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Abundiz v. Explorer Pipeline Co.

Citation: 32 ELR 20643
No. No. 3:00-CV-2029-H, (N.D. Tex., 04/19/2002)

The court affirms a district court decision granting summary judgment to a school system and various school officials sued by custodians who were exposed to friable asbestos during a carpet removal job at a high school. The custodians alleged that the officials, in ordering them to remove the asbestos-containing materials, caused injury to the custodians that was willful, wanton, and malicious. The court first holds that although the custodians alleged a willful violation, their proof is insufficient as a matter of law to state a question of fact regarding the officials' liability under 42 U.S.C. §1983. There was no evidence in the record suggesting that any of the officials made a deliberate decision to inflict pain or bodily injury on any of the custodians. Nor was there proof that the officials engaged in arbitrary conduct intentionally designed to punish the custodians that would result in the deprivation of a constitutionally protected interest. The custodians' evidence establishes, at best, a case sounding in negligence and not a constitutional tort under §1983. The court next holds that the district court did not err when it concluded that the custodians' evidence did not sufficiently establish a material issue of fact with regard to the officials' liability under the intentional tort exception to the Michigan Worker's Disability Compensation Act (MWDCA). The intentional tort exception provides: 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. While the officials' actions may have been negligent, or even grossly negligent, the custodians' proof fails to establish that the officials had actual knowledge that injury was certain to occur and willfully disregarded that knowledge. The custodians, therefore, are subject to the exclusive remedies provided under the MWDCA and may not recover in this action.

The full text ofthis decision is available from ELR (6 pp., ELR Order No. L-513).

Counsel for Plaintiffs
Philip E. Chaffee
Law Offices of Philip E. Chaffee
111 SE Cherry St., Grand Rapids MI 45925
(616) 454-8400

Counsel for Defendants
Timothy D. Wittlinger
Clark & Hill
736 N. Glenhurst Dr., Birmingham MI 48009
(248) 642-9692