Volume XXVIII, No. 17, May 24, 2016        

From the Law Offices of Garan Lucow Miller, P.C.

From the Editor: Sarah Nadeau



By David M. Shafer

In Luce v Kent Foundry Co, 2016 Mich App LEXIS 969 (5-17-2016), the Michigan Court of Appeals held that the plaintiff-employee, whose right hand had been crushed at work, could not sue his employer for tort damages, because his claim did not fall within the “intentional tort exception” to the exclusive remedy provision in the Worker’s Disability Compensation Act (WDCA), MCL 418.131(1) [1].

The exclusive remedy provision in the WDCA provides that an employee’s exclusive remedy against an employer for injuries sustained in the course of employment is worker’s compensation benefits.  That means that an injured employee almost always gets worker’s compensation benefits and almost never gets tort damages.  Tort damages are available only when the employee can show that the employer committed an “intentional tort” that caused the employee’s injury.

The exclusive remedy/intentional tort statute, MCL 418.131(1), and case law provide that an employer may be deemed to have committed an “intentional tort” where (1) the employer had actual knowledge (2) that an injury was certain to occur (3) but the employer disregarded that knowledge; or where the employer knew that a “continuously operative dangerous condition” existed and yet failed to inform the employee about it.

In Luce, the employee worked at a large industrial machine equipped with two huge swinging doors. When a door was opened, it was stopped by a doorstop before hitting an I-beam.  However, doorstops would occasionally break off and would have to be replaced.  When a doorstop would break off, an opening door would create a pinch point at the I-beam.  In this case, the employee’s right hand was crushed during one of the times when a doorstop had broken off and had not yet been replaced.

In early August, a doorstop broke off, creating a pinch point at the I-Beam.  At that time, the employee reported the problem and specifically requested that the company’s maintenance personnel replace the broken doorstop.  Shortly thereafter, the employee sustained a near miss, when his glove got caught between the door and the I-beam.  Approximately two weeks after he had reported the problem and asked that it be fixed, his right hand was crushed in the pinch point.

The employee sued his employer for tort damages under the intentional tort exception to the exclusive remedy provision.  During depositions of employees, the company’s maintenance supervisor testified that in his opinion, it was “just a matter of time” before an injury would occur at the pinch point when a doorstop was missing and if an employee was not paying attention.

First, the employee argued that the maintenance supervisor’s testimony about an injury occurring in “just a matter of time” showed that the employer had actual knowledge that an injury was certain to occur at some point and that the employer simply disregarded that knowledge, so that his claim fell within the intentional tort exception to the exclusive remedy provision.  Second, the employee argued that he had been subjected to a “continuously operative dangerous condition” which the employer not only failed to inform him of, but also failed to fix when specifically requested to do so, so that, again, his claim fell within the intentional tort exception.

The Court of Appeals rejected both of the employee’s arguments and held that the employee’s claim for tort damages was barred by the exclusive remedy provision.

Regarding plaintiff’s first argument, the Court of Appeals held that “the evidence merely demonstrated that [the employer] was aware of a dangerous condition–it was not aware that injury was certain to occur.”  And regarding plaintiff’s second argument, the Court of Appeals held that in order for an employer to incur tort liability for having exposed an employee to a “continuously operative dangerous condition,” the employer “must have knowledge of the condition and refrain from informing the employee about it.”  And in this case, however, the employer could not be faulted for having refrained from informing the employee about the dangerous condition, because it was the employee himself who brought the dangerous condition to the employer’s attention when he asked for the missing doorstop to be replaced two weeks before his hand was crushed.  So the employee already knew about the dangerous condition.  He just should have been more careful.

The full five-page Court of Appeals opinion in Luce v Kent Foundry Co, 2016 Mich App LEXIS 969 (5-17-2016), is available Online for free at:”kent foundry”



[1] The employer in this case was represented in the Montcalm Circuit Court and in the Michigan Court of Appeals by Garan Lucow Miller partners David M. Shafer and John E. McSorley.




Garan Lucow Miller would like to introduce our
newest attorneys that have joined the Firm:


Mark F. Miller  (Troy Office)

Berton K. May  (Grand Rapids Office)

Heather Abreu  (Grand Blanc Office)

Jonathan M. Hartman   (Grand Blanc Office)

Justin A. Zink  (Detroit Office)