Opinion
SC: 163775 COA: 355097
07-07-2023
John DOE and Jane Doe, Plaintiffs-Appellants, v. GENERAL MOTORS, LLC, Defendant-Appellee.
Order
On January 12, 2023, the Court heard oral argument on the application for leave to appeal the October 28, 2021 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals, VACATE the October 1, 2020 order of the Genesee Circuit Court granting summary disposition to defendant, and REMAND this case to the Genesee Circuit Court for further proceedings not inconsistent with this order.
The Court must determine whether plaintiffs sufficiently alleged and supported their claim that defendant committed an "intentional tort" when plaintiff John Doe was severely injured by metal blocks ejected from his employer's die press. The Worker's Disability Compensation Act (WDCA), MCL 418.101 et seq. , provides the exclusive remedy for workplace injuries unless the injury is the result of an intentional tort. MCL 418.131(1). Generally, a grant of summary disposition is premature before discovery on a disputed issue is complete. Mackey v Dep't of Corrections , 205 Mich App 330, 333, 517 N.W.2d 303 (1994). However, summary disposition is appropriate if there is no fair chance that further discovery will result in factual support for the party opposing the motion. Id. Thus, "[t]he dispositive inquiry is whether further discovery presents a fair likelihood of uncovering factual support for the party's position." Powell-Murphy v Revitalizing Auto Communities Environmental Response Trust , 333 Mich App 234, 253, 964 N.W.2d 50 (2020) (quotation marks and citation omitted).
Plaintiffs, the injured employee and his spouse, filed suit under the pseudonyms John and Jane Doe.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(4), (7), and (8). Summary disposition under MCR 2.116(C)(4) is appropriate when "[t]he court lacks jurisdiction of the subject matter." If the WDCA's exclusive remedy provision applies to a claim, the Court may decide the matter pursuant to MCR 2.116(C)(4) because the plaintiff's claim would be barred due to statutory immunity and the court would therefore lack subject-matter jurisdiction. Herbolsheimer v SMS Holding Co, Inc , 239 Mich App 236, 240, 608 N.W.2d 487 (2000). When considering a motion for summary disposition under MCR 2.116(C)(4), the trial court must determine whether the affidavits, together with the pleadings, depositions, admissions, and documentary evidence, demonstrate that the court lacks subject-matter jurisdiction. CC Mid West, Inc v McDougall , 470 Mich. 878, 683 N.W.2d 142 (2004) ; MCR 2.116(G)(5). Though a plaintiff may plead sufficient facts supporting subject-matter jurisdiction, summary disposition under MCR 2.116(C)(4) is proper if a defendant provides documentary evidence showing undisputed facts supporting the lack of jurisdiction. See Meisner Law Group PC v Weston Downs Condo Ass'n , 321 Mich App 702, 719, 909 N.W.2d 890 (2017) ; MCR 2.116(I)(1).
Under MCR 2.116(C)(7), the moving party is entitled to summary disposition if the plaintiff's claims are barred because of "immunity granted by law." The moving party may support its motion for summary disposition under MCR 2.116(C)(7) with "affidavits, depositions, admissions, or other documentary evidence," and "[t]he contents of the complaint are accepted as true unless contradicted" by the evidence provided. Odom v Wayne Co , 482 Mich. 459, 466, 760 N.W.2d 217 (2008) (quotation marks and citations omitted). If no facts are in dispute, and if reasonable minds could not differ regarding the legal effects of the facts, whether the claim is barred is an issue of law for the court. Dextrom v Wexford Co , 287 Mich App 406, 431, 789 N.W.2d 211 (2010). But if a question of fact exists so that factual development could provide a basis for recovery, caselaw states that dismissal without further factual development is inappropriate. Id.
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Maiden v Rozwood , 461 Mich. 109, 119, 597 N.W.2d 817 (1999). "All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant." Id. "A motion under MCR 2.116(C)(8) may be granted only where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Id. (quotation marks and citation omitted).
The WDCA provides:
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. [ MCL 418.131(1) (emphasis added).]
The first sentence of the intentional tort exception sets forth its general requirements: "the employer must engage in a deliberate act (commission or omission) with a specific intent to injure." Travis v Dreis & Krump Mfg Co , 453 Mich. 149, 172, 551 N.W.2d 132 (1996). The second sentence then defines "a limited class of cases in which liability is possible despite the absence of a classic intentional tort and as a means of inferring an employer's intent to injure from the surrounding circumstances in those cases." Id. at 173, 551 N.W.2d 132. "In other words, the second sentence will be employed when there is no direct evidence of intent to injure, and intent must be proved with circumstantial evidence." Id. Plaintiffs here do not allege direct evidence of an intent to injure; thus, they must show that defendant had an intent to injure through circumstantial evidence. See id. Questions of fact remain as to that evidence.
Summary disposition under MCR 2.116(C)(7) and (C)(4) is inappropriate because, based on the evidence and allegations before the Court, there is a fair chance that discovery could uncover additional factual support for plaintiffs’ claim that defendant had actual knowledge that an injury was certain to occur and disregarded that knowledge. Plaintiffs presented evidence that defendant's employees used metal storage blocks in a die press at defendant's manufacturing plant despite having been previously instructed not to do so by supervisors and that employees faced discipline when the storage blocks were misused. Plaintiffs specifically allege that they are aware of 5 to 10 similar instances where storage blocks were left inside the die press and ejected outwardly at a high speed. Without further discovery, plaintiffs are unable to ask why the storage blocks were used, how often they were used, and why such use continued after prior ejections. As a result, plaintiffs are not privy to the extent and number of past similar incidents.
While defendant alleges that no one was injured during the prior incidents known to plaintiffs, a lack of prior injury by an ejected metal storage block does not mean that defendant lacked the knowledge that an injury was certain to occur. Plaintiffs argue that discovery would reveal the Plant Safety Review Meeting minutes from January 1, 2017 to July 17, 2017. Plaintiffs claim that these minutes would show that the former UAW Chair of the North American Engineering and Tooling Center (NAETC) and Head of the Safety Committee for the NAETC told the plant manager that "[s]omething has to be done. We're going to be sitting here talking about killing somebody someday," in reference to the continued use of the metal storage blocks. Discovery concerning the circumstances giving rise to this statement could yield information about defendant's knowledge of the risk and the likelihood of injury.
Moreover, courts have generally had the benefit of discovery in similarly situated cases before granting or denying summary disposition. In Travis , 453 Mich. at 154-156, 180, 551 N.W.2d 132, the seminal case in which this Court discussed the intentional tort exception, we relied heavily on deposition testimony and discovery documents. The same was true in Golec , the companion case to Travis where the Court relied upon deposition testimony to determine that plaintiff presented a genuine issue of material fact regarding whether defendant committed an intentional tort. Id. at 158-160, 183-187, 551 N.W.2d 132. While not a case involving the intentional tort exception to the WDCA, in Ousley v Phelps Towing, Inc , 509 Mich. 875, 875, 970 N.W.2d 673 (2022), this Court similarly reversed a premature grant of summary disposition prior to the conclusion of discovery because the driver of the tow truck had not yet been deposed, and "there remain[ed] a ‘fair likelihood that further discovery [would] yield support for the nonmoving party's position.’ " (Quotation marks and citations omitted.) Plaintiffs should have the same benefit here, and therefore, they are entitled to pursue further discovery.
Summary disposition under MCR 2.116(C)(8) is also inappropriate because the claims are not "so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Maiden , 461 Mich. at 119, 597 N.W.2d 817 (quotation marks and citation omitted). Plaintiffs’ allegations that storage blocks were ejected from the die press with explosive force on 5 to 10 prior occasions, that defendant was warned of the safety risk posed by using the blocks by the Safety Committee chairperson, and that defendant's plant manager insisted on using the blocks despite these warnings are, if accepted as true, sufficient to support an intent to injure through circumstantial evidence and thus survive a motion under MCR 2.116(C)(8). See Travis , 453 Mich. at 173, 551 N.W.2d 132. In other words, plaintiffs’ allegations that defendant continually required employees to use the blocks despite knowledge of the safety risks are legally sufficient to plead a continuously operative dangerous condition. See id. at 178, 551 N.W.2d 132 ; see also El-Khalil v Oakwood Healthcare, Inc , 504 Mich. 152, 162, 934 N.W.2d 665 (2019). Plaintiffs have, therefore, stated a claim that injury was certain to occur by alleging prior incidents of dangerous, heavy metal blocks being launched as projectiles through the air on defendant's watch. Plaintiffs are at least entitled to further discovery on the issue before a court decides if summary disposition is appropriate.
While the Court of Appeals cited MCR 2.116(C)(4), (7) and (8) as the bases for its decision, it did not analyze how each provision warranted granting defendant's motion. The main procedural difference between these rules is that under MCR 2.116(C)(4) and (C)(7), a court is permitted to consider documents outside of the pleadings, while under MCR 2.116(C)(8), the court must only consider the pleadings. Further factual development is necessary to determine whether under MCR 2.116(C)(4) and (7) defendant had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. MCL 418.131(1). Granting summary disposition under these standards was premature because, without further discovery, plaintiffs cannot gather the evidence that is needed for a court to determine whether plaintiffs can invoke the intentional tort exception. If the exception applies, then defendant would not have immunity under MCR 2.116(C)(7), and thus the trial court would have jurisdiction for purposes of MCR 2.116(C)(4). And as discussed above, further discovery presents a fair likelihood of uncovering factual support for plaintiffs’ claim. Furthermore, granting the motion for summary disposition under MCR 2.116(C)(8) was likewise premature because, accepting plaintiffs’ allegations as true, plaintiffs have pleaded sufficient facts in their complaint as to the use and risks associated with the metal blocks to invoke the intentional tort exception. As a result, the Court of Appeals erred by affirming summary disposition at this stage of the litigation. We reverse and remand for further proceedings.
While the dissent questions the need for further discovery before a court considers motions for summary disposition filed under MCR 2.116(C)(7) and (C)(4), we simply disagree that summary disposition was properly granted at this time. Summary disposition is proper under MCR 2.116(C)(7) when there is no dispute about the facts and no reasonable minds could disagree about the legal effects of the facts. Dextrom , 287 Mich App at 431, 789 N.W.2d 211. Here, plaintiffs provided evidence of a number of incidents over the previous years involving the machinery that eventually led to the injury in this case. Although plaintiffs were unaware of injuries that occurred in those years, reasonable minds could disagree about whether these malfunctions provided actual knowledge that an injury was certain to occur here. Just because there had been no prior injuries did not mean that every time the machine would malfunction, an injury would be avoided. Defendant has not yet presented sufficient support that no reasonable minds could disagree regarding the certainty of an injury occurring. Thus, summary disposition is premature based on the evidence already discovered. Nor is summary disposition appropriate under MCR 2.116(C)(4) until defendant demonstrates without dispute that there is no jurisdiction. See Meisner Law Group , 321 Mich App at 719, 909 N.W.2d 890. Since the jurisdictional question here also turns on actual knowledge that an injury was certain to occur, and we concluded defendant has not yet shown the requisite certainty for summary disposition to be proper, under these facts, the trial court's grant of summary disposition under both of these grounds for summary disposition was premature.
Clement, C.J. (dissenting).
I believe that summary disposition was properly granted in this case and that, consequently, the Court of Appeals properly affirmed the trial court's order. Therefore, I dissent. Plaintiffs, John and Jane Doe, have not alleged facts showing that injury was "certain to occur" or that defendant, General Motors, LLC, "willfully disregarded" actual knowledge that injury was certain to occur. MCL 418.131(1). Because of those failures, plaintiffs have not pleaded sufficient allegations to show that the intentional-tort exception to the exclusive-remedy provision of the Worker's Disability Compensation Act (WDCA), MCL 418.101 et seq. , applies. As a result, the circuit court has no subject-matter jurisdiction and summary disposition is properly granted under MCR 2.116(C)(4).
MCL 418.131(1) states that the WDCA is generally an employee's exclusive remedy for personal injury. MCL 418.131(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."). However, there is an exception for intentional torts. The statute sets out that exception as follows:
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. [ MCL 418.131(1) (emphasis added).]
As the majority states, here plaintiffs do not allege direct evidence of an intent to injure, so the question is whether defendant's actions fit the second sentence, i.e., whether defendant "had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge."
That is a high bar, and I do not believe it is met in this case. Specifically, I do not believe that the injury was "certain to occur" or that defendant "willfully disregarded" actual knowledge that injury was certain to occur. First, "certain to occur" is "an extremely high standard." Travis v Dreis & Krump Mfg Co , 453 Mich. 149, 174, 551 N.W.2d 132 (1996) (opinion by BOYLE , J.).
When an injury is "certain" to occur, no doubt exists with regard to whether it will occur. Thus, the laws of probability, which set forth the odds that something will occur, play no part in determining the certainty of injury. Consequently, scientific proof that, for example, one out of ten persons will be injured if exposed to a particular risk, is insufficient to prove certainty. Along similar lines, just because something has happened before on occasion does not mean that it is certain to occur again. [ Id. ]
In the instant case, plaintiffs allege that, to their knowledge, there were 5 to 10 previous incidents of the storage blocks flying out of the die press in the previous 9 years. None of these incidents had resulted in injury. With so few similar incidents, I do not believe plaintiff's injury was "certain to occur." In other words, the use of the storage blocks and die press posed no "continuously operative dangerous condition" to which employees were exposed. Cf. id. at 178, 551 N.W.2d 132 ("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 is certain to occur.").
Second, even if defendant had actual knowledge that injury was certain to occur, I do not believe that defendant "willfully disregarded" that knowledge. To the contrary, plaintiffs attached to their complaint an affidavit stating that defendant disciplined employees who improperly left the blocks in the die presses. While perhaps defendant could have done more by discontinuing use of the storage blocks entirely, that is not required to avoid liability under the intentional-tort exception of the WDCA. By instructing employees not to leave the storage blocks in the die presses and taking disciplinary action against employees who did, defendant certainly did not "willfully disregard" knowledge of the risk of injury. Travis , 453 Mich. 149, 179, 551 N.W.2d 132 (opinion by BOYLE , J.) ("[T]he employer's act or failure to act must be more than mere negligence, that is, a failure to act to protect a person who might foreseeably be injured from an appreciable risk of harm. An employer is deemed to have possessed the requisite state of mind when it disregards actual knowledge that an injury is certain to occur.").
Because plaintiffs have not alleged facts showing that an injury was "certain to occur" or that defendant "willfully disregarded" actual knowledge that injury was certain to occur, I believe summary disposition is properly granted at least under MCR 2.116(C)(4) ("The court lacks jurisdiction of the subject matter."). "[I]t is a question of law for the court whether the facts as alleged in the plaintiffs’ complaints are sufficient to constitute intentional torts." Travis , 453 Mich. at 154, 551 N.W.2d 132 (opinion by BOYLE , J.). See also MCL 418.131(1) (stating that whether an act is an intentional tort is "a question of law for the court"). Summary disposition under MCR 2.116(C)(4) is appropriate when "the affidavits, together with the pleadings, depositions, admissions, and documentary evidence, demonstrate that the court lacks subject matter jurisdiction." CC Mid West, Inc v McDougall , 470 Mich. 878, 683 N.W.2d 142 (2004) ; see also MCR 2.116(G)(5). As per the above analysis, that is the case here: plaintiffs’ complaint and attached affidavit do not demonstrate subject-matter jurisdiction because the WDCA is plaintiffs’ exclusive remedy, and plaintiffs have not alleged sufficient facts to show that the intentional-tort exception to the exclusive-remedy provision applies.
Herbolsheimer v SMS Holding Co, Inc , 239 Mich App 236, 240, 608 N.W.2d 487 (2000) ("We review questions regarding the exclusive remedy provision of the WDCA pursuant to MCR 2.116(C)(4) to determine whether the circuit court lacked subject-matter jurisdiction because the plaintiff's claim was barred by the provision.").
Because we conclude that summary disposition is warranted at least under MCR 2.116(C)(4), we take no position on whether it may be warranted under MCR 2.116(C)(7) (immunity granted by law) or (C)(8) (failure to state a claim on which relief can be granted) as well.
The majority quotes Powell-Murphy v Revitalizing Auto Communities Environmental Response Trust , 333 Mich App 234, 253, 964 N.W.2d 50 (2020), for the rule that summary disposition before discovery is inappropriate if there is "a fair likelihood of uncovering factual support for the party's position" (quotation marks and citation omitted). I question though whether that rule applies here, as it is generally applied to motions for summary disposition under MCR 2.116(C)(10) (no genuine issue as to any material fact). That general application to (C)(10) is demonstrated by the majority's two citations, which both involve motions for summary disposition under (C)(10). See id. (considering a motion under (C)(10)); Mackey v Dep't of Corrections , 205 Mich App 330, 333, 517 N.W.2d 303 (1994), citing Neumann v State Farm Auto Ins Co , 180 Mich App 479, 485, 447 N.W.2d 786 (1989) (same). Relatedly, the majority also reasons that courts have often had the benefit of discovery before deciding motions for summary disposition, citing Travis and its companion case Golec v Metal Exch Corp , as well as Ousley v Phelps Towing, Inc , 509 Mich. 875, 970 N.W.2d 673 (2022). But those cases also all involve motions under (C)(10). Travis , 453 Mich. at 180, 183, 551 N.W.2d 132 (opinion by Boyle , J.); Ousley , 509 Mich. at 875, 970 N.W.2d 673. While I am aware of an instance of the rule that summary disposition is inappropriate before discovery if there is a fair likelihood that discovery will yield facts supporting the nonmoving party being applied to a motion under MCR 2.116(C)(7) (immunity granted by law), VanVorous v Burmeister , 262 Mich App 467, 477, 687 N.W.2d 132 (2004), overruled on other grounds by Odom v Wayne Co , 482 Mich. 459, 760 N.W.2d 217 (2008), I found no instance of the rule being applied to a motion under MCR 2.116(C)(4). It is logical that the rule would not apply to motions for summary disposition under certain subsections such as (C)(8) (failure to state a claim on which relief can be granted), as those motions are decided only on the pleadings, MCR 2.116(G)(5), so no discovery would be necessary to decide such motions.
Assuming the rule does apply, however, I do not believe it precludes summary disposition before discovery in this instance. With plaintiffs alleging only 5 to 10 previous incidents in nine years, I think it very unlikely that further discovery will turn up evidence of so many more incidents involving the storage blocks that we would conclude that injury was "certain to occur."
In sum, for an employer's actions to fall under the intentional-tort exception, "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." Travis , 453 Mich. at 180, 551 N.W.2d 132 (opinion by BOYLE , J.). That is not the case here. Though a plaintiff can prove intent through indirect evidence by showing that their employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge, plaintiffs here have not done that. With so few previous incidents and no previous injuries, injury was obviously not "certain to occur"; and with defendant punishing employees who improperly left the storage blocks in the die press, defendant did not "willfully disregard" actual knowledge of the risk of injury. Therefore, the intentional-tort exception to the WDCA's exclusive-remedy provision is inapplicable and the trial court lacked subject-matter jurisdiction. Because summary disposition was therefore proper under at least MCR 2.116(C)(4), I would affirm the Court of Appeals.
Zahra and Viviano, JJ., join the statement of Clement, C.J.