily suspended its operations for summer maintenance. The plant's manager of manufacturing and engineering, Kenneth McIver, directed that the water holding tank be drained and refilled with clean water. Maintenance crew leader, Joe Kucmienski, led a team of maintenance workers, including Christopher Palazzola, to accomplish this task.

The crew drained the tank and, upon doing so, discovered sludge in the bottom of the tank. Kucmienski testified that he had not expected to find sludge and that he decided to remove the sludge before refilling the tank because this seemed the "logical" thing to do. ² He directed a crew member, Michael Czerwonka, to begin this process. Czerwonka entered the tank and filled three buckets with sludge, which buckets had to be pulled out of the tank by rope. Following this, Kucmienski directed Palazzola to relieve Czerwonka. Czerwonka got out of the tank and Palazzola entered it.

Czerwonka testified that, upon getting out, he did not immediately express to anyone, including Kucmienski, any physical distress as a result of being in the tank. Czerwonka further testified in his deposition that, before he entered the tank, he could smell the fumes but "it wasn't so bad" and that the fumes "weren't that strong at all." He also testified that, when he got out of the tank, he realized that he was "nauseous and extremely light-headed," but did not disclose this fact to anyone for a minute or two. At that point, Czerwonka told co-worker Dale Burzycki, "[t]hose fumes are strong now." Burzycki immediately informed Kucmienski who, in turn, ordered Palazzola out of the tank. Czerwonka testified that, at the time he informed Burzycki about the strength of the fumes, Palazzola had been in the tank for a "minute or two at tops."

Unfortunately, by that point, Palazzola had become overwhelmed and was collapsing in the tank. Kucmienski entered the tank in an attempt to rescue Palazzola and he too was overcome. An effort to rescue both men ensued, wherein fire and police personnel were contacted. Kucmienski and Palazzola were not removed from the tank for another 1 1/2 hours. Although Kucmienski survived, Palazzola died as a result of his exposure.

II

On appeal, plaintiff argues that defendant's knowledge of the danger was foreseeable and that its decision to expose its employees to the TCE fumes in the holding tank falls within the intentional tort exception of the act. After plaintiff appealed to this Court, our Supreme Court issued Travis v. Dreis & Krump Mfg. Co., 453 Mich. 149, 551 N.W.2d 132 (1996), construing the act's intentional tort exception and outlining the proofs necessary to qualify under the exception.

Although the determination whether the facts alleged by the plaintiff are true is one for the trier of fact, it is a question for the court to determine whether the facts alleged are sufficient to constitute an intentional tort within the meaning of the act. Zuke v. Fritz Enterprises, Inc., 202 Mich.App. 572, 576, 509 N.W.2d 787 (1993). Therefore, on the basis of the Supreme Court's construction of the intentional tort exception in Travis, supra, we must determine whether plaintiff has alleged sufficient facts to bring his action within the intentional tort exception to the exclusive remedy of the act.

III

The disability benefits provided under the act are the exclusive remedy for work-related injuries. M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1). In 1986, although the statutory language contained no exception to this exclusive remedy, the Supreme Court in Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986), recognized an intentional tort exception, reasoning that while accidental injuries were a matter of course in industry, intentional injuries were not. Id. at 16, 398 N.W.2d 882. Beauchamp further held that an employer could be held liable for an intentional tort if injury was "substantially certain" to occur from the employer's actions. Id. at 21-22, 398 N.W.2d 882.

Shortly after Beauchamp, the Legislature enacted the "intentional tort exception" to the exclusive remedy of the act:

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

As recognized in Travis, supra, this provision represents the Legislature's attempt to correct Beauchamp's interpretation that the exclusive remedy of the act did not apply when injury was "substantially certain" to result from the employer's actions. Travis, supra, at 164-165, 551 N.W.2d 132. In separate opinions, a majority of the Supreme Court's justices agreed in Travis that the Legislature intended that actions falling within the intentional tort exception encompassed only those in which an employer acts with a specific purpose to injure an employee. ³ The Court's core holding concerning the construction of this provision was as follows:

If we read both sentences of the intentional tort exception together, it becomes evident that an employer must have made a conscious choice to injure an employee and have deliberately acted or failed to act in furtherance of that intent. The second sentence then allows the employer's intent to injure to be inferred if the employer had actual knowledge that an injury was certain to occur, under circumstances indicating deliberate disregard of that knowledge. [Id. at 180, 551 N.W.2d 132.]

In construing this provision, the lead opinion parsed the various critical phrases in the exception, articulating the elements of proof necessary to establish an employer's intent to injure through either direct or indirect evidence. To paraphrase the Travis Court at 169-171, 551 N.W.2d 132, a plaintiff must establish the following elements:

(1) "Deliberate act"--This includes both acts and omissions and encompasses situations in which the employer "consciously fails to act."

(2) "Specifically intended an injury"--An employer must have had a conscious purpose to bring about specific consequences. When an employer is a corporation, a particular employee must possess the requisite state of mind in order to prove an intentional tort. ⁴

Recognizing that direct evidence of intent is often unavailable, the Travis Court explained that the second sentence of the exception provides an alternative means of proving an employer's intent to injure. Id. at 172-173, 551 N.W.2d 132. Plaintiff here relies upon this alternative to establish the employer's intent. To paraphrase the Travis Court at 173-174, 176, 178-179, a plaintiff alternatively can prove intent to injure by establishing the following elements:

(1) "Actual Knowledge"--This element of proof precludes liability based upon implied, imputed, or constructive knowledge. Actual knowledge for a corporate employer can be established by showing that a supervisory or managerial employee had "actual knowledge that an injury would follow from what the employer deliberately did or did not do."

(2) "Injury certain to occur"--This element establishes an "extremely high standard" of proof that cannot be met by reliance on the laws of probability, the mere prior occurrence of a similar event, or conclusory statements of experts. Further, an employer's awareness that a dangerous condition exists is not enough. Instead, an employer must be aware that injury is certain to result from what the actor does.

(3) ...