|Kathleen Fleury Bilbrey (#46788599)|
| || member for 9 years, 6 months, 24 days|
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I am a Mother of 2 boys and 2 girls and a grandma of 4 granddaughters and 3 grandsons. |
I am a transplant from Michigan who graduated from L'anse Creuse High School in Mount Clemens Michigan 1966. I was the sixth child of Leonard Joseph Fleury and Florence Jean (Simpson) Fleury. I now live in Goodlettsville Tennessee, north of Nashville ,with a ridgerunner for a hubby, who I met when he was in the Air Force at Selfridge Air Force Base in 1967, and now he is retired from Dupont.
Email me if there is anything that needs to be made right on my inputs.
'Blackeyedpeas' is the nicname that was given to me by my Father, Leonard Joseph Fleury, when I was a little girl, because my eyes are brown. My hubby has a nicname he had from where he retired from Dupont, it is called 'Cornbread'.
My dad also gave me another nicname , it is Kickkee, I have been doing Ancestry research on Surnames of Fleury, Bilbrey, Reno, also spelled Renaud, Simpson, Warner, Anstett, Worley, Howard, Nantais, Coker.
My sister Irene (Fleury) Young passed away July 7, 2006 if you leave a flower or a gift on her interment it would be very appreciated,you can find it as an off shoot of my Mom's interment, Florence Jean (Simpson) Fleury.
If there are any who put gifs and flowers on my family or friends interments which are mostly in my Sponserships, I thank you all so very much, and I will also try to do the same for your loved ones.
I also look for duplicates in the cemeteries I put flowers in and I will tell the members about them so they can be deleted .
So if anyone finds duplicates on my interments please let me know.
I use to take request pictures at a few Cemeterys near us, National Cemetery,Forest Lawn, and a few others . There are other members who take up pic requests in this area also .
I really do hope someone takes up the requests you made in Spring Hill and the others ,as I am unable to take pic requests as of this time since July of 2014, because of just getting out of hospital with a diagnosis of lung cancer and will be going thru the first steps in the process of treatments . I have had to have a bottom part of my right lung removed .
Hopefully when I am on the mend I will be able to take up requests again , meanwhile , if I have any interments that I have made in my profile as to date and you see any that may be your family ,please let me know so that I can transfer them to you.
Keep up the good work you and yours do in findagrave .
For the familys of any interments in Forest Lawn Cemetery here in Goodlettesville TN where I sometimes I did take requests, the cemetery has a way to have real flowers placed on interments for special occasions 3 times a year for a fee , and if anyone is interested they may call the Forest Lawn office to set it up.
I was informed by the Ladies who run the office in The National Cemetery here in Madison Tennessee that the Kiosk outside the office has the same records in it as the office records have inside , so that means , if the name isnt on the Kiosk then the soldiers are not in this Cemetery. And also there are quite a few unknowns headstones that are interred in the National from the Civil War.
Spring Hill Cemetery is a strict cemetery,I have had problems with office people when I did ask for the locations as a request pic taker , They say only family of interred people there may ask for locations. So if you need a location call office at Spring Hill Cemetery 1-615-865-1101 then say you are family related. Ask for Section#, plot location#, plot#, and grave #. You may need to provide dates. Then add information to the photo request . And if they find the location in the office for you ,ask them to help show whoever comes in for it to go out and help look ,or make a copy of the location on a map , because sometimes it is hard for the pic taker to locate by just the direction itself , whereas the office people may be able to go directly to the grave with them . But make sure you specify someone will come into their offices and you need a family services person to show them where the interment is ,otherwise they may not help.
My photos are for public use and permission to use them are not needed. And your very welcome.
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|Mike McKay||RE: flowers|
Greetings and thank you for your response. Happy T-Day to you as well.
I just recently found Tim's grave on this site and can finally pay my respects to a fallen brother after 30+ years.
October 2, 1978 I was working as a fork truck driver for Double Seal Glass Company of Flint, Michigan. There was a terrible accident and Tim Barnes died at the mere age of 16. They took the body to the hospital in the back of a pickup truck, told the hospital that they found him on the side of the road and his name was John Doe. Then Darrel Pruitt the general foreman demanded we clean up the mess. So we cleaned up a large pool of blood and grey matter. The pool of blood was approximately 3’ in diameter and roughly 1’ to 1.5” thick from edge to center. There was a lot of glass tainted with blood as well surrounding the pool of blood. I took the blood, grey matter and tainted glass and put it in a 50 gallon drum while Dave, the other forklift operator cleaned up the residual glass not so tainted with blood. He was then called to the line or something and I finished cleaning the glass and blood. After taking approximately 1 and 3/4 gondola’s of glass to the recycle trailers out front, estimated 3,000 lbs worth, I finished cleaning the tainted glass and blood the best I could per the General Foreman Darrel Pruitt’s direct orders. Once the drum was nearly full about 7/8 to the rim I took it to the dumpster and I think I put some wadded paper in it. I lifted the drum with the fork truck until the top lip was even with the top of the opening to the dumpster. Then manually lifted it at about 300 lbs. and turned it sideways into the compactor and compacted it. Again I may have thrown paper in the compactor. (I never have been able to pay my respects to Tim; he was only 16 when he was killed. God rest his soul)
I did befriend his parents and even testified for them at trial. Wally, Tim’s father taught a Korean style of martial art that is known as So Bak Do. Wally is now with Tim he passed on March 15, 2006. Everyone disappeared after a lawsuit that ended unfavorably.
BARNES v. DOUBLE SEAL GLASS CO. Docket No. 63107.
129 Mich. App. 66 (1983)
341 N.W.2d 812
BARNES v. DOUBLE SEAL GLASS COMPANY, INC.
Michigan Court of Appeals.
Decided September 26, 1983.
Roger A. Rapaport, P.C. (by Roger A. Rapaport), for plaintiffs.
Moore, Sills, Poling & Wooster, P.C. (by James M. Prahler), dor defendant.
Before: T.M. BURNS, P.J., and ALLEN and CYNAR, JJ.
Plaintiffs, Wallace and Norma Barnes, commenced this action individually and Wallace Barnes as personal representative of the estate of Tim Barnes, their son, against their son's employer and coemployees. Defendants filed a motion for accelerated judgment on the ground that plaintiffs' suit was barred by the exclusive remedy provision of the Worker's Disability Compensation Act (WDCA). The lower court granted accelerated judgment on Counts I, II, V, and VI and denied the motion on Counts III and IV. Plaintiffs appeal as of right from the accelerated judgment on Counts I, II, V, and VI. Defendants filed a cross-appeal,
[129 Mich. App. 69]
arguing that accelerated judgment should also have been granted on Counts III and IV.
Plaintiffs' complaint alleges the following facts. Decedent, Tim Barnes, 16-years-old, was illegally employed without a work permit by defendant Double Seal Glass Company in Genesee County. On October 2, 1978, defendant Coe, a foreman at Double Seal, ordered three employees to load glass onto an A-frame cart and then move it to another area. Plaintiffs allege that the wheels of the car could each withstand only 500 pounds of pressure and that the employees improperly loaded the cart so that the left front edge of the cart weighed 2,460 pounds. After the cart was loaded, Coe and the three employees tried unsuccessfully to push the cart. Other employees, including decedent, were called upon to help push the cart. The cart was immovable because the wheel underneath the heaviest load was turned perpendicular to the line of travel. During a final attempt to push the cart, the wheel shattered and the entire load of glass fell onto decedent. The glass sheared off part of decedent's skull, crushed his skull, and tore major arteries.
Several employees became violently ill at the sight of the gruesome injuries. Immediately after the event, Coe went into his office for 10 to 20 minutes to compose himself, leaving decedent bleeding under the shattered glass. Plaintiffs allege that no one called for an ambulance or attempted to give decedent medical aid even though emergency help was only about four mintues away. Decedent was later put into the back of an open pickup truck and driven to St. Joseph's Hospital in Flint.
Decedent was admitted to St. Joseph's Hospital at 10:58 a.m. on October 2, 1978, and listed in
[129 Mich. App. 70]
critical condition. The hospital listed decedent as "John Doe" because Double Seal's President Edmond Mogford and the other employees told hospital personnel that they found decedent by the side of the road and did not know him. No one from Double Seal notified Wallace or Norma Barnes about the accident. Decedent was pronounced dead at 11:35 a.m. on October 2, 1978. Decedent was killed by: 1) extensive multiple fractures of the skull; 2) sheared off frontal lobe above the sinus; and 3) displacements of frontal bone and parietal bone.
After decedent was left at the hospital, defendants cleaned up the accident site so that police would not be able to accurately investigate the accident. Count I of plaintiffs' complaint alleges that defendants' negligence led to the accident. Count II alleges that defendants acted negligently after the accident by failing to give decedent the prompt medical care which would have saved his life. Count III alleges that defendants intentionally failed to act after decedent's injury, thereby allowing Tim Barnes to die. Count IV alleges that defendants conspired to let decedent die because they knew that workers' compensation death benefits were radically lower than payment of disability benefits if decedent had lived, because decedent had no dependents. Counts V and VI allege that defendants intentionally inflicted emotional distress upon plaintiffs directly, as individuals.
The principal issue is whether all of the counts in plaintiffs' complaint are barred by the exclusive remedy provision of the WDCA.
An action under the wrongful death statute1 is
[129 Mich. App. 71]
derivative. In Maiuri v Sinacola Construction Co, 382 Mich. 391; 170 N.W.2d 27 (1969), the Supreme Court held that the parents of a son killed while working for his employer were barred from bringing a wrongful death suit because the son would have been barred from bringing a civil suit because of the exclusive remedy provision of the WDCA:
"Since the cause of action of a proper plaintiff under the wrongful death act is a derivative one in that the personal representative of the deceased stands in his shoes and is required to show that the deceased could have maintained the action if death had not ensued, and since, in this case, the decedent would have been barred from an action for injuries resulting in death because of the exclusive remedy provisions of the workmen's compensation act, the trial court did not err in granting an accelerated judgment for the defendant." Maiuri, supra, p 396.
Accordingly, the central issue presented in this case is whether decedent could have brought a civil tort action against defendants if he had survived.
When an injury is compensable under the WDCA, the exclusive remedy provision bars any common-law tort action by an employee against his employer.2 Sewell v Bathey Mfg Co, 103 Mich.App. 732,
[129 Mich. App. 72]
736; 303 N.W.2d 876 (1981). An employee "who receives a personal injury arising out of and in the course of employment" is entitled to compensation under the act. MCL 418.301(1); MSA 17.237(301)(1).
Plaintiffs argue that the exclusive remedy provision of the act is not applicable where plaintiffs have alleged intentional torts. This Court has recognized that an employee may bring a civil action against his employer for injuries which arose out of his employment but are not covered by the act. See Moore v Federal Dep't Stores, Inc, 33 Mich.App. 556; 190 N.W.2d 262 (1971), lv den 385 Mich. 784 (1971) (false imprisonment); Stimson v Michigan Bell Telephone Co, 77 Mich.App. 361; 258 N.W.2d 227 (1977) (sex discrimination); Broaddus v Ferndale Fastener Div, Ring Screw Works, 84 Mich.App. 593; 269 N.W.2d 689 (1978), lv den 403 Mich. 850 (1978) (intentional infliction of emotional distress); Slayton v Michigan Host, Inc, 122 Mich.App. 411; 332 N.W.2d 498 (1983) (intentional infliction of emotional distress).
As of the date of this writing, however, this Court has not agreed upon any one test to determine when the exclusive remedy provision does not bar a civil action. In Moore, the Court indicated that an employee could seek recovery outside the act where his injuries could not be compensated for under the act. This approach has not been followed in more recent cases. McKinley v Holiday Inn, 115 Mich.App. 160, 165; 320 N.W.2d 329 (1982); Genson v Bofors-Lakeway, Inc, 122 Mich.App. 470; 332 N.W.2d 507 (1983). Stimson and
[129 Mich. App. 73]
Broaddus focus primarily upon whether the essence of the tort alleged is physical or nonphysical. The McKinley panel focused on the nature of the tort alleged and whether the Legislature intended the exclusive remedy provision to preclude the employee's common-law recovery. McKinley, supra, p 165. In Sewell, this Court recognized the inquiry as "whether the injuries themselves fall within the purview of the act, irrespective of the nature of the employer's acts". Sewell, supra, pp 737-738. This approach was recognized recently in Slayton and Genson:
"To begin with, we agree with the defendants that the applicability of the exclusive-remedy provision of the act turns not upon the characterization of the asserted cause of action but upon whether the employee has a right to recover benefits under the act. Stimson, supra, p 367. Therefore, the fact that the plaintiff's suit is based on a discrimination claim is not dispositive of which forum should hear the case. A civil suit for damages based upon an alleged violation of the plaintiff's right to employment without sex discrimination is in the nature of the tort action and, as such, concerns a personal injury to the plaintiff. Stimson, supra, p 366, fn 3. The act provides compensation for disabilities resulting from a personal injury suffered by an employee during the course of his or her employment. Thus, certain elements of damages in a sex discrimination suit may be barred by the act's exclusive-remedy provision, although generally a nonphysical tort such as sex discrimination falls outside the scope of the act. Stimson, supra, p 366." Slayton, supra, pp 415-416.
Counts I and II of plaintiffs' complaint allege a cause of action for the negligence of defendants prior to and after the accident. The trial court ruled that these counts were barred by the exclusive remedy provision. In Sewell, an allegation of gross negligence was not sufficient to take a resulting
[129 Mich. App. 74]
injury outside the scope of the act. Nowhere do our plaintiffs argue that decedent's injury did not arise out of and during the course of his employment. Plaintiffs are barred by the exclusive remedy provision of the WDCA from raising these claims in a civil suit. The individual coemployees of decedent are also exempt from liability under MCL 418.827(1); MSA 17.237(827)(1). Herndon v UAW Local No 3, 56 Mich.App. 435, 437; 224 N.W.2d 334 (1974), lv den 393 Mich. 808 (1975).
In the present case, Count III states:
"55. That defendants by their inaction after the injury to Tim Barnes, proximatley caused his death;
"56. That defendants' inaction was intentional and, therefore, allowed Tim Barnes to die."
Count IV states:
"57. That after the accident, the foreman, Stephen Coe went into his office for 10-20 minutes, allegedly to compose himself, thereby intentionally allowing Tim Barnes to die;
"58. That neither Edmund Mogford, nor Stephen Coe called an ambulance so that Tim Barnes would die;
"59. That Edmund Mogford, and three employees drove Tim Barnes, who was bleeding profusely and in shock, to the hospital in the back of an open pickup truck, on a chilly October morning, to let Tim Barnes die;
"60. That management ordered Double Seal employees to clean the area of the accident to destroy the evidence before police investigators arrived;
"61. That defendants conspired to let Tim Barnes die because they knew workers' compensation death benefits were radically less than disability benefits in this case as decedent had no dependents.
"62. That defendants contributed to the death of Tim Barnes for purposes of business and with callous disregard for decedent's life and well being."
[129 Mich. App. 75]
Counts III and IV of plaintiffs' complaint allege that defendants, after the injury, intentionally did not act, thereby allowing Tim Barnes to die and let him die because workers' compensation benefits would be much less if he died leaving no dependents.
In Sewell, supra, the employer had been removing safety guards from a punch press machine in which plaintiff received his injury. Allegations of gross negligence, standing alone, were held insufficient to take the injury resulting therefrom outside the scope of the act. In Sewell, as in the matter before us, the action was intentional; in this case it is also alleged that the result was intentional.
Accepting the allegations as true and reading them in the light most favorable to plaintiffs, the trial court correctly denied the motion for accelerated judgment on Counts III and IV. Although the counts are somewhat ambiguous, they in fact allege two intentional torts. First, plaintiffs allege that defendants acted as they did intending the decedent to die and, second, defendants conspired to illegally reduce the workers' compensation liability by allowing Tim Barnes to die.
Counts V and VI of plaintiffs' complaint allege a cause of action on their own behalf individually against defendants for intentional infliction of emotional distress. Michigan has recognized intentional infliction of emotional distress as a separate cause of action. Holmes v Allstate Ins Co, 119 Mich.App. 710, 714; 326 N.W.2d 616 (1982); Ledsinger v Burmeister, 114 Mich.App. 12, 17; 318 N.W.2d 558 (1982); Warren v June's Mobile Home Village & Sales, Inc, 66 Mich.App. 386, 390; 239 N.W.2d 380 (1976).
The trial court erroneously assumed that plaintiffs'
[129 Mich. App. 76]
claim was derivative to decedent's claim under the wrongful death act. Plaintiffs' claim for intentional infliction of emotional distress is made on their own behalf, for their own injuries, for a tort directed at them rather than at their son. The claim is not for wrongful death and is not covered by § 2922 of the wrongful death act, MCL 600.2922; MSA 27A.2922, or the exclusive remedy provision of the WDCA, MCL 418.131; MSA 17.237(131). The trial court erred by granting accelerated judgment on Counts V and VI.
This Court, in Ledsinger, supra, pp 17-18, and Warren, supra, p 390, has adopted the standards set forth in 1 Restatement Torts, 2d, § 46, pp 71-72:
"(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
"(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
"(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or
"(b) to any other person who is present at the time, if such distress results in bodily harm."
Section 46, comment d, p 73 of the Restatement states:
"It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice', or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to
[129 Mich. App. 77]
go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous'.
"The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities."
Counts V and VI state an independent cause of action for intentional infliction of emotional distress which is not derivative and is outside the scope of the wrongful death act and the WDCA. Accelerated judgment was improperly granted as to Counts V and VI.
Plaintiffs also argue that they are entitled to bring an action against defendants because, as an illegally employed minor, decedent should have been entitled to a higher standard of care from his employer than the average worker. Plaintiffs cite no authority for this proposition. In Allossery v Employers Temporary Service, Inc, 88 Mich.App. 496; 277 N.W.2d 340 (1979), lv den 406 Mich. 1000 (1979), this Court held that an illegally employed minor was covered by the WDCA and, therefore, his exclusive remedy was workers' compensation. MCL 418.161; MSA 17.237(161).
Plaintiffs further argue that the WDCA denies equal protection to employees who suffer fatal work-related injuries but leave no dependents by barring civil wrongful death claims by their estates. Plaintiffs raise this argument for the first time on appeal. Ordinarily, a constitutional challenge to a statute may not be raised for the first time on appeal. Drewes v Grand Valley State Colleges, 106 Mich.App. 776, 788; 308 N.W.2d 642 (1981). However, we respond briefly.
[129 Mich. App. 78]
When confronted with an equal protection challenge to economic or social welfare legislation, the party attacking the statute bears the heavy burden of showing that the classification lacks a reasonable basis. Drewes, supra, p 785. "If a reasonable relationship exists between the governmental classification and a legitimate state interest, no denial of equal protection results." Forest v Parmalee, 402 Mich. 348, 356; 262 N.W.2d 653 (1978). The primary purpose of the WDCA is to provide prompt and certain compensation to injured workers and their dependents regardless of traditional tort liability "so that the worker and his dependents may survive (literally) the catastrophe which the temporary cessation of necessary income occasions". McAvoy v H B Sherman Co, 401 Mich. 419, 437; 258 N.W.2d 414 (1977). Plaintiffs have failed to sustain the heavy burden of showing that the classification lacks a reasonable basis.
In summary, accelerated judgment was properly granted as to Counts I and II. Accelerated judgment was properly denied as to Counts III and IV. Accelerated judgment was improperly granted as to Counts V and VI. We affirm in part and reverse in part.
ALLEN, J., concurred.
T.M. BURNS, P.J. (concurring).
I fully concur in the result reached by the majority. However, I feel it is necessary to comment further upon whether intentional torts are covered under the Worker's Disability Compensation Act, thereby barring a separate tort action.
The majority quite correctly rules that, where an injury is within the scope of the Worker's Disability Compensation Act, workers' compensation benefits are the exclusive remedy against both
[129 Mich. App. 79]
the employer and the coemployes. Szydlowski v General Motors Corp, 397 Mich. 356; 245 N.W.2d 26 (1976); Holody v Detroit, 117 Mich.App. 76; 323 N.W.2d 599 (1982). However, not all injuries alleged against an employer are necessarily covered by the act. The employee is sometimes still allowed to sue the employer in court. In Moore v Federal Dep't Stores, 33 Mich.App. 556; 190 N.W.2d 262 (1971), lv den 385 Mich. 784 (1971), this Court held that false imprisonment is not the type of personal injury contemplated by the act. Slayton v Michigan Host, Inc, 122 Mich.App. 411; 332 N.W.2d 498 (1983), Pacheco v Clifton, 109 Mich.App. 563; 311 N.W.2d 801 (1981), lv gtd 417 Mich. 888 (1983), and Stimson v Bell Telephone Co, 77 Mich.App. 361; 258 N.W.2d 227 (1977), all held that injuries resulting from employment discrimination are not covered by the act. Therefore, a separate suit is allowable. Likewise, Milton v Oakland County, 50 Mich.App. 279; 213 N.W.2d 250 (1973), held that, where the defendant violated the plaintiff's employment rights for promotion, he was allowed to maintain a separate suit because this is not the type of industrial injury contemplated by the act. One particular type of injury not covered by the act is the injury arising from an intentional tort. Seals v Henry Ford Hosptial, 123 Mich.App. 329; 333 N.W.2d 272 (1983); Kissinger v Mannor, 92 Mich.App. 572; 285 N.W.2d 214 (1979); Broaddus v Ferndale Fastener Div, Ring Screw Works, 84 Mich.App. 593; 269 N.W.2d 689 (1978), lv den 403 Mich. 850 (1978).
I disagree to some extent with the majority's analysis of Genson v Bofors-Lakeway, Inc, 122 Mich.App. 470; 332 N.W.2d 507 (1983). Genson quite properly held that, merely because the plaintiff has alleged what he claims to be an intentional
[129 Mich. App. 80]
tort, he is not therefore automatically outside the act. In both Burgess v Holloway Construction Co, 123 Mich.App. 505; 332 N.W.2d 584 (1983), and McKinley v Holiday Inn, 115 Mich.App. 160; 320 N.W.2d 329 (1982), lv den 417 Mich. 890 (1983), the workers had been injured through intentional torts. In Burgess, the worker had been murdered by a coemployee. While specifically stating that intentional torts are outside the act, this Court held that the exclusive remedy provision barred that particular suit anyway because plaintiffs had not sufficiently alleged that the employer itself had committed the intentional tort. In McKinley, the worker had been raped by a patron at the motel where she worked. Here, too, this Court held that the exclusive remedy provision barred the suit. However, McKinley specifically noted: "The instant plaintiff's complaint against Holiday Inn is grounded solely in negligence. No intentional misconduct is alleged." 115 Mich.App. 165.
Genson dealt with another aspect of the intentional tort issue. There, the workers had alleged that their employer had "maliciously, intentionally and wantonly" withheld from them information concerning benzidine and had "maliciously, intentionally and wantonly" assured them that benzidine would not harm them. However, most everything one does is intentional. In order to allege an intentional tort outside the act, the plaintiff must allege that the employer intended the injury itself and not merely the activity leading to the injury.1 In other words, the intentional
[129 Mich. App. 81]
tort necessary to get outside the act is the one that requires "the formation by the employer of a specific intention to cause an injury or death (combined with some action aimed at accomplishing such result), as opposed to mere negligence or even gross negligence". Anno: What conduct is willful, intentional, or deliberate within workmen's compensation act provision authorizing tort action for such conduct, 96 ALR3d 1064, 1068. The employer must have entertained the desire to bring about the result. Courtney v BASF Wyandotte Corp, 385 So.2d 391 (La App, 1980), cert den 386 So.2d 359 (La, 1980). Because the plaintiffs in Genson did not sufficiently allege that the employer had intended the injuries rather than intending the act leading to the injuries, the suit was barred by the act. Genson is not inconsistent with Kissinger and Broaddus.2
Artonio v Hirsch, 3 App Div 2d 939; 163 N.Y.S.2d 489 (1957), illustrates the distinction that is made. There, the worker alleged that the employer had deliberately sealed and intentionally made inoperative safety locks on certain steel presses that the plaintiff worked on. As a consequence, the employee was injured. Even though it alleges an intentional activity, such an allegation is insufficient by itself to overcome the exclusvie remedy provision. In analyzing this case, Professor Larson said:
"If [this decision seems] rather strict, one must remind
[129 Mich. App. 82]
oneself that what is being tested here is not the degree of gravity of depravity of the employer's conduct, but rather the narrow issue of intentional versus accidental quality of the precise event producing injury. The intentional removal of a safety device or toleration of a dangerous condition may or may not set the stage for an accidental injury later. But in any normal use of the words, it cannot be said, if such an injury does happen, that this was deliberate infliction of harm comparable to an intentional left jab to the chin." 2A Larson, Workmen's Compensation Law, § 68.13, p 13-27.
Earlier Professor Larson states the rule concerning intentional torts as follows:
"Intentional injury inflicted by the employer in person on his employee may be made the subject of a common-law action for damages on the theory that, in such an action, the employer will not be heard to say that his intentional act was an `accidental' injury and so under the exclusive provisions of the compensation act. * * * But when the intentional injury is committed by a co-employee the better rule is that an action in damages will not lie against the employer merely because the co-employee occupied supervisory status in relation to the claimant." Id., § 68, p 13-1.
Certainly the Worker's Disability Compensation Act should not be construed to encourage intentional torts.
"It would be anomalous to permit a defendant which, as in this case, acting through its officer assaulted the plaintiff herein, to say, `I can assault you with impunity and the only remedy you have is to take Workmen's Compensation which I provided for you.'" Garcia v Gusmack Restaurant Corp, 150 N.Y.S.2d 232, 233 (NYC Ct, 1954).
In Kissinger, supra, this Court stated:
[129 Mich. App. 83]
"The Legislature could not have intended that the exclusive remedy section of the act be construed to preclude a plaintiff's record for injuries suffered in an intentional tort such as the one before us. A substantial portion of plaintiff's injuries did not arise out of an employer-employee relationship and they occurred irrespective of the fact that plaintiff happened to be employed at the factory." 92 Mich.App. 577-578.
I feel that it is a total misconception of the act to inquire only into the type of injury to determine if it is covered. As the quote from Kissinger indicates, intentional torts normally do not occur within the course of employment. Therefore, the injuries that result from the intentional tort do not arise from the employment.
I do not believe that this Court is straying as far away from these principles as the majority indicates.
1. "Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section." MCL 600.2922(1); MSA 27A.2922(1).
2. "The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer. As used in this section and section 827 `employee' includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and `employer' includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen's compensation insurance or incident to a self-insured employer's liability servicing contract." MCL 418.131; MSA 17.237(131).
1. This same distinction has been made in governmental immunity law. If an intentional tort is alleged and the government cannot justify its actions, governmental immunity does not apply. ; (1983). However, an intentional tort must be alleged. The plaintiff cannot merely allege that the government acted intentionally. ; (1983); ; (1982).
2. recognized that the act is not limited to recovery for accidental injuries. Even if the worker is assaulted by a coemployee, he can recover under the act. ; (1958); , 559; (1980), 412 Mich. 926; 315 N.W.2d 127 (1982). But saying this is very different than saying that the act is the exclusive remedy for an injury that the employer intentionally inflicts on the employee.
|Mike McKay||Tim Dale Barnes|
Did you know Tim? You posted on his site, yet there is no mention of him...
|MHN||Dixie Marie Tankersley Webb|
Thank you for the transfer, unexpected but appreciated. Both of her sons are now linked to her memorial. one of my favorite things to do is get families linked.
Added by MHN on Nov 19, 2014 4:43 AM
|Lyndon Comstock||Mack Johnson gravestone|
Thanks very much for the permission to use his gravestone photo. I'm writing a book about African-Americans from Clark County, Kentucky from before emancipation. This is where he was from.
|Rudy's Granddaughter||Moore photos|
Oh my. I wonder why they are so strict. Thanks for the information. I will look into it.
|Betty Judy||Margaret Elizabeth Petty|
Thank you for your efforts and information on the correct procedure in requesting a photo.
|Brad Roberts||Annie Milam Memrial|
Thank you a whole bunch for the picture. I corrected the memorial. - Brad
|Jerry C. Goldsmith||Willie Staggs|
I contacted Spring Hill and spoke to Linda who was extremely nice and apologetic for someone not getting back to me last week. She gave me the info for Willie Staggs, but I am going to hold off as I found out that others family members are buried there. Thanks for the heads up.
Kathleen, I hope I find you in good health and high spirits. My name is Brian Powell and I am the grandson of Annie Fleury. I came across your name on flowers on a grave for Jesse Fleury who fell at Thiepval. I wondered how you are connected to this family and whether you can shed any light on the family tree back into France.
|Debbie K||Healing thoughts|
Thinking of you today and hope you are doing well.
Added by Debbie K on Nov 13, 2014 5:57 PM
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