Howard-Johnson v. V & S Detroit Galvanizing, LLC

Filing 66

OPINION AND ORDER denying 28 Defendant's Motion for Summary Judgment. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIANA HOWARD-JOHNSON,
Plaintiff,

Case Number 10-13870
Honorable David M. Lawson

v.
V&S DETROIT GALVANIZING, LLC,
Defendant.
_____________________________________________/

OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Darryl Johnson was fatally injured in an industrial accident while he was working for his
employer, defendant V&S Detroit Galvanizing, LLC. His estate has sued the employer, alleging that
its conduct has brought it within the so-called “intentional tort exception” to the exclusive remedy
provision in Michigan’s Worker’s Disability Compensation Act. The defendant filed a motion for
summary judgment, now pending before the Court, arguing that the facts in the case developed so
far do not support the plaintiff’s claim, and therefore it is entitled to a judgment as a matter of law.
After reviewing the record and the parties’ briefs, and hearing oral argument on September 12, 2012,
the Court concludes that material fact issues preclude summary judgment. The motion, therefore,
will be denied.
I.
V&S Detroit operates a job-shop hot dip galvanizing plant located in Redford, Michigan. It
accepts contracts from various customers to galvanize all manner of metal items, ranging from small
washers to large structural fixtures used in road construction. Hot dip galvanizing is a process in
which a zinc coating is applied to a steel or iron part to protect it from rust and corrosion.

At the Redford plant, metal items to be galvanized are dipped into a vat that contains the
coating in liquid form. Multiple parts are dipped at the same time. The parts are hung by wires from
a long, steel I-beam called a “rack.” The wires thread through holes drilled in the rack, and workers
— such as Darryl Johnson — tie the parts to the wires. When the workers perform that task, the
rack is set upon tall steel stands. The rack stands look like trestles; each end of the rack is set on a
stand while the laborers work under it to attach the parts. Each rack holds between 5,000 and 15,000
pounds of steel parts when loaded. Sometimes, two racks are set on a single pair of stands so that
twice as many parts can be hung.
The accident in this case occurred on November 3, 2009. Darryl Johnson was working in
the racking department loading metal parts onto one of two racks that were supported by a single
pair of stands. Johnson and his coworkers were loading the second of the two racks while another
worker — a crane operator — began to lift the first rack and move it away using the large overhead
crane. After the first rack was lifted off of the rack stands, the weight of the second rack still resting
on the other side of the stands caused the rack stands to lean, and then to tip. As the rack stands
started to tip over, the employees began to run. Johnson saw that the rack was falling and tried to
get out of the way, but could not escape. The rack with parts attached fell and pinned him to the
floor, crushing him. Johnson died soon after from his injuries.
That was not the first time an accident of that sort occurred at the Redford facility. In
October or November 2008, Lazar Ostravan was injured while working in the racking department.
A rack fell on him as it was being hoisted by a crane. One end of the rack remained on its stand, but
the other end fell but was caught by the forks of a hi-lo, which stopped that end from hitting the
ground. Ostravan was unconscious for ten minutes after the accident. He suffered a broken leg.

-2-

Other plant employees also testified to “near misses” — that is, a rack falling off a stand that did not
injure a worker — on another 20 to 40 occasions.
After Darryl Johnson was killed, his personal representative, Tiana Howard-Johnson, filed
suit in the Wayne County Circuit Court on August 25, 2010. V&S Detroit removed the case to this
Court. After a period of discovery, V&S Detroit filed its motion for summary judgment.
II.
It is well settled that summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “The party bringing the summary judgment motion has the initial burden of
informing the district court of the basis for its motion and identifying portions of the record that
demonstrate the absence of a genuine dispute over material facts.” Alexander v. CareSource, 576
F.3d 551, 558 (6th Cir. 2009) (citing Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal,
Inc., 276 F.3d 845, 848 (6th Cir. 2002)). “Once that occurs, the party opposing the motion then may
not ‘rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact’
. . . .” Ibid. (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)). Instead,
the party opposing a motion for summary judgment must designate specific facts in affidavits,
depositions, or other factual material showing “evidence on which the jury could reasonably find
for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). If the non-moving
party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof,
summary judgment is clearly proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “Thus,
the mere existence of a scintilla of evidence in support of the [opposing party]’s position will be
insufficient; there must be evidence on which the jury could reasonably find for the [opposing

-3-

party].” Highland Capital, Inc. v. Franklin Nat’l Bank, 350 F.3d 558, 564 (6th Cir. 2003) (quoting
Anderson, 477 U.S. at 251-52) (internal quotation marks omitted).
Darryl Johnson’s estate received worker’s compensation benefits as a result of his workrelated death. Under Michigan law, for a worker injured on the job, worker’s compensation benefits
are the “exclusive remedy” against an employer. Mich. Comp. Laws § 418.131(1). But an
exception to that rule has developed over the years.
Michigan’s workers’ compensation law, first enacted in 1912, altered the conventional tort
reparations scheme recognized by the common law by providing a schedule of compensation for
workers injured or killed on the job. To recover, the worker did not have to prove fault, and the
employer was held immune from tort liability and damages. Initially, the program was voluntary;
workers and employers could opt out. See Mich. Pub. Act P.A. 10, part I, §§ 5, 8 (1st Ex. Sess.
1912); Dagenhardt v. Special Mach. & Engineering, Inc., 418 Mich. 520, 546-47 & n.26 & 27, 345
N.W.2d 164, 176 & n.26 & 27 (1984) (Levin, J., dissenting). The program was made mandatory
in 1943, and the exclusive remedy provision was firmly in place. Ibid. The exclusive remedy
provision states that compensation allowed under the act “shall be the employee’s exclusive remedy
against the employer for a personal injury or occupational disease [arising out of and in the course
of employment].” Mich. Compiled Laws § 418.131(1).
In 1986, the Michigan Supreme Court carved out an exception to that immunity for
intentional torts, when it allowed a worker to sue his employer for intentionally exposing him to
“agent orange” without warning him of the toxic properties of the chemical. Beauchamp v. Dow
Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986). The Michigan legislature reacted quickly to

-4-

the Beauchamp decision by enacting the version of the statute in effect today. See Travis v. Dreis
and Krump Mfg. Co., 453 Mich. 149, 164-65, 551 N.W.2d 132, 139 (1996). The statute now reads:
The right to the recovery of benefits as provided in this act shall be the employee’s
exclusive remedy against the employer for a personal injury or occupational disease.
The 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.
Mich. Comp. Laws § 418.131(1).
The Michigan Supreme Court has recognized that the intentional tort exception — so called
— does not actually require an injured worker to prove a true intentional tort. Travis, 453 Mich. at
168, 551 N.W.2d at 141. Certainly, the exception encompasses employer conduct that comprises
an actual intent to injure (“. . . deliberate act . . . the employer specifically intended an injury.”). But
a plaintiff also may come within the exception if he can show a somewhat relaxed scienter: that the
employer committed a deliberate act with actual knowledge that an injury was “certain to occur.”
Gray v. Morley, 460 Mich. 738, 745, 596 N.W.2d 922, 926 (1999). And the Michigan courts equate
action with a failure to act as well. Travis, 453 Mich. at 170, 551 N.W.2d at 142 (“[W]e construe
the phrase ‘deliberate act’ to include a situation in which an employer consciously fails to act.”).
It is this latter aspect of the statute upon which the plaintiff in this case relies.
The cases that interpret the “deemer” clause (“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.”) all require a plaintiff to prove the following proposition: that the
employer actually knows that if it orders employees to perform an assigned task in a specific way,
an injury will occur; and despite that certain knowledge, the employer orders employees to proceed
-5-

anyway. Proof of knowledge that an injury probably will result is not enough. Travis, 453 Mich.
at 174, 551 N.W.2d at 143 (“[T]he laws of probability, which set forth the odds that something will
occur, play no part in determining the certainty of injury.”). The plaintiff must demonstrate
inevitability: that “no doubt exists with regard to whether it will occur.” Ibid. The employer must
know both (1) that a dangerous condition exists; and (2) that injury is certain to occur because of
that condition. Id. at 176, 551 N.W.2d at 144. The occurrence of an injury must be a matter of when,
not if.
An illustration of that point is found in comparing the two cases consolidated on appeal in
Travis. In the first, Aimee Travis was injured when a wire press “double cycled” while she was
removing an item from the press. She was a novice press operator and had not been informed that
the press was double cycling. The court found that the employer had actual knowledge of the
dangerous condition, because an employee had told his supervisor that morning that the machine
was double cycling and should be shut down. But the plaintiff failed to show that the employer
knew that an injury was certain to occur because the machine only double cycled intermittently, and
the same supervisor had adjusted it that morning in an attempt to cure the double cycling problem.
In the past, such adjustments had allowed the machine to function for a day or two without double
cycling again. The court noted that the supervisor, after adjusting the machine, had operated it
himself before assigning the plaintiff to work on it. The court also observed that the “plaintiff was
not required to confront a continually operating dangerous condition.” Id. at 182, 551 N.W.2d at
146. The court concluded that Travis did not offer facts showing that her injury was certain to
occur.

-6-

Compare the companion case in Travis. There, plaintiff Stanislaw Golec was at work
loading scrap metal into a furnace using a tractor. He told his supervisor that the scrap contained
aerosol cans, that the scrap was wet, and that when putting one load into the furnace earlier, a small
explosion had occurred, which caused the plaintiff a minor injury. The supervisor knew that the
scrap contained aerosol cans and water, and that those items could cause explosions when the scrap
was loaded into the furnace. Despite that knowledge, the supervisor ordered the plaintiff to continue
working and to load all of the scrap, which the plaintiff understood to include the aerosol cans. At
some point, as the plaintiff was placing a load in the furnace, a large explosion occurred that injured
him severely. The plaintiff testified that he had loaded the scrap in the way he was trained, but that
the explosion occurred anyway. The court found that the employer knew an injury was certain to
occur, despite the fact that not every load produced an explosion, because each load of scrap could
have contained either an aerosol can or water, and thus had the potential to explode. Id. at 186-87,
551 N.W.2d at 148-49.
The employer’s knowledge of the certainty of injury must be actual. “[C]onstructive,
implied, or imputed knowledge is not enough. Nor is it sufficient to allege that the employer should
have known, or had reason to believe, that injury was certain to occur.” Travis, 453 Mich. at 173,
551 N.W.2d at 143. “A plaintiff may establish a 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.” Id. at 173–74, 551 N.W.2d at 143. “[T]o impute
an intent to injure to the employer, a plaintiff is required to show that a particular employee of the
defendant possessed knowledge of facts from which it could be concluded that this employee had
the requisite intent to injure.” Palazzola v. Karmazin Prods. Corp., 223 Mich. App. 141, 152, 565

-7-

N.W.2d 868, 874 (1997). Although prior instances of injury are relevant to the questions of
knowledge and certainty, alone they do not suffice to show that an injury was certain. Travis, 453
Mich. at 174, 551 N.W.2d at 143. (“[J]ust because something has happened before on occasion does
not mean that it is certain to occur again. Likewise, just because something has never happened
before is not proof that it is not certain to occur.”).
In this case, the crux of the plaintiff’s liability theory is that V&S Detroit exposed its
employees who hung parts from the racks to a continuously operative dangerous condition that it
knew would inevitably result in an injury. The plaintiff contends that placing two racks on a pair
of stands created such an instability that tip-overs were common and injuries were certain to follow.
The Michigan Supreme Court held in Travis that the plaintiff could make a showing of actual
knowledge and certainty where (1) the employer subjects an employee to a continuously operative
dangerous condition (2) that the employer knows will cause an injury, and (3) the employer refrains
from informing the employee about the dangerous condition so that he is unable to take steps to keep
from being injured. 453 Mich. at 178, 551 N.W.2d at 145. However, “[a] continuously operative
dangerous condition may form the basis of a claim under the intentional tort exception only if the
employer knows the condition will cause an injury and refrains from informing the employee about
it.” Giles v. Ameritech, 468 Mich. 897, 897, 660 N.W.2d 72, 72 (2003). The Michigan Court of
Appeals explained that this standard does not require a showing of failure to inform if the employee
already knows of the hazard; but in such a case the plaintiff would have to show that the employer
(1) knew that employees were taking insufficient precautions to protect themselves against the
inherent danger of the condition; and (2) did nothing to remedy the situation. Johnson v. Detroit
Edison Co., 288 Mich. App. 688, 704, 795 N.W.2d 161, 172 (2010).

-8-

As an example of a continuously operative dangerous condition, the Travis court cited a case
in which (1) workers at a film reprocessing plant were exposed to hydrogen cyanide gas fumes that
arose from chemical vats; (2) the employer knew of the dangers of the gas due to plain warnings on
the containers for the chemicals; and (3) the employer hired only workers who could not speak or
read English, and did not inform them of the dangers of the gas, despite their repeated complaints
about the fumes. The corporate officers involved were convicted of manslaughter for their conduct,
which resulted in one death and several serious injuries. Travis, 453 Mich. at 177, 551 N.W.2d at
145.
The evidence in this case would permit a reasonable jury to conclude that V&S Detroit knew
the racks and stands were dangerous, most likely all the time. Workers complained about the racks
and near misses and asked management to bolt the racks to the floor. Dennis Landers — who
worked for V&S Detroit off and on between 1993 and 2010, including later tenure as a supervisor
— and Corey Lawson — who worked as a plant supervisor and operations manager — both testified
that as supervisors they knew the racks were unstable and had asked for the racks to be bolted down.
Lawson said that when he started at V&S Detroit, the rack stands had only one rack holder each.
At some point the stands were changed to hold two racks, in order to increase productivity. After
the change to double rack holders, it was clear that the racks became dangerous, because they could
topple over. Darryl Maxey, a sixteen-year veteran of the Redford plant, testified that before the rack
stands were bolted down, the stands could tip and fall over if one rack was removed while another
loaded rack remained on the stand. And there is testimony that shows that (1) Gary Snyder, the
maintenance supervisor for V&S Detroit’s parent company, knew about the hazzard and had made
plans to bolt the racks down in order to address those problems prior to Johnson’s death; and (2)

-9-

plant manager Thomas Bottorff himself only narrowly escaped injury when a rack tipped over while
he was standing near it.
Whether there is evidence that the defendant knew that an injury was certain to occur
presents a closer question. The Sixth Circuit has discussed the requisite level of proof under
Michigan Complied Laws § 418.131(1). In Upsher v. Grosse Pointe Public School System, 285 F.3d
448 (6th Cir. 2002), the court held that the plaintiffs, custodians who were exposed to asbestos in
the workplace, failed to make the required showing under the continuously operative dangerous
condition standard. The employer wanted carpet removed from an area in a school, but a contractor
hired for the job refused to proceed because of concerns that a machine scraper might disturb
asbestos tiles under the carpet. So the school ordered custodial staff to complete the removal by
pulling up the carpet. When they pulled the carpet up, the plaintiffs found some tiles stuck to the
back and decided to hammer, scrape, and pulverize the tiles to remove them. The employer did not
provide any respirators, particulate vacuums, or air monitoring for the removal operation. Some of
the plaintiffs had received two hours of asbestos awareness training, but none had completed the
fourteen hours of training that federal regulations require prior to conducting any work which
involves disturbing asbestos containing materials. The court found that the failure to provide proper
training and safety equipment may have been grossly negligent, but it did not suffice to show that
supervisors knew about the dangers and refrained from informing the workers about them, or that
the employer had willfully disregarded actual knowledge of a condition certain to cause injury. Id.
at 455-56.
In House v. Johnson Controls, Inc., 248 F. App’x 645 (6th Cir. 2007), the court held that the
plaintiff could not show actual knowledge of an injury certain to occur. The plaintiff was working

-10-

on a die-flipping operation with coworkers, where large 5,000 to 25,000 pound steel dies were lifted
via an I-beam attached to a forklift, pushed by another vehicle in order to flip them over, then
lowered to the ground. The die in this case did not flip over, and the plaintiff left a designated safe
distance zone to see if it was hung up on something. For unknown reasons, the die broke loose from
the I-beam, causing the beam to swing around and hit the plaintiff in the leg. The court held that the
employer could not have known that an injury was certain to occur because it did nothing to inhibit
the employee from taking precautions that would have saved him (i.e. remaining in the designated
safe area), and the employer could not know whether an employee would choose to leave the safe
area to investigate a problem with the process. The court was not impressed by a supervisor’s
affidavit that stated that he was sure someone would get hurt at some point during the process
because it was dangerous, the workers lacked special equipment designed for die flipping, and there
were no standard procedures for workers to follow. A critical deficiency, in the court’s view, was
the absence of any proof of the actual cause of the accident. Id. at 648-49.
The Sixth Circuit in House surveyed a number of decisions applying Michigan Compiled
Laws § 418.131(1) and Travis, finding that “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.” Id. at 649. In Alexander v. Demmer Corp., 468 Mich. 896, 660 N.W.2d 67
(2001), the plaintiff was injured while cleaning pinch rollers when there had been four prior injuries
from the 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. Similarly, in Joliff v. Detroit City Dairy,
Inc., 468 Mich. 919, 664 N.W.2d 211 (2003), the court summarily reversed and granted summary

-11-

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). In Giles v. Ameritech, 468 Mich. 897, 660 N.W.2d 72 (2003),
the court summarily reversed and granted summary judgment where the employee was instructed
to use a torch to splice telephone wires in a hole with a natural gas line. In Menzel v. Light Metals
Corp., 464 Mich. 853, 627 N.W.2d 601 (2001), the court summarily reversed and granted summary
judgment where the employer knew that a press was double cycling and that a safety device had
failed.
A central theme of these cases is that when an employer gives a worker discretion in
deciding how to accomplish a task, and the employee chooses a dangerous option, the employer
cannot be “certain” that an injury will follow. As the Sixth Circuit explained, “[t]o 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.’ ” House, 248 F. App’x at 648.
Here, the defendant points to evidence that workers were instructed to clear the area when
a rack was to be hoisted by a crane operator. After Ostravan’s accident, V&S Detroit sent crane
operators to additional training and held safety meetings at which the need to clear areas before
crane lifts was discussed. Despite the testimony that safety did not come first at V&S Detroit, and
her assertion that V&S Detroit “implicitly authorized” workers to ignore safety policies in order to
boost production, the plaintiff has offered no evidence that any supervisor actually told workers

-12-

directly to ignore the stated policies. And it appears that several employees did take care to clear
areas or to make sure areas were cleared before a lift occurred, and that as a result they did not have
an accident with the racks.
But just because the lift operations were performed safely on some occasions does not defeat
the proposition that an injury was inevitable. A central point in each of the cases where Michigan
courts have found an intentional tort is that, when the employee did exactly as he or she was told,
the dangerous condition he or she faced still caused an unavoidable injury. In Golec, for example,
if the employee’s testimony was believed, even though he loaded the scrap exactly as directed, each
load had the potential to cause a dangerous explosion, and nothing he could have done would have
allowed him to avoid injury from the explosion. Likewise in Fries v. Mavrick Metal Stamping, Inc.,
285 Mich. App. 706, 777 N.W.2d 205 (2009), the press operator had no idea that her loose clothing
would cause the press to cycle, and when that occurred, there was no way for her to remove her
hands in time to avoid an injury. And in Johnson v. Detroit Edison Co., 288 Mich. App. 688, 795
N.W.2d 161 (2010), if the employees did exactly as they were told, nothing they could have done
would have avoided injuries from ash blowback due to the defective boilers, because the employees
lacked the safety equipment that might have protected them.
In this case, there is no evidence presented that the plaintiff attended any of the safety
meetings or otherwise was informed of the plant’s policy to clear an area when a rack was to be
lifted. But even if such evidence exists, there are facts from which a jury could conclude that the
custom in the plant was for parts hangers to continue wiring parts to the second rack on a double
stand when the loaded first rack was being lifted. Corey White, a five-year employee, testified that
there were policies and procedures in the racking department regarding safety, but prior to Johnson’s

-13-

death, the policy that workers had to clear the area before the crane lifted a rack was never enforced.
Before Johnson’s death, managers watched crane operators lift racks over the workers heads often
without saying anything; workers had lifted loads off the rack stands and over Bottorff’s head many
times, and Bottorff did nothing about it. If a policy did exist requiring workers to clear the area
during lifts, it was not enforced. Landers testified that at the time of Ostravan’s accident, it was
“kind of a practice to just keep working,” and “nobody like scattered when the other guy was lifting
a rack.” Def.’s Mot. Summ. J., Ex. D, Landers dep. at 53. He said it was common practice in the
racking department for workers to keep tying up parts on one rack while another rack was lifted and
moved overhead.
Landers also explained that moving a rack took several minutes, and it would have slowed
down the work in the racking department if workers moved away from the racks every time one was
lifted. The plant manager and operations manager “pretty much said” that the safety practice was
for workers to move away, but the work also had to get done. Id. at 78. Landers testified that the
plant manager and operations manager told everybody, “We need to keep production numbers up.”
Id. at 79. Maxey also testified that supervisors and managers often told workers to “hang more
weight” on the racks to increase production. Pl.’s Reps. to Mot. Summ. J., Ex. 7, Maxey dep. at
26–27. Workers in racking sometimes got into heated arguments with supervisors over the danger
of overloading the racks, but management always responded by saying, “Just do what we tell you
to do.” Id. at 27.
The danger appears to have originated when V&S Detroit changed to the practice of loading
two racks perched on a single pair of stands. The purpose of that practice was to increase
productivity — a purpose that would be defeated by clearing the area of parts hangers when a loaded

-14-

rack was lifted. A jury could conclude that Johnson was injured while he was performing his work
task exactly as his employer told him.
A jury could find the inevitability of the injury from the evidence of the occurrences of other
falling racks, which appears to have been common. Corey Lawson saw racks lean, tilt, and topple
over when a loaded rack was lifted off of the stands, due to the uneven weight from the partly loaded
rack that the stands were still supporting. Lawson testified that on some of the times that he saw
racks or stands topple over, people got hurt. Lawson knew that racks could slide out of the holders
on the rack stands, either because the racks shifted due to uneven weight, or because a rack stand
got twisted out of alignment and no longer supported the rack on one side. Lawson testified that he
saw “many, many . . . near misses,” where racks fell off the stands or stands toppled over. Def.’s
Mot. Summ. J., Ex. F, Lawson dep. at 39.
Lawson also testified that four to six people regularly worked under the racks at a time while
another worker operated the crane. When one group would finish loading the rack, “99 percent of
the time” the operator would pick up the loaded rack, and all the weight would shift to the side of
the stand left holding another rack, which could make the stands topple over. Id. at 16. In one part
of the plant the company removed a wall that stood behind the racks because the wall had been
knocked out so many times by toppling racks.
Landers testified that he saw rack stands tip over onto their sides two times during the time
he worked at V&S Detroit. Nobody was injured in either of those two accidents because nobody
was working around the racks at the time. Carl Neal recalled four or five occasions when the racks
and rack stands fell over, although no one was hurt. Darryl Maxey recalled eight to ten times over
the course of sixteen years that he worked at V&S Detroit when he heard of near misses in the

-15-

racking department, where a rack or stand fell but no one was injured. He said that workers,
supervisors, and plant managers all knew about these sorts of accidents. Derrick Riley saw racks
and rack stands fall or tip over at least five times in the four years that he worked at V&S Detroit.
A rack and stand tipped over and fell on Corey White within the first six months he worked at V&S
Detroit, but he was not injured. And, as noted above, Derrick Riley testified that once he was
working while Bottorff was in the racking area, and a rack fell, almost hitting Bottorff. All of those
incidents preceded Lazar Ostravan’s injury from a falling rack. The jury could infer from that
evidence that the occurrence of a serious injury from a rack falling on a worker hanging parts during
a crane lift was a matter of when, not if.
As noted earlier, the evidence also demonstrates that management at V&S Detroit’s Redford
plant was aware of the dangerous condition and the certainty that an injury would occur, and
proceeded in willful disregard of that knowledge.
The Court finds, therefore, that the record presents material factual issues on the issue of
liability. The Court is not able to conclude as a matter of law that the plaintiff cannot establish the
exception to the worker’s compensation exclusive remedy bar found in Michigan Complied Laws
§ 418.131(1).
III.
The Court concludes that genuine issues of material fact prevent summary judgment in the
defendant’s favor.
Accordingly, it is ORDERED that the defendant’s motion for summary judgment [dkt. # 28]
is DENIED.

-16-

It is further ORDERED that the case management and scheduling order is modified as
follows:
The proposed joint final pretrial order is due on or before October 16, 2012.
The Final Pretrial Conference shall take place on October 23, 2012, at 9:00 a.m.
Trial shall commence on November 6, 2012, at 8:30 a.m.
The balance of the Case Management and Scheduling Order remains in effect.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: September 21, 2012

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 21, 2012.
s/Deborah R. Tofil
DEBORAH R. TOFIL

-17-