Shunk v. State

97 Mich. App. 626 (1980) 296 N.W.2d 129

SHUNK
v.
STATE OF MICHIGAN

Docket No. 46346.

Michigan Court of Appeals.

Decided May 20, 1980.

Sablich, Ryan, Rapaport, Bobay & Pollok, P.C., for plaintiffs.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Philip J. Smith, Assistant Attorney General, for defendants.

Before: D.C. RILEY, P.J., and R.B. BURNS and N.J. KAUFMAN, JJ.

PER CURIAM.

The trial court entered summary judgment against the plaintiffs on their complaint which alleged negligence and intentional torts on the part of the defendants. Defendants' summary judgment motion was premised upon GCR 1963, 117.2(1), i.e., that plaintiffs failed to state a claim upon which relief can be granted. The trial court granted defendants' motion thereunder on the basis that defendants were immune from tort liability for acts performed in the exercise of a governmental function, MCL 691.1407 et seq.; MSA 3.996(107) et seq. We reverse.

A motion for summary judgment brought pursuant to GCR 1963, 117.2(1) will be tested by the pleadings alone which must be considered as true. Struble v Detroit Automobile Inter-Ins Exchange, 86 Mich. App. 245, 256; 272 NW2d 617 (1978), Todd v Biglow, 51 Mich. App. 346, 349; 214 NW2d 733 (1974).

By their pleadings, plaintiffs alleged that defendants knew or should have known that exposure to PBB (polybrominate biphenyl) created an immediate and serious hazard to plaintiffs as employees of the Michigan Chemical Company, which produced PBB. In addition, plaintiffs alleged that despite defendants' knowledge of such health hazard, defendants willfully and intentionally failed to take the appropriate actions required by statute, MCL 408.1031; MSA 17.50(31).

In McCann v Michigan, 398 Mich. 65; 247 NW2d 521 (1976), in separate opinions, a majority of the Supreme Court agreed that an intentional tort was not in the exercise or discharge of a governmental function. See also Lockaby v Wayne County, 406 Mich. 65; 276 NW2d 1 (1979). Therefore, we find that plaintiffs' pleadings, taken as true, were sufficient to overcome the defense of governmental immunity and state a claim upon which relief could be granted. To hold otherwise might result in a situation where employees are forced to work in conditions known to be unsafe. This would place them squarely on the horns of a dilemma. If they refuse, they could very well be reprimanded or disciplined. If they consent, they might be jeopardizing their health.^[1]

Accordingly, we reverse and remand.

R.B. BURNS, J. (dissenting).

I must dissent.

The trial court entered summary judgment against the plaintiffs on their complaint which alleged negligence and intentional torts on the part of the defendants.

An examination of the record discloses no prejudicial error. Defendants were engaged in a governmental function and immune under MCL 691.1407; MSA 3.996(107). Also see Thomas v Dep't of State Highways, 398 Mich. 1; 247 NW2d 530 (1976).

I would affirm.

NOTES

[1] For a similar rationale, see Whirlpool Corp v Marshall, 445 U.S. 1; 100 S. Ct. 883; 63 L. Ed. 2d 154 (1980), wherein a unanimous Supreme Court upheld an Occupational Safety and Health Act regulation allowing employees to refuse to perform job assignments if they reasonably believe there is no less drastic alternative to avoid risking serious injury.