However, we note, first, that the facts in McNees are distinguishable, and, second, that McNees is not binding precedent under Administrative Order No. 1994-4. In addition, in Oaks v Twin City Foods, Inc, 198 Mich. App. 296, 298; 497 N.W.2d 196 (1993), which is binding under Administrative Order No. 1994-4, a panel of this Court questioned the outcome in McNees. The panel noted that to the extent McNees was correctly decided, it was distinguishable as a case of exceptional egregiousness.
More is required than that "the employer had actual knowledge that an injury was likely to occur at some point during the performance of a given task." Oaks v Twin City Foods, 198 Mich App 296, 297; 497 NW2d 196 (1992). "It is not enough that the employer acted recklessly and even envisioned the type of accident that did in fact occur."
In Adams, the employer removed the blade guard on a circular saw, taped the on/off switch to the "on" position, and failed to warn employees of these modifications even though employees were required to reach into the area of the unprotected blade that they could not see. Id. at 697-698; contrast Oaks v Twin City Foods, Inc, 198 Mich. App. 296, 298; 497 N.W.2d 196 (1993) (questioning Adams). Rather, the facts in this case are more akin to Glockzin v Nortek, Inc, 815 F. Supp. 1050 (WD Mich, 1992), which the Travis lead opinion cited with approval.
It is not enough that the employer knew an injury might occur at some point in time. Oaks v Twin City Foods, Inc, 198 Mich. App. 296, 297; 497 N.W.2d 196 (1993). It is also not enough that the employer knew that the press was in need of some repair.
Although plaintiffs' claims of intentional infliction of emotional distress may fall outside the exclusive remedy provision, it would seem almost impossible to establish an "intentional" injury if defendants have in fact complied with the applicable safety rules governing asbestos removal. See Oaks v Twin City Foods, Inc, 198 Mich. App. 296, 297; 497 N.W.2d 196 (1993). Here, the relevant inquiry would be whether — having followed the applicable regulations for asbestos removal — the defendants had "actual knowledge that an injury was certain to occur and wilfully disregarded that knowledge."
An employer's knowledge of general risks is insufficient to establish an intentional tort. See Oaks v. Twin City Foods, Inc., 497 N.W.2d 196, 197 (Mich. Ct. App. 1992) ("[I]t is not enough that the employer acted recklessly and even envisioned the type of accident that did in fact occur."). Dangerous conditions may form the basis of an intentional-tort claim under the Act only if the injury is "sure and inevitable."
To satisfy this definition, the claimant must show that " no doubt exists with regard to whether [an injury] will occur," Travis, 551 N.W.2d at 143 (emphasis added), and that the employer's knowledge concerns the harm that indeed occurred: "An employer's knowledge of general risks is insufficient to establish an intentional tort." Herman, 680 N.W.2d at 77; cf. Oaks v. Twin City Foods, Inc., 198 Mich.App. 296, 497 N.W.2d 196, 197 (1992) ("It is not enough that the employer acted recklessly and even envisioned the type of accident that did in fact occur."). Dangerous conditions may form the basis of a claim only if the injury is "sure and inevitable" and "only if the employer knows the condition will cause an injury and refrains from informing the employee about it."
(“Although the company was undeniably aware of the dangerousness of the situation, knowledge of the potential for the type of accident that occurred falls short of the kind of knowledge Michigan law requires.” (citing Oaks v. Twin City Foods, Inc., 198 Mich.App. 296, 296 (1992))). Based on Plaintiff's deposition testimony, Defendant's management appears to include Kuipers.
The Sixth Circuit has also made clear that “[t]he standard for establishing that an injury is ‘certain to occur' is ‘extremely high,' and requires the plaintiff to show that ‘no doubt exists with regard to whether [an injury] will occur,' Travis, 551 N.W.2d at 143 (emphasis added), and that the employer's knowledge encompasses the harm that indeed occurred. An employer's knowledge of general risks is insufficient to establish an intentional tort.” Hetterscheidt v. Aleris Specification Alloys, Inc., 687 Fed.Appx. 462 (6th Cir. 2017); see also Oaks v. Twin City Foods, Inc., 198 Mich.App. 296, 497 N.W.2d 196, 197 (1992) (“[I]t is not enough that the employer acted recklessly and even envisioned the type of accident that did in fact occur.”).
But these types of dangerous conditions fall well short of establishing a condition that is certain to cause injury when the condition is encountered. See Johnson v. Detroit Edison Co., 288 Mich.App. 688, 697–698, 795 N.W.2d 161 (2010) (stating that an employer's knowledge that an accident was likely is insufficient); Oaks v. Twin City Foods, Inc., 198 Mich.App. 296, 298, 497 N.W.2d 196 (1993) ("[I]t is not enough that the employer acted recklessly and even envisioned the type of accident that did in fact occur."). Plaintiff alternatively relies on the principle that a continuously operative dangerous condition may form the basis for a claim under the intentional-tort exception.