Williams v. Amerisure Ins. Co.

• Citation: 461 Mich. 975,607 N.W.2d 78
• Decision Date: 13 March 2000
• Docket Number: Docket No. 177052.,Docket No. 114169-114171,Docket No. 171299,Docket No. 176861,Docket No. COA
• Parties: Darl S. WILLIAMS, Plaintiff-Appellant, v. AMERISURE INSURANCE COMPANY, Defendant-Appellee. Darl S. Williams, Plaintiff-Appellant, v. Organic Chemicals, Inc., Principal Defendant-Appellee, and Amerisure Insurance Company, Garnishee Defendant-Appellee.
• Court: Michigan Supreme Court

607 N.W.2d 78

461 Mich. 975

Darl S. WILLIAMS, Plaintiff-Appellant, v. AMERISURE INSURANCE COMPANY, Defendant-Appellee.

Darl S. Williams, Plaintiff-Appellant, v. Organic Chemicals, Inc., Principal Defendant-Appellee, and Amerisure Insurance Company, Garnishee Defendant-Appellee.

Docket Nos. 114169-114171, COA Nos. 171299, 176861, 177052.

Supreme Court of Michigan.

March 13, 2000.

On order of the Court, the application for leave to appeal from the February 5, 1999, decision of the Court of Appeals is considered, and it is DENIED because we are not persuaded that the question presented should be reviewed by this Court.

MARILYN J. KELLY, J., dissents and states as follows:

The Court of Appeals decision should be reversed. It upset a large jury verdict for the plaintiff, holding that he failed to prove that his employer committed an intentional tort under our test in Travis v. Dreis & Krump Mfg. Co., 453 Mich. 149, 551 N.W.2d 132 (1996). Plaintiff alleges that the Court of Appeals erroneously viewed the facts in a light most favorable to the defendant. I agree.

We held in Travis, supra, that a plaintiff must prove that his employer had actual knowledge that the injury that occurred was certain to occur. The employer must have wilfully disregarded that knowledge.

In this case, it was undisputed that plaintiff's manager knew that plaintiff had a liver condition that required he not be exposed to toxic chemicals. Plaintiff presented evidence showing that the chemical reactor he operated had an exhaust stack that was too short and lacked a carbon filter. The building's walls were porous sheet metal. Winds, particularly westerly winds, would force toxic vapors emitted from the stack back into the building through the walls.

Plaintiff's plant manager, Gene Gray, testified:

Q. Let's stay right there, Mr. Gray, for the time being. Let me ask you if the purpose of the carbon is to absorb vapors to prevent the vapors from entering the atmosphere?

A. Correct.

Q. Is that true?

A. Yes.

Q. And [subsequent to plaintiff's exposure] you did extend the stack and you added carbon filters to prevent operator injury; is that true?

A. Yes, that's true.

Q. You knew that 1,1,1-trichloroeth[ylene] was a chlorinated solvents, didn't you ...

A. Yes.

Q.... at the time Stan was hurt? And you knew that it'd be coming out of the stack, this ten-foot stack or 12-foot stack, didn't you?

A. Yes.

Q. You knew that Stan shouldn't be exposed to that chlorinated solvent, 1,1,1-trichloroeth[ylene], didn't you?

A. Yes.

Q. Did you tell Stan to work on that system?

A. Yes. I had instructed Stan to work on that system.

Further testimony showed that, before plaintiff was injured, defendant had notice that toxic fumes were emitted from the reactor and entered plaintiff's work area. Two days before plaintiff was exposed, another operator "charged" the reactor, resulting in the building filling with toxic fumes. The operator, Mr. Postma, testified that he told Mr. Gray about the event. He also testified that the infiltration of fumes into the building would not have occurred had the reactor been connected to a scrubber. He testified as follows:

Q. All right. Did you tell Gene Gray about [the fumes]?

A. Yes, I did.

Q. Did you tell him before Mr. Williams began to do work on the reactor the next day?

A. Sure. I called him that night and explained to him that I'd shut it off because it was too nasty.

Q. Pardon me?

A. It was too nasty in the building, and so I stopped charging it.

Q. Okay. Was this system, the R-201, hooked to the scrubber?

A. No, it was not.

Q. What is the scrubber?

A. It's a fume scrubber for what we use for just that purpose, to scrub the fumes before they get to the atmosphere.

Q. Do you think that it should have been hooked to the scrubber?

A. It would have been nice.

Q. Why is that?

A. We wouldn't have had that problem that I had at that time.

Q. All right. The building wouldn't have filled with fumes ...

A. No.

Q. ... is that right?

A. It would have been vented through that system.

Plaintiff's theory was that the reactor was not properly vented, because it was not connected to a scrubber. Mr. Postma testified that, if fumes were vented to the outside of the building, they would always blow back inside if there were a "westerly or northwest wind." He said that the plant manager, Gene Gray, knew of this condition. Furthermore, Gene Gray testified that he had directed the installation of the reactor. Hence, there was evidence that defendant knew that toxic fumes emitted from the stack would be blown by a westerly wind into the building and injure plaintiff.¹

The Court of Appeals concluded that the defendant was shielded from liability because "[t]here was no evidence that [it] knew that the wind was blowing from the west while plaintiff was operating the reactor...." The Court of Appeals held, and Justice Corrigan believes, that to establish liability plaintiff had to prove that the employer knew where the wind blew from on the date in question. I believe that burden is inappropriate. It sufficed that defendant knew that plaintiff was certain to be exposed to and injured by the fumes as soon as the wind blew from the west or northwest.

The facts in this case are similar to those in Golec v. Metal Exchange Corp., the companion case to Travis, supra.

In Golec, the plaintiff was severely injured while loading scrap into a furnace. The furnace exploded showering him with molten aluminum. He alleged that either water or aerosol cans caused the explosion. The defendant argued that he had been instructed regarding a method of loading wet scrap to avoid an explosion. The defendant also argued that, if an explosion were certain to occur, it would have happened earlier in the plaintiff's shift.

We acknowledged in Golec that the plaintiff did not contend that "every load of scrap had the potential to explode because each load could have contained a closed aerosol can or water." Instead, we held that "[i]f the facts as alleged by plaintiff are established at trial, then plaintiff has proved the existence of a continually operative dangerous condition." Travis, supra at 186, 551 N.W.2d 132. In the case at bar, fumes may not have entered the building when the wind came from the east, north, or south. But, it was common knowledge that the wind often came from the west or northwest. Given that fact, the defendant's operation of an unfiltered reactor in the building where plaintiff worked constituted a "continually operative dangerous condition" as to this plaintiff.²

The circumstances in this case are also similar to those in the Film Recovery case that is discussed in both Travis, supra, and Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986). In Travis, we reiterated the facts of Film Recovery:

"Film Recovery Systems went into the business of recovering silver from film negatives. This was done by placing the negatives into vats of cyanide. Hydrogen cyanide gas would bubble up from the vats and there was inadequate ventilation. The employer knew about the dangers. The labels on the chemicals being used contained adequate warnings; as a result, the employer hired only employees who could not speak or read English. The workers complained about the fumes daily. In 1981, an inspector had warned that the operation had outgrown the plant. The employer's response was to move the executive offices while tripling the size of the operations. Eventually one worker died and several others were seriously injured because of hydrogen cyanide poisoning. The corporate officers were convicted of involuntary manslaughter." [Travis, supra at 177-178, n. 12, 551 N.W.2d 132, quoting Beauchamp, 427 Mich. at 23-24, 398 N.W.2d 882.]

We agreed with Professor Larson who opined in his treatise on worker's compensation that the facts of Film Recovery constituted an intentional tort. See Travis, supra at 177, 551 N.W.2d 132.

Professor Larson stated the material facts as follows:

"[T]he fumes ... were continuously operative, and the employer knew it.... The exposure to fumes did in fact occur. The only possible "unknown" might have been the effect of inhaling the fumes, but this unknown was removed by the plain warning on the package. The hiring of only workers who could not read warning labels confirms that the employer wanted those employees to continue to inhale these and suffer these known consequences. A court could well say that this amounted to intending the injury." [Travis, supra at 178, 551 N.W.2d 132, quoting 2A Larson, Workmen's Compensation, § 68.15(e), pp. 13-105 to 13-106.]

Returning to the facts in the case at bar, the defendant employer knew that dangerous fumes were being emitted from the stacks. He knew that Darl Williams had a liver condition that necessitated he not be exposed to the fumes. Defendant knew that whenever a wind arose from the west or northwest, people inside the building would be exposed to the fumes. Despite this knowledge, the employer told Williams to work in the building. Williams' exposure to the fumes was certain to occur, much like the exposure the non-English speaking workers were subjected to in the Film Recovery case. The exposure was certain to injure plaintiff.

The question whether an intentional tort has been alleged is one of law for the trial court. Whether the facts are as plaintiff alleges is a jury question. See Travis, supra at 188, 551 N.W.2d 132. Here, the Court of Appeals failed to view the evidence in a light most favorable to Williams. Properly viewed, the proof plaintiff presented was sufficient for the jury to conclude that the manager knew plaintiff's injury was "certain to occur" and wilfully disregarded that knowledge. On the basis of the foregoing, I would reverse the judgment of the Court of Appeals and reinstate the jury verdict.

CORRIGAN, J., concurs and states as follows:

Plaintiff alleged that defendant, his employer, intentionally exposed him to toxic fumes that injured his...