Zuke v. Fritz Enterprises, Inc.

• Decision Date: 01 December 1993
• Docket Number: Docket No. 141841
• Citation: 509 N.W.2d 787,202 Mich.App. 572
• Parties: Kenneth ZUKE, Plaintiff-Appellant, v. FRITZ ENTERPRISES, INC., Defendant-Appellee, and USX Corporation, formerly known as US Steel Co., Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 787

509 N.W.2d 787

202 Mich.App. 572

Kenneth ZUKE, Plaintiff-Appellant, v. FRITZ ENTERPRISES, INC., Defendant-Appellee and USX Corporation, formerly known as US Steel Co., Defendant.

Docket No. 141841.

Court of Appeals of Michigan.

Submitted May 12, 1993, at Detroit.

Decided Sept. 10, 1993.

Approved for Publication

Dec. 1, 1993, at 9:25 a.m.

Released for Publication Jan. 27, 1994.

Cummings, McClorey, Davis & Acho, P.C. by Ronald H. Greve, Roseville, for plaintiff-appellant.

Vandeveer Garzia by Robert D. Brignall, Detroit, for defendant-appellee.

Before NEFF, P.J., and MARILYN J. KELLY and WHITE, JJ.

PER CURIAM.

In this case involving the intentional tort exception to the exclusive remedy provision of the Workers' Disability Compensation Act, M.C.L. § 418.131; M.S.A. § 17.237(131), plaintiff appeals as of right from orders of the trial court granting summary disposition pursuant to MCR 2.116(C)(10) to defendant Fritz Enterprises, Inc., and denying plaintiff's motion for reconsideration. We reverse the order of summary disposition and remand this case to the trial court for further proceedings.

I

Plaintiff sued Fritz Enterprises, Inc., his employer, for injuries sustained on the job. Defendant USX Corporation is not involved in this appeal.

Plaintiff worked for Fritz Enterprises at a USX Corporation site. His job consisted of operating a front-end loader to load scrap metal onto a conveyor leading to a hammer mill. The hammer mill contained presses that smashed the scrap metal into smaller pieces for processing. While plaintiff was operating the front-end loader, a piece of metal the size of a golf ball was ejected from the hammer mill, went through the windshield of the front-end loader, bounced off a gearshift lever, and struck plaintiff's right elbow, injuring him. Plaintiff commenced this action by filing a complaint on June 28, 1990. On August 15, 1990, Fritz Enterprises filed an answer to plaintiff's complaint and a written motion for summary disposition pursuant to both MCR 2.116(C)(8) and (10) on the basis that plaintiff's claims were barred by the exclusive remedy provision contained in § 131. At the hearing on the motion for summary disposition, the attorneys for both parties characterized the motion as being based upon plaintiff's pleadings alone.

On March 28, 1991, after the hearing on the motion, the trial court issued a written opinion granting the motion for summary disposition pursuant to MCR 2.116(C)(10). In its opinion, the trial court stated its finding that plaintiff had not set forth by way of affidavit or other documentary evidence specific facts showing that there is a genuine issue for trial. The trial court also found that plaintiff had not established that his employer had an intent to injure. On April 16, 1991, the trial court entered judgment in favor of Fritz Enterprises.

On April 26, 1991, plaintiff moved for reconsideration of the trial court's decision, presenting plaintiff's deposition testimony from a March 26, 1991, deposition. At his deposition, plaintiff testified that pieces of metal would continuously be ejected from the mill and would shatter the windshield of the loader all the time. He testified that the metal pieces would be anywhere from pea-size to basketball-size and that being hit by pea-size pieces felt like being punched. Plaintiff also testified that he had seen one piece of metal that was ejected from the mill "wipe out" a portable toilet. Plaintiff testified that the area in the direction of the loader and behind where the conveyor fed into the mill was considered to be the area in which there was the greatest danger of flying metal debris. He stated that no other employee had been hurt while driving equipment up to the conveyor, but that windows of dump trucks had been broken out by the flying debris. Plaintiff knew of at least two other employees in jobs different from plaintiff's who had been injured by metal pieces being ejected from the mill. Even more employees had been hit by pieces of debris, but they were not seriously injured.

Plaintiff further testified in his deposition that he complained to his employer's safety man and to the maintenance crew that he needed a protective cage on the loader. According to plaintiff, he told them, "I need a ... cage on that thing before I get killed." He testified that, in response, he was told that they would get one on, but one was not installed until after plaintiff was injured. Plaintiff testified that he did not believe that anyone intended that he personally be hurt, but stated: "They had to know sooner or later my luck would run out."

Plaintiff also filed his own affidavit in the trial court record, which stated:

1. That I have personal knowledge upon which to testify as to the facts contained in this Affidavit.

2. That I was employed at the time of my injury by Fritz Enterprises, Inc.

3. That as a condition of my employment, I was required to operate a front end loader and load scrap metal, steel and dirt onto a conveyor belt.

4. That I had warned foremen, maintenance people and several others at Fritz Enterprises that I was working under extremely dangerous conditions, and I begged them to make a cage for the cab of my front end loader to prevent an injury, such as the one that has occurred in this case.

5. That it was a condition of my employment to work in this battle zone, and I had no choice but to work in this environment, other than to end my employment with Fritz...