Blankenship v. Andrews



HAYES, Individually and as Co-Personal
Representatives of the ESTATE OF BRENT LEE
HAYES, deceased,


December 9, 2004
V No. 248866
Wayne Circuit Court

LC No. 01-121723-NI




Before: Murray, P.J., and Sawyer and Smolenski, JJ.

Defendant Wayne County appeals as of right the order denying its motion for summary
disposition on governmental immunity grounds.1 We reverse. This appeal is being decided
without oral argument pursuant to MCR 7.214(E).
Plaintiffs? decedent was killed while working on a road patching crew while employed by
defendant. The decedent was struck by the trailing ?shadow? vehicle that was part of the rolling

1 The individual defendant, Arthur Andrews, did not appeal from the trial court?s order, thus the
question of employee immunity is not before the Court. Defendant indicated that Andrews did
file a delayed application for leave to appeal; however, this Court denied the application.
Blankenship v Andrews, unpublished order of the Court of Appeals, entered June 2, 2004
(Docket No. 253231).

patch crew in which he was working. The incident occurred when the shadow vehicle driver,
defendant Andrews, momentarily turned his head at the same time the lead vehicle stopped.
Because of the short distance between the lead and shadow vehicles, the decedent was crushed.
Plaintiffs brought this action asserting that the death arose from an intentional tort, not
subject to the exclusive remedy provision of the Worker?s Disability Compensation Act
(WDCA), MCL 418.131. Plaintiffs asserted that they avoided governmental immunity through
the motor vehicle exception, MCL 691.1405. Defendant argued that (1) plaintiffs could not
establish the existence of an intentional tort under the WDCA, and (2) even if plaintiffs could
establish an intentional tort in order to avoid the exclusive remedy of the WDCA, it would still
be immune because there is no intentional tort exception to governmental immunity, citing Smith
v Dep?t of Pub Health, 428 Mich 540; 410 NW2d 749 (1987). The trial court denied defendant?s
motion for summary disposition, and defendant filed a claim of appeal pursuant to MCR
We review de novo the denial of a motion for summary disposition decided under MCR
2.116(C)(7), as well as the issue of whether the defendant is entitled to statutory governmental
immunity. Herman v Detroit, 261 Mich App 141, 145; 680 NW2d 71 (2004). In this case,
rather than determining whether Smith precludes application of the WDCA intentional tort
exception against a governmental entity,2 we instead conclude that there is no genuine issue of
material fact that plaintiffs could not establish the existence of an intentional tort. This issue is
also reviewed de novo. Herbolsheimer v SMS Holding Co, Inc, 239 Mich App 236, 240; 608
NW2d 487 (2000).3
In Travis v Dreis & Krump Mfg Co, 453 Mich 149; 551 NW2d 132 (1996), the Supreme
Court outlined what proofs are necessary for a case to fall within the intentional tort exception4
to the exclusive remedy provision of the WDCA:

2 Although defendant?s brief submitted to the trial court and this Court addressed the
applicability of Smith, it did not cite to this Court?s decision in Madison v Detroit, 208 Mich App
356; 527 NW2d 71 (1995), rev?d on other grounds, 450 Mich 976; 547 NW2d 653 (1996), which
did address the issue. Plaintiffs? brief neither addresses nor even cites to Smith. Moreover, both
parties? briefs treat as the main issue on appeal to be whether an intentional tort was established.
3 Although the trial court denied defendant?s motion, premised in part on governmental
immunity, the applicability of the WDCA to this case is not resolved by application of
governmental immunity. However, plaintiffs concurred with defendant?s statement of
jurisdiction, and focused much of their appellate argument on whether there were sufficient facts
to create a jury submissible issue on the intentional tort exception to the exclusive remedy
provision of the WCDA. We therefore reach this issue by treating the claim of appeal as an
application for leave to appeal, which we grant. Newton v Michigan State Police, 263 Mich App
251, 259; 688 NW2d 94 (2004).
4 The intentional tort exception is contained within MCL 418.131(1), and provides as follows:
The right to the recovery of benefits as provided in this act shall be the
employee?s exclusive remedy against the employer for a personal injury or

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
(Boyle, J.).]
Plaintiffs here rely upon the second method of proving an intentional tort under Travis, that
being use of circumstantial evidence when there is no direct evidence of an intent to injure. As
we stated in Palazzola v Karmazin Products Corp, 223 Mich App 141, 149-150; 565 NW2d 868
(1997), plaintiff must prove the following:
(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,
that 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) ?Willfully disregard? ? This element requires proof that an employer?s
act or failure to act must be more than mere negligence, e.g., failing to protect
someone from a foreseeable harm. Instead, an employer must, in fact, disregard
actual knowledge that an injury is certain to occur. [Emphasis in original.]
In this case, after consideration of the evidence in a light most favorable to plaintiffs, we
conclude that plaintiffs failed to establish that defendant committed an intentional tort against
plaintiffs? decedent. Plaintiffs? theory was that defendant had promulgated safety rules that
required the distance between the shadow vehicle and the working crew to be approximately one

occupational disease. 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. This subsection shall not enlarge or
reduce rights under the law.

hundred feet, but had failed to train the employees and enforce the rules with road crews.
Defendant?s failure to enforce its own rules, which plaintiffs claim had obvious dangerous
consequences, caused decedent?s death and was an intentional tort under a properly interpreted
However, there is no evidence to suggest, as required by Travis, that defendant
deliberately disregarded actual knowledge that an injury was certain to occur. Travis, supra at
180; Palazzola, supra at 150. The fact that defendant?s supervisors knew that defendant?s safety
guidelines were not being provided to workers does not create a willful disregard of actual
knowledge that an injury is certain to occur. Indeed, what plaintiffs are alleging, and the
evidence suggests occurred, is that the decedent was injured because defendant failed to properly
train its employees regarding defendant?s own guidelines, and the guidelines pertain to a
normally dangerous condition. This type of evidence suggests that defendant failed to protect
the decedent from a foreseeable harm, and failed to properly train its employees, both of which
are insufficient as a matter of law to establish an intentional tort. Palazzolo, supra.
Moreover, the undisputed evidence also established that there had been no prior incidents
similar to what occurred to the decedent, and there was no evidence that defendant was warned
that if these employees continued as they were, injury was certain to occur.5 In sum, there is
simply no evidence that defendant was aware that an injury was certain to occur because of the
crew procedures, or that it deliberately disregarded any such information that resulted in the
Reversed and remanded for entry of an order granting defendant?s motion for summary
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ Michael R. Smolenski

5 Of course, defendant realized rolling patching work was dangerous, as it promulgated safety
guidelines for the crews. However, mere promulgation of safety standards does not constitute
actual knowledge that an injury is certain to occur.
6 Both parties cite to events or evidence regarding matters occurring after the accident.
However, we conclude that such evidence is not material to the issue of defendant?s knowledge
and intent before the accident occurred.