Opinion
357119
09-22-2022
SHAUNTANIQUE BROWN, Personal Representative of the ESTATE OF LORRAINE FAISON, Plaintiff-Appellant, v. BURLINGTON COAT FACTORY OF TEXAS, INC., and BURLINGTON COAT FACTORY WAREHOUSE CORPORATION, doing business as BURLINGTON COAT FACTORY, Defendants-Appellees.
UNPUBLISHED
Wayne Circuit Court LC No. 20-011978-NO
Before: M. J. Kelly, P.J., and Murray and Borrello, JJ.
PER CURIAM.
In this wrongful death action, plaintiff, personal representative for the estate of Lorraine Faison, appeals as of right the trial court's order granting summary disposition to defendants under MCR 2.116(C)(8). On appeal, plaintiff argues that the trial court erred by concluding that she had failed to state a claim for an intentional tort under the Worker's Disability Compensation Act (WDCA), MCL 418.101 et seq. And even if she did fail to state a claim, plaintiff argues, the trial court abused its discretion by not allowing her to amend her complaint. We conclude that plaintiff failed to state a claim for an intentional tort, and affirm the trial court's order granting defendants' motion for summary disposition. But we remand to the trial court to allow plaintiff to file a motion for leave to amend her complaint.
I. FACTS
Plaintiff initiated this action alleging that defendants were liable for the shooting death of decedent Lorraine Faison, who was employed at a Burlington Coat Factory store and was shot at work by her coworker, Sandra Waller. Plaintiff alleged in her complaint that, on October 15, 2017, Waller and decedent "began to argue about the proper way to scan the aisles" of defendants' store. The argument escalated, and decedent alerted the assistant store manager, Nicole Good. Waller told Good that, about three months ago, she and decedent had a similar argument. Good instructed Waller to return to work but to move to another department away from decedent. But after Waller had returned to work, Waller "continued yelling at and engaging in otherwise belligerent behavior with [decedent]." In response to this, Good told Waller and decedent to go home for the day. "Good remained with [decedent] while Waller went to the back of [defendants'] store to punch out, intending to keep the two women separated and prevent further escalation of the altercation."
Plaintiff alleged that defendants scheduled decedent and Waller to work another shift together the following day, on October 16, 2017. During that shift, Waller resumed the argument from the day before. At some point, Waller pulled out a handgun and shot and killed decedent.
As a result of decedent's death, plaintiff sued defendants for wrongful death and alleged that the WDCA's exclusive remedy provision did not apply to her claim because defendants had committed an intentional tort as defined under MCL 418.131. According to plaintiff, defendants deliberately scheduled decedent to work with Waller the day after the argument, specifically intending for Waller to injure plaintiff. In support of her allegation that defendants had specific intent to injure, plaintiff alleged that defendants "possessed actual knowledge that the workplace environment created by Waller was extremely dangerous such that injury was certain to occur to one or more of its employees, especially decedent," and that defendants willfully disregarded this certain danger by requiring decedent to work with Waller anyway. In lieu of filing an answer, defendants moved for summary disposition under MCR 2.116(C)(8), arguing that plaintiff failed to allege facts sufficient to state a claim for an intentional tort under the WDCA.
The trial court agreed with defendant. After a hearing on defendants' motion, the trial court dismissed plaintiff's claim, reasoning that plaintiff failed to sufficiently allege facts to support a claim for an intentional tort under the WDCA. This appeal followed.
II. LEGAL SUFFICIENCY OF PLAINTIFF'S COMPLAINT
"This Court reviews de novo the grant or denial of a motion for summary disposition." Saffian v Simmons, 477 Mich. 8, 12; 727 N.W.2d 132 (2007). "A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the factual allegations in the complaint." El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019) (citation omitted). "When considering such a motion, a trial court must accept all factual allegations as true, deciding the motion on the pleadings alone." Id. at 160 (citation omitted). "A motion under MCR 2.116(C)(8) may only be granted when a claim is so clearly unenforceable that no factual development could possibly justify recovery." Id. (citation omitted). "[T]he mere statement of a pleader's conclusions, unsupported by allegations of fact, will not suffice to state a cause of action." ETT Ambulance Serv Corp v Rockford Ambulance, Inc, 204 Mich.App. 392, 395; 516 N.W.2d 498 (1994). In the context of the intentional tort exception under the WDCA, whether the facts alleged by plaintiff are enough to constitute an intentional tort is a question of law for the court, and whether the facts are as plaintiff alleges is a question for the jury. Gray v Morley, 460 Mich. 738, 742-743; 596 N.W.2d 922 (1999). This Court reviews de novo questions of law. See Carter v Ann Arbor City Attorney, 271 Mich.App. 425, 427; 722 N.W.2d 243 (2006) (citation omitted).
Under the WDCA, employers compensate employees for personal injuries suffered in the course of employment, regardless of fault. Herbolsheimer v SMS Holding Co, Inc, 239 Mich. App 236, 240; 608 N.W.2d 487 (2000) (citation omitted); MCL 418.301. "In return for this almost automatic liability, employees are limited in the amount of compensation they may collect from their employer, and, except in limited circumstances, may not bring a tort action against the employer." Clark v United Technologies Auto Inc, 459 Mich. 681, 687; 594 N.W.2d 447 (1999). One of these limited circumstances is when an employee can prove that the employer committed an intentional tort. Johnson v Detroit Edison Co, 288 Mich.App. 688, 696; 795 N.W.2d 161 (2010). MCL 418.131(1) defines what constitutes an intentional tort under the WDCA:
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.
Thus, to show that her employer has committed an intentional tort, a plaintiff must show that the employer acted deliberately and specifically intended to injure her. Johnson, 288 Mich.App. at 696. A deliberate act may be one of commission or omission, and an employer acts with specific intent when the employer had a purpose to bring about certain consequences. Travis v Dreis & Krump Mfg Co, 453 Mich. 149, 169, 170-171; 551 N.W.2d 132 (1996) (opinion by Boyle, J.).
Accepted as true and construed in a light most favorable to plaintiff, the facts in plaintiffs complaint show that defendants acted deliberately. Plaintiff alleged that defendants required decedent to work with Waller the day after decedent's and Waller's argument, and neither party contends that defendants' doing so was an unintentional act. So, the remaining issue is whether defendants required decedent to work with Waller with the specific intent to injure decedent.
"A plaintiff can prove that a defendant had an intent to injure through circumstantial evidence if he establishes that (1) the employer has actual knowledge (2) that an injury is certain to occur (3) yet disregards that knowledge." Luce v Kent Foundry Co, 316 Mich.App. 27, 33; 890 N.W.2d 908 (2016) (citations omitted). Plaintiff argues that Good had actual knowledge that requiring decedent to work with Waller after decedent's and Waller's argument would result in Waller's injuring decedent.
" '[A]ctual knowledge' cannot be constructive, implied, or imputed; rather, a plaintiff must show that the employer had actual knowledge that an injury would follow from the employer's act or omission." Johnson, 288 Mich.App. at 697 (internal quotation marks and citation omitted). "In the case of a corporate employer, a plaintiff need only show that 'a supervisory or managerial employee had actual knowledge that an injury would follow from what the employer deliberately did or did not do.'" Id., quoting Fries v Mavrick Metal Stamping, Inc, 285 Mich.App. 706, 714; 777 N.W.2d 205 (2009). An employer's knowledge that an injury was certain to occur does not require the employer to know that an injury will occur in a specific way, on a certain date, or to a particular employee. Johnson, 288 Mich.App. at 699.
Even when viewed in a light most favorable to plaintiff, the facts in plaintiff's complaint are insufficient to establish that defendants had actual knowledge that Waller would injure decedent. In her complaint, plaintiff alleged that Waller and decedent had an argument about the proper way to scan aisles, that Waller and decedent had a similar argument about three months prior, that Waller continued the argument with decedent after Good had separated them, and that Good stood with decedent to keep her separated from Waller while Waller clocked out. Whether these facts are considered together or in isolation, they are insufficient. For starters, there are no allegations that Waller and decedent had any issues with each other in the three months between their first argument and the October 15, 2017, argument. Given that Waller and decedent had no issues with each other for months after the first argument, Good would have no substantial reason to think that requiring decedent to work a shift with Waller after the second argument would be of concern. More importantly, there was no allegation that either of decedent's and Waller's arguments ever resulted in physical harm to either party, that Waller ever threatened to physically harm decedent, that Waller had violent tendencies of which Good was aware, or that Waller had access to any sort of weapon. Cf LaDuke v Ziebart Corp, 211 Mich.App. 169, 173-174; 535 N.W.2d 201 (1995). Simply put, plaintiff alleged no facts showing that Waller was dangerous or posed a physical threat to decedent.
Admittedly, plaintiff did allege that Good stood by decedent while Waller clocked out, which could suggest that Good was apprehensive about decedent's safety. Yet, even if this fact were enough to show that Good actually knew Waller would injure decedent, plaintiffs complaint is deficient for another reason: it fails to allege facts showing that injury was certain to occur.
"An injury is certain to occur if there is no doubt that it will occur . . . ." Herman v Detroit, 261 Mich.App. 141, 148; 680 N.W.2d 71 (2004). This certainty 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." Palazzola v Karmazin Prod Corp, 223 Mich.App. 141, 149-150; 565 N.W.2d 868 (1997) (internal quotation marks omitted). In Travis, our Supreme Court approved one type of circumstantial evidence that would satisfy this element:
When an employer subjects an employee to a continuously operative dangerous condition that it knows will cause an injury, yet refrains from informing the employee about the dangerous condition so that he is unable to take steps to keep from being injured, a factfinder may conclude that the employer had knowledge that an injury [was] certain to occur. [Travis, 453 Mich. at 178 (opinion by Boyle, J.)].
But plaintiff alleged no facts suggesting that Waller's presence in defendants' workplace was a continuously operative dangerous condition. Unlike a stamping press without safety equipment, Fries, 285 Mich.App. at 714-717, or a hot furnace loaded with wet scrap and aerosol cans, Travis, 453 Mich. at 186 (opinion by Boyle, J.), there is nothing to suggest that Waller was so inherently dangerous that every encounter with her bore the potential for injury. See id. ("Plaintiff does not contend that every load of scrap would have exploded, but that every load of scrap had the potential to explode because each load could have contained a closed aerosol can or water."); Fries, 285 Mich. at 717 ("[E]very encounter here between a worker's loose clothing and the [stamping press's] finger control buttons inherently embodied the potential for inadvertent, unexpected cycling of the machine."). To reiterate, plaintiff alleged that decedent and Waller had only two verbal confrontations three months apart, and plaintiffs complaint indicates that, during those three months, decedent and Waller had no issues. And again, plaintiff alleged nothing suggesting that Waller had any violent tendencies, that Waller wielded any weapons, or that Waller had threatened to harm decedent or anyone else. Altogether, the trial court correctly concluded that plaintiff failed to state a claim for an intentional tort under the WDCA.
Our dissenting colleague is of the opinion that we have implicitly employed the standards governing a motion under MCR 2.116(C)(10), rather than (C)(8). But we have not relied upon any documentary evidence in conducting this review, so (C)(10) was not employed. Instead, we have simply concluded under the standard governing (C)(8) motions, plaintiff's allegations (which we have of course accepted as true) do not, as a matter of law, arise to the high threshold for an intentional tort claim, which is permissible under the court rule and statute. Additionally, we have not held that plaintiff must show that defendant knew Waller would shoot the decedent; instead, we held that no allegations supported that defendant knew or should have known that Waller would have physically harmed the decedent.
III. AMENDMENT OF COMPLAINT
In plaintiffs response to defendants' motion for summary disposition, and at the hearing on defendants' motion for summary disposition, plaintiff requested that the trial court allow her to file an amended complaint should the trial court conclude she failed to state a claim. The trial court did not explicitly address plaintiffs request to amend her complaint. But as plaintiff points out on appeal, the trial court's ruling implies that it believed allowing plaintiff to amend her complaint would be futile. Specifically, the trial court stated, "I don't know care [sic] how you shape it; the employer didn't . . . ha[ve] actual knowledge that an injury was certain to occur, no way on God green-God's green earth, when you have two people working together, do you think after they had a disagreement about stocking shelves and working together that the other would bring in a gun and shoot the other woman in the chest."
On appeal, plaintiff argues that the trial court erred. We review a trial court's decision regarding a motion to amend the pleadings for an abuse of discretion. Sanders v Perfecting Church, 303 Mich.App. 1, 8-9; 840 N.W.2d 401 (2013). A court abuses its discretion when it selects an outcome that falls outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 N.W.2d 809 (2006). In addition, "[t]his Court reviews de novo whether the trial court properly interpreted and applied the relevant statutes and court rules." Franks v Franks, 330 Mich.App. 69, 86; 944 N.W.2d 388 (2019).
"[Amendment is generally a matter of right rather than grace." PT Today, Inc v Comm 'r of Office of Fin & Ins Servs, 270 Mich.App. 110, 143; 715 N.W.2d 398 (2006). Thus, "[a] trial court should freely grant leave to amend a complaint when justice so requires." Wolfenbarger v Wright, 336 Mich.App. 1, 19; 969 N.W.2d 518 (2021) (citation omitted); MCR 2.118(A)(2). A motion to amend should ordinarily be denied only for particularized reasons. Miller v Chapman Contracting, 477 Mich 102, 105; 730 N.W.2d 462 (2007). A trial court does not abuse its discretion in denying a motion to amend if (1) the claimant has unduly delayed seeking to amend the complaint; (2) the claimant has exhibited bad faith or dilatory motive; (3) the claimant has repeatedly failed to cure deficiencies by amendments previously allowed; (4) the opposing party would be unduly prejudiced by allowing the amendment; or (5) the amendment would be futile. Wolfenbarger, 336 Mich App at 19, citing Lane v KinderCare Learning Ctrs, Inc, 231 Mich.App. 689, 697; 588 N.W.2d 715 (1998).
To the extent that the trial court declined to allow plaintiff to amend her complaint on the grounds of futility, the trial court abused its discretion. This Court has held that a trial court cannot conclude that an amendment would be futile without first seeing the proposed amended complaint or claim. As stated in Liggett Restaurant Group, Inc v Pontiac, 260 Mich.App. 127, 139; 676 N.W.2d 633 (2003):
In denying plaintiff's request to file a motion to amend its complaint, the trial court simply concluded that any amendment of plaintiff's complaint would be futile. While the better practice would have been for plaintiff to file a motion for leave to amend, we note that there was no basis for the trial court's decision in this instance. A determination of futility must be based on the legal insufficiency of the claim on its face. Because plaintiff had yet to identify the proposed claim, there was no basis for the trial court's determination that it was legally insufficient. Accordingly, the trial court abused its discretion in this regard. [Id. (footnote omitted)].
Like in Liggett, plaintiff never identified the facts she would allege in an amended complaint. As a result, the trial court could not say whether an amended complaint would be legally insufficient on its face. Further, even if the trial court denied plaintiff's request to amend her complaint for reasons other than futility, the trial court still abused its discretion. As this Court has held, the trial court must specify its reasons for denying leave to amend, and the failure to do so requires reversal unless the amendment would be futile. PT Today, Inc, 270 Mich.App. at 143.
The trial court's order granting defendants' motion for summary disposition is affirmed, but we remand to allow plaintiff an opportunity to file a motion for leave to amend her complaint. We do not retain jurisdiction, and no costs are awarded to either party.
BORRELLO J. (concurring in part and dissenting in part).
I. BACKGROUND
Aa stated by my colleagues in the majority, plaintiff initiated this action alleging that defendants were liable for the shooting death of Lorraine Faison, who was employed at a Burlington Coat Factory store in Taylor, Michigan and was shot at work by fellow employee Sandra Waller. Plaintiff, as personal representative of Faison's estate, alleged that on October 15, 2017, Waller and Faison were working together and "began to argue about the proper way to scan the aisles of the store." According to the complaint, the argument escalated and Faison alerted the assistant store manager, Nicole Good, who spoke to both Faison and Waller. Waller told Good that she and Faison had a similar argument about three months earlier. Good instructed Waller to return to work and move to another department away from Faison. Waller returned to work but allegedly "continued yelling at and engaging in otherwise belligerent behavior with Faison." Good sent both employees home for the day and "remained with Faison while Waller went to the back of Defendants' store to punch out, intending to keep the two women separated and prevent further escalation of the altercation."
Plaintiff alleged that defendants scheduled decedent and Waller to work another shift together the following day, on October 16, 2017. During that shift, Waller resumed the argument with Faison. At some point, Waller pulled out a handgun and shot Faison in the chest, killing her.
In seeking to hold defendants liable for Faison's death, plaintiff alleged that "under Michigan law, specifically MCL 418.131(1), an employer can and will be liable to an employee when the employer commits a deliberate act with actual knowledge that an injury is certain to occur." Plaintiff asserted that "Defendants Burlington, through its supervisors, managers, and other agents, possessed actual knowledge that the workplace environment created by Waller was extremely dangerous such that injury was certain to occur to one or more of its employees, especially decedent Faison." Further, plaintiff claimed that "That Defendants Burlington allowed Waller to return to work immediately following an altercation with decedent Faison, and further allowed Waller to remain on the same shift as Faison, without any intervention or corrective measures, in willful disregard of the knowledge that an injury was certain to occur."
In lieu of filing an answer, defendants moved for summary disposition under MCR 2.116(C)(8). Defendants argued that plaintiff failed to state a claim on which relief could be granted because plaintiff's complaint did not allege facts showing that defendant committed an intentional tort for purposes of this exception to the exclusive remedy provision of the Worker's Disability Compensation Act of 1969 (WDCA), MCL 418.101, et seq. Defendants argued that plaintiff had not alleged any facts to show that defendants had actual knowledge that an injury was certain to occur as required to bring a claim within the intentional tort exception in MCL 418.131(1). According to defendants, plaintiffs complaint at most alleged that defendants could be imputed with constructive knowledge, which is insufficient to establish an intentional tort for purposes of MCL 418.131(1).
In response, plaintiff argued that she alleged facts demonstrating that defendants committed an intentional tort sufficient to satisfy the intentional tort exception to the exclusive remedy provision of the WDCA because the complaint alleged that Good, a supervisory employee, knew that Faison and Waller were involved in an argument the day before the shooting that ended in both employees being sent home and that these two employees had previously been involved in a similar argument. Plaintiff also relied on the allegations in the complaint that Good had tried to separate the employees before instructing them to go home and that Good remained with Faison while Waller prepared to leave the premises. Plaintiff contended that she only needed to show that defendants had knowledge that an injury was certain to occur, not that defendants knew that Faison would be shot or killed. Plaintiff argued that scheduling Faison and Waller to work together the next day without taking any corrective or preventative measures showed willful disregard for this knowledge. Plaintiff also requested permission to amend her complaint if the court was "not convinced the Complaint as currently written sufficiently states a claim under the intentional tort exception of the WDCA."
After a hearing on defendants' motion, the trial court granted defendants' motion for summary disposition and dismissed plaintiffs complaint. The trial court ruled that plaintiff had not alleged an intentional tort against defendants for purposes of the WDCA, explaining its reasoning in pertinent part as follows:
[W]hat we have here, even taking the evidence in a light most favorable to the nonmoving party, we have a situation where there was a disagreement between employees. Here, the -- the employer, there was no deliberate act on the part of the -- the -- the employer. All the supervisor did was, one, separated two individuals who had a disagreement on the floor, sent them home early, asked them to cool off. Then the next today, you know, the other woman comes back with a gun and shoots the other woman in the chest. You know, the employer had --definitely had no -- did not specifically intend - intend an injury here. It's -- it's --I don't know care how you shape it; the employer didn't. And whether or not they had actual knowledge that an injury was certain to occur, no way on God green --God's green earth, when you have two people working together, do you think after they had a disagreement about stocking shelves and working together that the other would bring in a gun and shoot the other woman in the chest. That's just outside the realm of reasonableness and that which you would expect to occur and that which the employee would intend to occur in a workplace situation.
II. STANDARD OF REVIEW
My colleagues have correctly and aptly stated the proper standard of review employed in such cases. However, it is my contention that the majority employs a (C)(10) analysis to a (C)(8) motion, despite our Supreme Court's direction in El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019) that "A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the factual allegations in the complaint." (emphasis added). "A motion under MCR 2.116(C)(8) may only be granted when a claim is so clearly unenforceable that no factual development could possibly justify recovery."(emphasis added). El-Khalil, 504 Mich. at 160. This Court has previously explained the well-established principles applicable to reviewing a motion under MCR 2.116(C)(8):
Well-established principles guide our review. A complaint must contain "[a] statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specific allegations necessary reasonably to inform the adverse party of the nature of the claims the adverse party is called on to defend . . . ." MCR 2.111(B)(1). "[T]he primary function of a pleading in Michigan is to give notice of the nature of the claim or defense sufficient to permit the opposite party to take a responsive position." Our Supreme Court has characterized MCR 2.111(B)(1) as consistent with a "notice pleading environment . . . ." If a party fails to plead facts with sufficient detail, the court should permit "the filing of an amended complaint setting forth plaintiff's claims
in more specific detail." [Dalley, 287 Mich.App. at 305-306 (some citations omitted; ellipses and alterations in original).]
In the context of the intentional tort exception to the exclusive remedy provision of the WDCA, "the issue whether the facts alleged by plaintiff are sufficient to constitute an intentional tort is a question of law for the trial court, while the issue whether the facts are as plaintiff alleges is a jury question." Gray v Morley, 460 Mich. 738, 742-743; 596 N.W.2d 922 (1999). Questions of law are reviewed de novo. See Carter v Ann Arbor City Attorney, 271 Mich.App. 425, 427, 438; 722 N.W.2d 243 (2006).
In general, employees who sustain work-related injuries are limited to the benefits provided by the WDCA as their sole remedy for recovering from their employers unless the employee can demonstrate that the employer committed an intentional tort as that term is defined under the WDCA. Bagby v Detroit Edison Co, 308 Mich.App. 488, 491; 865 N.W.2d 59 (2014). MCL 418.131(1) provides:
(1) 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 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 law.
Accordingly, for purposes of the intentional tort exception under the WDCA, the statutory definition of "intentional tort" controls and the question is not whether a "true" intentional tort was committed. Bagby, 308 Mich.App. at 491. "[T]o recover under the intentional tort exception of the WDCA, a plaintiff must prove that his or her injury was the result of the employer's deliberate act or omission and that the employer specifically intended an injury." Id. Specific intent may be shown by "direct evidence that the employer had the particular purpose of inflicting an injury upon his employee." Id. (quotation marks and citation omitted). Alternatively, "the specific intent element may be satisfied in the absence of direct evidence if the plaintiff can show that the employer had actual knowledge that an injury is certain to occur, yet disregards that knowledge." Johnson v Detroit Edison Co, 288 Mich.App. 688, 697; 795 N.W.2d 161 (2010) (quotation marks and citation omitted).
Here, plaintiff claims that defendants, through Good, had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. "In the case of a corporate employer, a plaintiff need only show that a supervisory or managerial employee had actual knowledge that an injury would follow from what the employer deliberately did or did not do." Id. (quotation marks and citation omitted). Plaintiff alleged in the complaint that on the day before the shooting, Good spoke to Waller and Faison after being informed that they were having an argument. During this conversation, Waller allegedly told Good about a previous argument between Waller and Faison that occurred approximately three months earlier. Plaintiff further alleged that Good separated Waller and Faison by instructing them to work in different departments, that Good told both employees to go home after Waller "continued yelling at and engaging in otherwise belligerent behavior with Faison," and that Good "remained with Faison while Waller went to the back of Defendants' store to punch out, intending to keep the two women separated and prevent further escalation of the altercation." According to the complaint, defendants allowed Waller and Faison to return to work the next day, as scheduled, to work on the same shift without implementing any other corrective or preventive measures. During that shift, Waller allegedly resumed the argument and eventually shot Faison.
Again, where I part company in the majority's analysis is that my review, and accepting plaintiff's factual allegations as true and construing them in a light most favorable to plaintiff as the nonmoving party, Dalley, 287 Mich.App. at 304-305, leads me to conclude that it could reasonably be inferred that Good had actual knowledge that Waller was creating a harmful environment under which injury was certain to occur and that Good willfully disregarded that knowledge by allowing Waller and Faison to work together the next morning as scheduled without first taking any additional precautions. See MCL 418.131(1); Johnson, 288 Mich.App. at 697 (stating that MCL 418.131(1) permits "liability when direct evidence of an intentional tort is unavailable, but could be inferred from the surrounding circumstances"). We recognize that "[c]onstructive, implied, or imputed knowledge does not satisfy [the] actual knowledge requirement." Bagby, 308 Mich.App. at 492. However, and contrary to the assertions of the majority, plaintiff has not merely alleged that Good should have known that injury was certain to occur. Viewed in a light most favorable to plaintiff, the allegations that the argument escalated to such a degree of severity that Good decided to send both Waller and Faison home for the day, along with Good's alleged decision to remain with Faison while Good prepared to leave the premises and Good's alleged knowledge of the previous argument, support an inference that Good had actual knowledge rather than only constructive knowledge. Id.
Additionally, contrary to the assertions of the majority and defendant, plaintiff does not have to show that Good specifically knew that Waller would shoot Faison. See Johnson, 288 Mich.App. at 699 (explaining that MCL 418.131(1) does not require the plaintiff to "show that defendants had actual knowledge that plaintiff[] in particular would be injured in a specific way on a certain date"). Furthermore, although Waller and Faison allegedly had an argument three months earlier that apparently did not result in any injury, that does not negate a conclusion that Good actually knew that injury was certain to occur following the more recent argument. See id. at 701 ("The absence of a previous serious injury, or even the absence of previous minor ones, does not necessarily eliminate certainty that an injury will occur.").
Again, for me, this case turns on the court rule under which defendants brought their motion to dismiss. With this in mind, I would conclude that plaintiff satisfied the requirements of notice pleading for sufficiently stating a claim on which relief may be granted. Dalley, 287 Mich.App. at 305-306. The trial court thus erred by granting summary disposition because the claim was not "so clearly unenforceable that no factual development could possibly justify recovery." El-Khalil, 504 Mich. at 160. "If sufficient facts are alleged, then whether the facts are true, and other questions of credibility and the weight of the evidence, become questions for the jury to decide." Johnson, 288 Mich.App. at 696. Here, the trial court erred as a matter of law by improperly weighing the credibility and relative strength of plaintiff's allegations in deciding that there was no intentional tort for purposes of MCL 418.131(1) and that the action should be dismissed under MCR 2.116(C)(8). See Gray, 460 Mich. at 742-743; Johnson, 288 Mich.App. at 696. The relative strength of plaintiff's evidence is not a proper consideration for deciding a motion under MCL 2.116(C)(8) and although plaintiff will need to factually support the allegations, it was premature to dismiss the action at this stage. El-Khalil, 504 Mich. at 162-164. Accordingly, I would vacate the trial court's ruling and remand.
Though I believe it unnecessary to reach the issue, I concur with my colleagues to allow plaintiff to amend their complaint for the reasons stated in their opinion.