Cole v. Dow Chemical Co. ( 1982 )

J. J. Kelley, J.

(dissenting). As to Count II of plaintiffs’ complaints I dissent.

Hearing a motion for summary judgment, the court assumes as true the plaintiffs factual allegations as well as conclusions reasonably drawn therefrom. Each plaintiff alleges: while employed by defendant he was exposed to a toxic substance; defendant knew that such exposure could result in sterility; defendant did not warn plaintiff of this hazard; as the result of such exposure plaintiff became sterile.

The right to procreate is basic. Procreation constitutes a fundamental human experience. The Legislature could not possibly have intended to include deprivation of an employee’s ability to procreate, accomplished in the insidious manner alleged in this case, as a personal injury or disability subject to the Worker’s Disability Compensation Act. "Personal injury” and "disability” as used in the act connote inability to perform labor, not inability to procreate. Sterility, in and of itself, is not compensable under the act.

Defendant’s alleged actions fall into the same category which had led this Court to allow the employees’ causes of action in Moore v Federal Dep’t Stores, Inc, 33 Mich App 556; 190 NW2d 262 (1971), Kissinger v Mannor, 92 Mich App 572; 285 NW2d 214 (1979), Broaddus v Ferndale Fastener Division, Ring Screw Works, 84 Mich App 593; 269 NW2d 689 (1978), Stimson v Michigan Bell Telephone Co, 77 Mich App 361; 258 NW2d 227 (1977), and Milton v Oakland County, 50 Mich App 279; 213 NW2d 250 (1973), cited by the majority.

Plaintiffs should have their day in court.