House v. Johnson Controls, Inc.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0682n.06
Filed: September 19, 2007
No. 06-1726
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PAUL HOUSE and MICHELLE HOUSE, )
)
Plaintiffs-Appellants, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JOHNSON CONTROLS, INC., ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
Before: SUTTON and McKEAGUE, Circuit Judges; FORESTER, District Judge.*
SUTTON, Circuit Judge. After Paul House was injured at work, he filed a tort action against
his employer, Johnson Controls. The district court granted summary judgment in favor of the
company, holding that Michigan’s Worker’s Disability Compensation Act barred the claim. We
affirm.
I.
At Johnson Controls, House often worked with a team of employees that performed a
procedure known as “die-flipping.” A die is a large piece of equipment that in this case weighed
between 5,000 and 25,000 pounds. Die-flipping requires employees to connect the die to a steel I-
*
Judge Karl S. Forester, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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House v. Johnson Controls, Inc.
beam with a cable, permitting them to hoist the I-beam (and thus the die) with a vehicle. Once the
die has been lifted, either it will flip over of its own accord or the employees must use another
vehicle to flip the die manually. Once the die flips, the original vehicle lowers the I-beam, which
allows the die to land back on the ground.
Before his accident, House had participated in many die-flipping operations and seen many
others. Based on these experiences, he came to the belief that the process was unnecessarily
dangerous; that the company emphasized “get[ting] it done as quick[ly] as possible” at the expense
of precaution; and that there was no formal procedure for safely performing the task. House
expressed these concerns to his immediate supervisors—Carl Hawkins, Pat O’Hara and Chris
White—and suggested that Johnson Controls should purchase specialized die-flipping equipment
and establish a protocol for the procedure. Acknowledging the danger, House’s supervisors
conveyed these requests to members of the plant’s upper management, but they did not take any
action in response.
On April 4, 2002, House and other employees attempted to flip a die. Normally, the team
used a special die cart to hoist the die, but on this occasion they used a large forklift known as a “hi-
lo.” The team successfully picked up and flipped the die, but it became stuck when they tried to rest
it flat on the ground. Observing the process from a safe distance, House motioned to the vehicle
operator to stop and ran across the front of the vehicle “to the other side to see if it was hung up on
something.” JA 88. Suddenly, “[s]omething snapped” or “broke loose,” causing the I-beam to fly
off the forklift and to bounce off the cement and onto House’s leg. Id. After the accident, Hugh
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Guingrich, the plant’s human resources manager, told House that the accident never would have
happened had upper management approved the purchase of new equipment. House’s injury made
him eligible to receive workmen’s compensation under Michigan law without regard to whether
Johnson Controls was responsible for the accident. Mich. Comp. Laws § 418.301(1).
House filed a tort claim against Johnson Controls in state court, contending that the company
intentionally caused the accident when it refused to purchase equipment that would have made the
procedure safer. The company removed the action to federal court on diversity grounds, then moved
for summary judgment, arguing that House could not satisfy the requirements of an intentional-tort
action and that Michigan’s worker’s compensation law barred a negligence claim. In response,
House proffered the affidavit of his supervisor, Carl Hawkins, who said (1) that he had “actual
knowledge . . . [that] an injury would occur to employees involved in the die flipping process”
because of “the lack of a standardized procedure, coupled with the lack of appropriate training,” JA
143, and (2) that Johnson Controls, “despite being aware of the certainty of injury, . . . deliberately
failed to take steps to avoid said injuries,” JA 144.
The district court granted Johnson Controls’ motion, reasoning that House could not show
an intentional tort and that Michigan’s worker’s compensation law foreclosed the action. House
appealed, requiring us to give fresh review to the district court’s decision and to apply the same
summary-judgment standards that the district court applied. Thomas v. Miller, 489 F.3d 293, 297
(6th Cir. 2007).
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II.
The Michigan Worker’s Disability Compensation Act provides an exclusive compensation
remedy for employees injured on the job, except when the injury stems from an intentional tort.
Mich. Comp. Laws § 418.131; see Travis v. Dreis & Krump Mfg. Co., 551 N.W.2d 132, 138 (Mich.
1996). The statutory exception applies only “when an employee is injured as a result of a deliberate
act of the employer and the employer specifically intended an injury.” Mich. Comp. Laws
§ 418.131(1); see also Herman v. City of Detroit, 680 N.W.2d 71, 76 (Mich. Ct. App. 2004) (per
curiam). An injured employee may establish the specific intent to injure in one of two ways: (1) by
demonstrating that the employer “made a conscious choice to injure an employee and ha[s]
deliberately acted or failed to act in furtherance of that intent,” Palazzola v. Karmazin Prods. Corp.,
565 N.W.2d 868, 873 (Mich. Ct. App. 1997), or (2) by showing that “the employer had actual
knowledge that an injury was certain to occur and willfully disregarded that knowledge,” Mich.
Comp. Laws § 418.131(1) (emphasis added); see also Travis, 551 N.W.2d at 138.
House disclaims any effort to rely on the first method of showing intent, admitting that no
one at Johnson Controls made a conscious effort to injure him. At issue is the second method of
establishing intent, which the Michigan Supreme Court has construed narrowly. To prove “actual
knowledge that an injury is certain to occur,” the employer’s knowledge must be actual, not
constructive or implied. Travis, 565 N.W.2d at 143. An effort to show that “[a]n incident [was]
‘certain to occur,’” moreover, “cannot be established by reliance on the laws of probability, the mere
occurrence of a similar event, or conclusory statements of experts.” Giles v. Ameritech, 660 N.W.2d
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72, 73 (Mich. 2003) (summarily reversing a court of appeals’ decision denying summary judgment
to an employer whose employee was injured while using a torch in a hole with a natural gas line).
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., 497 N.W.2d 196, 197 (Mich. Ct. App. 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.” Alexander v. Demmer Corp., 660 N.W.2d 67, 67 (Mich. 2003).
To be “known” and “certain,” an injury must spring directly from the employee’s duties and
the employee cannot have had the chance to exercise individual volition. In cases where the
employee makes a decision to act or not act in the presence of a known risk, the injury is not certain
because the employer cannot know what the employee’s reaction will be in advance and the
employee is able “to take steps to keep from being injured.” Travis, 551 N.W.2d at 145. Just as
intervening actions by third parties can negate proximate causation, see Milwaukee & St. Paul Ry.
Co. v. Kellogg, 94 U.S. 469, 475 (1876), so an injury cannot be certain to occur when the individual
takes affirmative, deliberate action that brings about the harm, see Palazzola, 565 N.W.2d at 874
(holding no knowledge of certain injury from harmful vapors where a “decision to clean the tank was
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made on the spot” by a nonsupervisory employee); Herman, 680 N.W.2d at 77 (holding no
intentional tort where death from electrocution “was the result of decedent’s momentary and tragic
lapse in judgment”); cf. Travis, 551 N.W.2d at 145 (noting with approval a finding of intentional tort
against an employer that hired employees who could not speak English and therefore could not take
precautions in light of the warning labels on the chemicals with which they were working). The only
situation where the Michigan Supreme Court has allowed a claim to survive summary judgment
since the Michigan legislature created the statutory intentional tort exception was in Golec v. Metal
Exchange Corp., 551 N.W.2d 132, 147 (Mich. 1996), the companion case to Travis. The court in
that case found knowledge of certain harm because the employer had ordered the plaintiff to go back
to placing scrap metal with combustible aerosol cans into a furnace—even after he had just been
injured from a small explosion. Id. at 137, 147; see also Palazzola, 565 N.W.2d at 876 (suggesting
that the employer’s conduct must be “egregious”).
Measured by these Michigan cases, House has failed as a matter of law to show that Johnson
Controls had “actual knowledge that an injury was certain to occur.” Mich. Comp. Laws
§ 418.131(1). His evidence at most establishes that the company knew of the risk of harm, not that
it had “actual knowledge” of this danger and not that it had “no doubt” that this accident would
occur. On the day of the incident, House made a voluntary decision to leave the safety zone to
investigate the problem. House knew that this procedure was generally dangerous and had made
numerous complaints about the process, but he still decided to move out of the safety zone to inspect
the die. Johnson Controls did nothing to inhibit House’s ability to take precautions, and no one
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disputes that the bouncing I-beam would not have struck him had he remained at a safe distance.
House’s independent exercise of discretion in moving out of the safety zone negates any knowledge
of a “certain” harm of this kind of accident.
Even if House had not taken this independent action, moreover, he could not show actual
knowledge that the injury would occur. 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. See Oaks, 497 N.W.2d at 196. At most,
House’s principal piece of evidence—the affidavit by supervisor Hawkins—creates a fact dispute
about negligence relating to the die-flipping procedure, not intent as defined by Michigan case law.
Hawkins, it is true, said “that despite being aware of the certainty of injury, Johnson
Controls . . . deliberately failed to take steps to avoid said injuries.” JA 144. But no one to this day
knows how the accident in fact happened and why the I-beam suddenly flew off the forklift.
Hawkins’ knowledge that injury was “certain to occur” at some point shows only his awareness that
injury was bound to occur due to the general risk of the activity, not that injury was inevitable and
certain to occur when and how it did. Because the affidavit necessarily speculates about the risk of
future harm, it cannot satisfy the strict standard of certainty—of no doubt—that the Michigan courts
established in Travis and its progeny. Herman, 680 N.W.2d at 77.
House’s evidence of employer knowledge, it bears adding, is far less compelling than the
evidence presented in several claims summarily rejected by the Michigan courts. In Alexander, the
plaintiff was injured while cleaning pinch rollers when there had been four prior injuries from the
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rollers. See Alexander v. Demmer Corp., No. 230417, 2002 WL 1921900, at *2 (Mich. Ct. App.
Aug. 20, 2002) (per curiam). The Michigan Supreme Court summarily reversed the court of appeals
and granted summary judgment for the employer. Alexander, 660 N.W.2d at 67. Similarly, in Joliff
v. Detroit City Dairy, Inc., 664 N.W.2d 211 (Mich. 2003), the Michigan Supreme Court summarily
granted summary judgment where the employer had twice ordered the employee—over his
protest—to drive a pallet jack that had no brakes, see Joliff v. Detroit City Dairy, Inc., No. 232530,
2002 WL 31012627, at *1–2 (Mich. Ct. App. Sept. 6, 2002); see also Giles, 660 N.W.2d at 73
(summarily granting summary judgment where the employee was instructed to use a torch to splice
telephone wires in a hole with a natural gas line); Menzel v. Light Metals Corp., 627 N.W.2d 601,
601 (Mich. 2001) (summarily granting summary judgment where the employer knew that a press was
double cycling and that a safety device had failed); Gray v. Morley, 596 N.W.2d 922, 923–25 (Mich.
1999) (holding that there could be no intentional tort even where the employer swerved violently in
his truck while the employee was in the bed in order to scare the plaintiff); Bock v. General Motors
Corp., 637 N.W.2d 825, 829–30 (Mich. Ct. App. 2001) (per curiam) (holding that GM did not have
actual knowledge of certain injury from employee exposure to highly concentrated chemicals
because scientific experiments establishing injuries in animals establish only a probability of injury
in humans). Here, where House had executed the die-flipping procedure many times without injury,
he presents no evidence as to why this injury was preordained rather than merely probable. House
cannot show that his employer knew that injury was certain to occur, and we therefore cannot infer
the specific intent to injure necessary for his claim to survive.
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III.
For these reasons, we affirm.
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