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STATE OF MICHIGAN
COURT OF APPEALS


KENNETH D. HESSE, Personal Representative of the Estate of JASON L. HESSE, deceased, KENNETH D. HESSE, CYNTHIA R. HESSE, and AMY R. HESSE, a minor, by her next friend, KENNETH D. HESSE, Plaintiffs-Appellees, v ASHLAND OIL INC., a/k/a ASHLAND INC., d/b/a VALVOLINE INSTANT OIL CHANGE and VALVOLINE CO., Defendant-Appellant, and CHIPPEWA VALLEY SCHOOLS, JAMES. J. RIVARD, J. MURPHY, and RUTH ANN BOOMS, Defendants.

UNPUBLISHED January 12, 2001

No. 209075 Macomb Circuit Court LC No. 95-004893 NO

Before: Owens, P.J., and Jansen and R.B. Burns*, JJ. PER CURIAM. Defendant-appellant Ashland Oil, Inc. (Ashland), appeals by leave granted from the trial court's order denying its motion for summary disposition of plaintiffs' claims for intentional tort, breach of contract, and negligent infliction of emotional distress. Ashland also challenges the trial court's order allowing plaintiffs to file a second amended complaint. We affirm in part, reverse in part and remand for further proceedings.

* Former Court of Appeals judge, sitting on the Court of Appeals by assignment. -1-

On March 3, 1995, Jason Hesse, the deceased, James P. Murphy,1 and Steven Schneider2 signed a document entitled "Chippewa Valley High School Work Study Plan." The plan provided that Ashland would hire sixteen-year-old Jason to perform "basic automotive service" and "basic cleaning services" at Ashland's automotive service center located in Clinton Township. Also on March 3, 1995, Schneider completed a standard "CA-7 Work Permit and Age Certificate" concerning Jason's employment with defendant. The work permit provided that Jason was to work a total of 23 hours per week, at an hourly wage of $5, and also provided that Jason would not work past 7:00 p.m. Additionally, the work permit provided that Ashland "must provide competent adult supervision at all times" and provided that Jason's employment "will conform to all federal, state, and local laws and regulations." Schneider, Jason, and his mother, Cynthia Hesse, signed the work permit. On March 6, 1995, defendant Ruth Ann Booms, acting as Chippewa Valley Schools' agent, signed and issued the work permit. In 1995, Ashland accepted used oil products from the general public at its automobile service centers. When customers dropped off used motor oil, they would identify the substance on a pre-printed form, record the amount they were leaving at the service center, provide their address and sign their name. The used motor oil was poured into a 1,000-gallon storage tank located in the basement of the service center. On June 2, 1995, seventeen-year-old Bradley Dryer was working at Ashland's Valvoline service center along with Jason and others. Schneider had left Dryer in charge of the business while he was away from the service center. That day, Dryer accepted approximately five gallons of a black liquid in a paint bucket from an unknown man. As Dryer explained, when Ashland's employees accepted waste products from people, they "would look at them a little bit," but generally would not smell them unless they noticed "a certain smell." Dryer did not notice anything unusual about the black liquid, although he did not smell it and did not check its viscosity; he assumed it was used motor oil. However, when he poured the liquid into the storage tank, he noticed that there had been a paintbrush and some industrial plastic wrap in the paint can, along with the black liquid. A fire investigator concluded later that the substance Dryer accepted from the unknown person actually was gasoline, not motor oil. At closing on June 2, 1995, it was Dryer's responsibility to check the level of the storage tank located in the basement. Dryer opened the top of the tank to look inside and determine its level. However, according to the fire investigator, he used the flame from his Bic lighter in order to see inside the storage tank. This caused an explosion and fire, which killed Jason, who had been standing nearby when Dryer checked the storage tank. I Defendant first argues that the trial court erred in denying its motion for summary disposition of plaintiffs' intentional tort claim under MCR 2.116C)(10). We agree.
1 2

Defendant Murphy was Jason Hesse's school counselor.

Steven Schneider was the store manager of defendant Ashland Oil's "Valvoline Instant Oil Change" automobile service center in Clinton Township.

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Summary disposition of all or part of a claim or defense may be granted when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." MCR 2.116(C)(10). When deciding a motion under (C)(10), a court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence submitted in the light most favorable to the moving party to determine whether a genuine issue of any material fact exists to warrant a trial. RitchieGamester v Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999). On appeal, the trial court's decision is reviewed de novo. Id. The question whether the facts alleged are sufficient to constitute an intentional tort within the meaning of the intentional tort exception of the Worker's Disability Compensation Act, MCL 418.131(1); MSA 17.237(131)(1), is a question of law for the court. Graham v Ford, 237 Mich App 670, 674; 604 NW2d 713 (1999). Questions of law are reviewed de novo. Hagerman v Gencorp Automotive, 457 Mich 720, 727; 579 NW2d 347 (1998). The purpose of the Worker's Disability Compensation Act ("WDCA"), MCL 418.101 et seq.; MSA 17.237(101) et seq., is to compensate an employee for loss of wage-earning capacity due to a work-related injury. Eaton v Chrysler Corp (On Remand), 203 Mich App 477, 486; 513 NW2d 156 (1994). Generally, disability benefits provided under the act are the sole remedy for work-related injuries. MCL 418.131(1); MSA 17.237(131)(1); Palazzola v Karmazin Products Corp, 223 Mich App 141, 147; 565 NW2d 868 (1997). However, pursuant to MCL 418.131(1); MSA 17.237(131)(1), [t]he 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. For purposes of the intentional tort exception of the WDCA, a "deliberate act" includes both acts and omissions and encompasses situations in which the employer "consciously fails to act." Travis v Dreis & Krump Mfg Co, 453 Mich 149, 169-170; 551 NW2d 132 (1996) (Boyle, J.); Palazzola, supra at 149. The phrase "specifically intended an injury" means that an employer must have had a conscious purpose to bring about specific consequences. When the employer is a corporation, a particular employee must possess the requisite state of mind in order to prove an intentional tort. Travis, supra at 171-172; Palazzola, supra at 149. Thus, to state a claim against an employer for an intentional tort, a plaintiff must show that the employer deliberately acted or failed to act with the purpose of inflicting an injury upon the employee. Travis, supra at 172. Where there is no direct evidence of intent to injure, intent may be inferred where a plaintiff can show that "the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge." MCL 418.131(1); MSA 17.237(131)(1). "Actual knowledge" means that constructive, implied or imputed knowledge is not enough; nor is it sufficient to show that the employer should have known, or had reason to believe, injury was certain to occur. Travis, supra at 173; Palazzola, supra at 149. A plaintiff may establish a

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corporate employer's actual knowledge by showing that a supervisory or managerial employee had actual knowledge that an injury would follow from what the employer deliberately did or did not do. Travis, supra at 173-174; Palazzola, supra at 149. To show that "an injury was certain to occur," a plaintiff cannot rely on the laws of probability, the mere prior occurrence of a similar event, or conclusory statements of experts. Further, an employer's awareness that a dangerous condition exists is simply not enough; a plaintiff must show that the employer was aware injury was certain to result from what the actor did. Travis, supra at 174-178; Palazzola, supra at 149150. To show that the employer "willfully disregarded" actual knowledge that an injury was certain to occur, a plaintiff must prove that the employer's act or failure to act was more than mere negligence, e.g., failing to protect someone from a foreseeable harm. Travis, supra at 178179; Palazzola, supra at 150. Applying these principles to the facts of this case, we agree with Ashland's contention that the trial court erred in denying its motion for summary disposition of plaintiffs' intentional tort claim. There being absolutely no direct evidence that defendant or its managerial employees specifically intended to injure Jason Hesse, the question is whether the evidence, viewed in a light most favorable to plaintiffs, showed that Ashland or its managerial employees, specifically Bradley Dryer,3 disregarded actual knowledge that an accident was certain to occur. The evidence does not show this. First, plaintiffs contend that Ashland's hiring and training policies insured that the accident in question was certain to occur. However, the evidence does not support this conclusion. Ashland hired and trained minors and other employees to accept used motor oil and antifreeze from the public at large so that these substances could be recycled. Defendant trained employees to identify used motor oil by sight and smell. Pursuant to their training, employees were instructed to refuse substances purported to be used motor oil if they appeared to be too thin or too thick, or if they had odors that would indicate they were something other than used motor oil. Moreover, customers who returned used oil products to defendant's oil change centers were required to complete a pre-printed form to identify themselves and the substances they were returning. Thereafter, the used motor oil was stored in a 1,000-gallon storage tank located in the basement of the service center. Although it is clear from the evidence that Ashland's procedures created a risk that its employees, whether minors or adults, might accidentally accept combustible petroleum products or other volatile substances from members of the public at large and place them in the storage tank, it is just as clear that Ashland took precautions to prevent this from happening by training its employees to ascertain the identity of used automobile waste products. Evidence that Ashland was aware of the potential for danger is insufficient to show actual knowledge of certainty of injury, especially because Ashland took precautions to guard against that risk. See Bazinau v Mackinac Island Carriage Tours, 233 Mich App 743, 755-756; 593 NW2d 219 (1999). Plaintiffs have failed to submit further evidence to show that Ashland's It is not clear that Dryer, by being left "temporarily in charge" at the service center, can be considered a "managerial employee." However, because we view the evidence in a light most favorable to the nonmoving party, Ritchie-Gamester, supra at 76, for the purposes of this decision

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