Althoff v. Pro-Tec Roofing, Inc.

#29639, #29686-aff in pt & rev in pt-PJD
2022 S.D. 49

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

LYNN ALTHOFF, as Personal
Representative of the Estate of
Justin Althoff, Plaintiff and Appellee,

v.

PRO-TEC ROOFING, INC., Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA

****

THE HONORABLE ROBERT L. SPEARS
Judge

****

RICHARD L. TRAVIS
PAUL W. COPPOCK of
May & Johnson, P.C.
Sioux Falls, South Dakota Attorneys for defendant and
appellant.

LEE C. “KIT” MCCAHREN of
Olinger, Lovald, McCahren
& Van Camp, P.C.
Pierre, South Dakota Attorneys for plaintiff
and appellee.

****

ARGUED
FEBRUARY 15, 2022
OPINION FILED 08/10/22
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DEVANEY, Justice

[¶1.] While working on the roof of a building for a subcontractor, an

employee fell off the roof and tragically died as a result. His estate instituted a tort

suit against the employer, and the employer asserted that the estate’s remedies

were limited to those available under the South Dakota Workers’ Compensation

Act. On cross-motions for summary judgment, the circuit court denied both parties’

motions, concluding that material issues of fact were in dispute on the question

whether it was substantially certain that an injury would result from the

employer’s failure to train its employees and provide adequate safety equipment.

Because we conclude, on the undisputed facts presented, that the employer was

entitled to summary judgment, we affirm in part and reverse in part.

Factual and Procedural Background

[¶2.] Pro-Tec Roofing, Inc. entered into a subcontract with a general

contractor for the construction of a community center in Watertown, South Dakota.

Pro-Tec hired Justin Althoff to work on the community center project. After he was

hired, Pro-Tec provided him a copy of the company’s safety and health manual but

did not provide him any formal safety training. While Althoff was working on the

roof of the community center on April 21, 2016, he got too close to the edge of the

building and fell off the roof. Althoff died as result of the fall, and Pro-Tec paid

workers’ compensation benefits accordingly. Althoff’s estate (Estate) later brought

a tort suit against Pro-Tec, alleging that Althoff’s death arose from Pro-Tec’s

intentional acts of not following OSHA regulations and its own safety rules. The

Estate did not identify a particular intentional tort; instead, it asserted that Pro-Tec

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employees’ “intentional actions and willful misconduct were the proximate cause of

Justin Althoff’s injuries and death.”

[¶3.] Relevant to the issues here, it is undisputed that Pro-Tec did not

provide Althoff or the other employees a safety harness to wear while working on

the roof. Instead, Pro-Tec used a warning line system. However, Pro-Tec’s

placement of the warning line did not meet the Occupational Safety and Health

Administration’s (OSHA) standards. Further, Pro-Tec did not have a designated

person monitoring employees working near or outside the partially erected warning

line as required by OSHA regulations. Pro-Tec claimed that it operated under the

belief that it was every employee’s responsibility to watch out for each other. In

particular to the circumstances here, Pro-Tec claimed that just prior to Althoff’s fall,

a co-worker warned him that he was too close to the edge.

[¶4.] After the fall, OSHA conducted an investigation and issued citations to

Pro-Tec and imposed monetary penalties for, among other things, not adequately

training employees related to fall hazards and not using a proper fall prevention

system. One citation, related to Pro-Tec’s failure to properly implement its warning

line system and failure to use a dedicated safety monitor, was deemed to be a

“willful” violation.

[¶5.] After the parties conducted discovery, the Estate amended its

complaint and identified that OSHA had issued Pro-Tec three citations prior to

Althoff’s April 2016 fall. The first citation, issued on September 10, 2009, occurred

after OSHA conducted an unannounced job site inspection. OSHA determined that

Pro-Tec did not have “[e]ach platform on all working levels of scaffolds” “fully

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planked or decked between the front uprights and guardrail supports.” The second

and third citations, deemed to be “serious,” were issued on January 11, 2011 and

July 2, 2012. These also occurred after unannounced inspections by OSHA wherein

OSHA discovered employees working on low-slope roofs without “guardrail systems,

safety net systems, personal fall arrest systems, or a combination of warning line

system and personal fall arrest system, or warning line system and safety

monitoring system[.]” In response to the January 2011 citation, Pro-Tec agreed to

implement a safety and health program that complies with OSHA’s safety and

health management guidelines. Pro-Tec also adopted a fall prevention program,

outlining fall prevention systems and training programs to be provided to

employees. In the July 2012 citation, OSHA specifically noted that Pro-Tec had

been previously cited for the same violation in January 2011.

[¶6.] In its amended complaint, the Estate also quoted language from Pro-

Tec’s safety and health manual that required employees to “follow OSHA, State,

Federal, and Pro-Tec Roofing, Inc. standards at all times” and “[u]se safety

harness[es] when close to the hazard of falling.” 1 The Estate noted that pursuant to

the manual, the company’s officers and foremen were responsible for making sure

that employees follow Pro-Tec’s policies and that Pro-Tec meets all OSHA and local

safety standards. The Estate further noted that within the training section of the

1. Although the Estate quoted multiple provisions of the manual in its
statement of undisputed material facts, the Estate did not always quote the
entirety of a provision. The Estate also did not include the entire manual in
the record. It is therefore difficult to interpret how or whether some of the
provisions relied on by the Estate apply to the circumstances of this case.
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manual, Pro-Tec had adopted a fall protection program that identified and required

compliance with the relevant OSHA guidelines for preventing falls.

[¶7.] In regard to Pro-Tec’s role in Althoff’s fall, the Estate quoted testimony

from interviews by an OSHA representative conducted with Pro-Tec’s employees

during OSHA’s investigation after the fall. The Estate then relied on this testimony

as support for the claim that Pro-Tec “was clearly and obviously aware that fall

protection was required by [the company’s] own rules and OSHA statutes and that

safety harnesses were not used or present[.]” 2 According to the Estate, Pro-Tec’s

failure to provide the required safety measures meant that “serious injury or death

was absolutely certain.”

[¶8.] Pro-Tec filed a motion for summary judgment, asserting that under

SDCL 62-3-2, workers’ compensation is the Estate’s exclusive remedy because

Althoff’s death occurred in the course of his employment. In response, the Estate

argued that because Pro-Tec deliberately failed to provide Althoff with a safety

harness as required by its internal safety rules and policies, the exception to SDCL

62-3-2 for intentional torts applied. The Estate filed a cross-motion for summary

judgment, claiming that the undisputed facts establish that Pro-Tec’s “intentional

acts of willfully choosing not to provide an operable fall protection system” after its

OSHA citations and with full knowledge of its violation of the company’s safety

rules requirements “removes this case from the purview of SDCL 62-3-2.”

2. The portions of Pro-Tec’s fall protection program quoted by the Estate refer to
the OSHA regulations describing different methods to protect employees
engaged in roofing activities on low-slope roofs. Not every method requires
the use of safety harnesses. One method, used by Pro-Tec, utilizes a warning
line system combined with a safety monitoring system.
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[¶9.] After a hearing, the circuit court issued a memorandum decision. The

court recognized that workers’ compensation would be the Estate’s only remedy

unless the injury arose from an employer’s intentional tort and ultimately

concluded that neither the Estate nor Pro-Tec were entitled to summary judgment.

In denying the Estate summary judgment, the court determined that the Estate

could not, simply from the OSHA violations and Pro-Tec’s violation of its own safety

rules, prove that it was substantially certain that Althoff would fall off the roof that

day. However, in denying Pro-Tec summary judgment, the court determined that

the Estate identified material issues of fact in dispute on the question whether “Pro-

Tec’s actions (or omissions) at its construction job sites were substantially certain to

cause an injury or death of an employee within the intentional tort exception”

because of the evidence that Pro-Tec “willfully failed to furnish a safe workplace for

its employees” who were “performing an extremely dangerous job.” The court found

it “difficult to believe that the South Dakota Legislature intended to provide armor

to an employer with the practical effect of complete tort immunity, when that very

employer intentionally and repeatedly failed to adequately train its employees and

provide appropriate safety equipment in dangerous construction activities such as

roofing.”

[¶10.] This Court granted Pro-Tec’s petition for permission to take a

discretionary appeal challenging the circuit court’s intermediate order denying Pro-

Tec summary judgment. See SDCL 15-26A-13; SDCL 15-26A-3(6). The Estate, by

notice of review, asserts that the circuit court erred in denying its motion for

summary judgment.

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Standard of Review

[¶11.] As stated in Syrstad v. Syrstad,

“We review de novo a circuit court’s entry of summary
judgment.” Tammen v. Tronvold, 2021 S.D. 56, ¶ 17, 965
N.W.2d 161, 168. Summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
SDCL 15-6-56(c). We view the evidence and all reasonable
inferences in a light most favorable to the nonmoving party and
resolve reasonable doubts against the moving party. Strassburg
v. Citizens State Bank, 1998 S.D. 72, ¶ 5, 581 N.W.2d 510, 513.
Our task on appeal is to “determine whether the moving party
has demonstrated the absence of any genuine issue of material
fact and entitlement to judgment on the merits as a matter of
law.” Bernie v. Cath. Diocese of Sioux Falls, 2012 S.D. 63, ¶ 7,
821 N.W.2d 232, 237 (citation omitted).

2021 S.D. 67, ¶ 13, 968 N.W.2d 207, 212.

Analysis and Decision

[¶12.] Under SDCL 62-3-2,

The rights and remedies granted to an employee subject to this
title, on account of personal injury or death arising out of and in
the course of employment, shall exclude all other rights and
remedies of the employee, the employee’s personal
representatives, dependents, or next of kin, on account of such
injury or death against the employer or any employee, partner,
officer, or director of the employer, except rights and remedies
arising from intentional tort.

(Emphasis added.) In McMillin v. Mueller, which examined the intentional tort

exception, this Court noted that “workers’ compensation is meant to be the

exclusive remedy for all injuries that occur on the job except for those intentionally

inflicted by the employer.” 2005 S.D. 41, ¶ 12, 695 N.W.2d 217, 222. Therefore, to

bring a tort suit against employers, workers “must allege facts that plausibly

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demonstrate an actual intent by the employer to injure or a substantial certainty

that injury will be the inevitable outcome of employer’s conduct.” Harn v.

Continental Lumber Co., 506 N.W.2d 91, 95 (S.D. 1993); see also Fryer v. Kranz,

2000 S.D. 125, ¶ 11, 616 N.W.2d 102, 106 (quoting Jensen v. Sport Bowl, Inc., 469

N.W.2d 370, 372 (S.D. 1991)). “To establish intentional conduct, more than the

knowledge and appreciation of risk is necessary; the known danger must . . . become

a substantial certainty.” Jensen, 469 N.W.2d at 372 (citation omitted); McMillin,

2005 S.D. 41, ¶ 20, 695 N.W.2d at 223–24.

Clarification of the applicable standards

[¶13.] Before examining whether summary judgment was properly denied

here, a review of this Court’s past cases reflects an unresolved debate regarding

whether employees seeking to avoid the exclusivity provision in SDCL 62-3-2 must

prove that it was substantially certain or virtually certain that an injury would

occur as a result of an employer’s conduct. In each case prior to and after Harn, the

Court has referred to what has been called the “substantial certainty” standard.

See, e.g., VerBouwens v. Hamm Wood Products, 334 N.W.2d 874, 876 (S.D. 1983);

Jensen, 469 N.W.2d at 372; Brazones v. Prothe, 489 N.W.2d 900, 905 (S.D. 1992);

Harn, 506 N.W.2d at 95; Benson v. Goble, 1999 S.D. 38, ¶ 19, 593 N.W.2d 402, 406;

Fryer, 2000 S.D. 125, ¶ 11, 616 N.W.2d at 106; McMillin, 2005 S.D. 41, ¶ 12, 695

N.W.2d at 222. However, in Harn, the Court also indicated that it would follow

“Michigan’s direction” and apply “a strict interpretation of substantial certainty”

such that “[s]ubstantial certainty of injury to the employee should be equated with

virtual certainty to be considered an intentional tort.” See 506 N.W.2d at 100

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(emphasis added). The Court then explained that this stringent standard—virtual

certainty—refers to a scenario “where the employer actually knew of the danger and

that injury was substantially certain (virtually certain) to occur[.]” Id. Justice

Sabers, in a special writing in Harn, criticized the Court’s use of the phrase “virtual

certainty.” 506 N.W.2d at 100 (Sabers, J., concurring specially). He expressed the

view that the existing substantial certainty standard previously applied by the

Court “is solid and workable” and should not “be altered to mean ‘virtually certain.’”

Id.

[¶14.] The Court’s next decision examining the intentional tort exception,

Benson, did not refer to the virtual certainty language, although the Court quoted

Harn. See 1999 S.D. 38, ¶ 19, 593 N.W.2d at 406. But then in Fryer, decided the

year following Benson, the majority opinion quoted the substantial certainty

standard, see 2000 S.D. 125, ¶ 13, 616 N.W.2d at 106, while at the same time

applying language from Harn that equated substantial certainty with virtual

certainty that injury would occur, see 2000 S.D. 125, ¶¶ 21–24, 616 N.W.2d at 107–

08. Justice Sabers dissented in Fryer, noting that “[t]he majority opinion

confusingly refers to both ‘substantial certainty’ and ‘virtual certainty’ throughout

its opinion.” Id. ¶ 31, 616 N.W.2d at 109 (Sabers, J., dissenting). He expressed the

view that virtual certainty is a heightened standard and that “[t]he majority

opinion confusingly leaves the bench and bar to wrestle with any possible

implications and reaches the wrong decision by use of such test.” Id.

[¶15.] Justice Konenkamp also dissented. He claimed that “[t]he term

‘virtual certainty,’ used repeatedly in the majority writing, somehow crept into our

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precedent, but its lineage is obscure.” Id. ¶ 39, 616 N.W.2d at 111 (Konenkamp, J.,

dissenting). He further noted that “[i]n human behavior few things are ‘virtually

certain’ to follow any particular deed.” Id. While Justice Konenkamp agreed that

“[t]he intentional tort exception should be narrowly construed,” he disagreed that it

should be so narrow that it requires “proof that employers must foresee with ‘virtual

certainty’ the results of their deliberate acts.” Id. (citation omitted).

[¶16.] Five years later, the Court issued McMillin, 2005 S.D. 41, 695 N.W.2d

217. When concluding that summary judgment was properly granted, the majority

opinion did not refer to the virtual certainty standard or acknowledge the prior

special writings concerning the debate between whether a virtual or substantial

certainty standard applies. The Court quoted only the substantial certainty

standard expressed in this Court’s past cases when concluding that the evidence

“did not establish that there was a genuine issue of material fact as to the

[employer’s] intent to injure or the substantial certainty that injury would occur.”

Id. ¶ 24, 695 N.W.2d at 225. However, in determining that there were insufficient

facts to support a finding of substantial certainty, the Court cited language from the

Harn opinion that applied the virtual certainty standard. Id. ¶ 21, 695 N.W.2d at

224 (citing Harn, 506 N.W.2d at 100). Justice Zinter concurred, and Chief Justice

Gilbertson and Justice Konenkamp concurred in result only.

[¶17.] In his concurrence, Chief Justice Gilbertson indicated that he would

have applied the virtual certainty standard espoused first in Harn and used in

Fryer. See 2005 S.D. 41, ¶ 32, 695 N.W.2d at 225 (Gilbertson, C.J., concurring in

result). In his view, the use of a virtual certainty standard “is not an evolution of a

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common law doctrine.” Id. ¶ 33. Rather, “[i]t is simply the statutory construction of

SDCL 62-3-2 to define what constitutes an intentional tort.” Id.

[¶18.] Justice Konenkamp, in his concurrence, reiterated his view expressed

in his dissent in Fryer that the proper standard is substantial, not virtual,

certainty. Id. ¶ 34, 695 N.W.2d at 226. In support, he quoted the Restatement

(Second) of Torts § 8A (1956) explaining that “[t]he word ‘intent’ is used . . . to

denote that the actor desires to cause consequences of his act, or that he believes

that the consequences are substantially certain to result from it.” Id. ¶ 35. He also

noted that other courts use the substantial certainty standard, which carries a

lesser burden than actual or virtual certainty. Id. ¶ 36 (citing cases). In Justice

Konenkamp’s view, “[t]o the extent that they use the virtual certainty test, it is time

to discard Harn and Fryer and return to the correct standard for assessing

intentional conduct in worker’s compensation cases.” Id. ¶ 37.

[¶19.] In the third concurring opinion in McMillen, Justice Zinter

acknowledged that this Court has used both a substantial certainty standard and a

virtual certainty standard. Id. ¶ 31, 695 N.W.2d at 225 (Zinter, J., concurring).

However, he stated he “would not re-examine those cases” because the “conflict had

not been fully briefed and argued” and the majority opinion in McMillin had applied

only the substantial certainty standard. Id. In his view, the Court should “wait for

a more appropriate case” “to reconcile that conflict[.]” Id.

[¶20.] This case presents the occasion to do so. While the circuit court

applied only the substantial certainty standard and did not refer to the virtual

certainty standard, on appeal, Pro-Tec quotes and relies on the virtual certainty

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language from Harn. Pro-Tec also asserts, contrary to Harn and the special

writings in other cases, that the virtual certainty and substantial certainty

standards “are not dualistic competing standards”; rather, they “are one and the

same[.]” The Estate does not respond to this contention or refer to the virtual

certainty standard in any regard.

[¶21.] As has been established by our past cases, virtual certainty is not the

same as substantial certainty. In fact, the Court in Harn recognized as much when

it related in a footnote that the Michigan legislature had adopted a stricter

standard in response to the Michigan Supreme Court’s adoption of the substantial

certainty standard “requiring that the employer have actual (not constructive)

knowledge that injury was certain (not substantially certain) to occur[.]” See 506

N.W.2d at 96 n.1. However, while the Court in Harn indicated its intent to follow

Michigan’s direction, it is not so clear from the Court’s ultimate conclusion how it

applied a “virtual certainty” standard. See 506 N.W.2d at 100 (holding that “[t]he

facts presented in this case do not demonstrate that the employer actually intended

injury or that Harn’s injuries were substantially certain to occur or be the inevitable

outcome of the employer’s acts” (emphasis added)). The cases after Harn similarly

quoted the substantial certainty standard, even though two cases referred to the

virtual certainty language from Harn. It is noteworthy that the Court in McMillin,

the most recent case to address the workers’ compensation exclusivity exception, did

not use the phrase “virtual certainty” in resolving the appeal.

[¶22.] Because of the reference to both standards in Harn and in some of this

Court’s subsequent workers’ compensation cases and also because of the

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acknowledgement by three members of the Court in McMillin that these standards

are conflicting, we take this opportunity to resolve the debate regarding which

standard applies. To begin, SDCL 62-3-2 does not contain the more stringent

language adopted by the Michigan legislature in response to the Michigan court’s

adoption of the substantial certainty standard. 3 Our statute refers only to an

“intentional tort.” And the substantial certainty standard the Court first identified

in VerBouwens, 334 N.W.2d at 876, aligns with the mens rea the Court has required

to prove an intentional tort: “the actor desires to cause consequences of his act, or

that he believes that the consequences are substantially certain to result from it.”

Restatement (Second) of Torts §8A (1965); see Frey v. Kouf, 484 N.W.2d 864, 867

(S.D. 1992) (citing the Restatement when relating definitions of the word

“intentional”). Therefore, the substantial certainty standard adopted by this Court

prior to Harn and applied in McMillin and other workers’ compensation cases is the

appropriate standard to be applied. Under this standard, “[t]o establish intentional

conduct, more than the knowledge and appreciation of risk is necessary; the known

danger must . . . become a substantial certainty.” Jensen, 469 N.W.2d at 372

3. The Michigan statute provides in relevant part:

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.

M.C.L.A. 418.131.
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(emphasis omitted) (quoting VerBouwens, 334 N.W.2d at 876); see also Fryer, 2000

S.D. 125, ¶ 12, 616 N.W.2d at 106; Harn, 506 N.W.2d at 95.

[¶23.] We further take this opportunity to address other language originating

in VerBouwens that conflates concepts encompassed in negligence and intentional

tort standards. VerBouwens described intentional conduct as that which occurs

when “an ordinary, reasonable, prudent person would believe an injury was

substantially certain to result from his conduct.” 334 N.W.2d at 876 (first emphasis

added). This formulation of the standard lacks internal congruence because, by

definition, a reasonable person presumably would not commit an intentional tort.

[¶24.] The appellate briefs in this case quote the language from VerBouwens,

and a review of this Court’s past workers’ compensation cases reveals that a

modified version of the language has been repeated in multiple cases. See Jensen,

469 N.W.2d at 371 (quoting the language from VerBouwens that “workers may

bring suit against their employers at common law only ‘when an ordinary,

reasonable, prudent person would believe an injury was substantially certain to

result from [the employer’s] conduct’” (emphasis omitted)); Brazones, 489 N.W.2d at

905–06 (same); Harn, 506 N.W.2d at 97 (same); Benson, 1999 S.D. 38, ¶ 19, 593

N.W.2d at 406 (same); Fryer, 2000 S.D. 125, ¶ 12, 616 N.W.2d at 106 (same);

McMillin, 2005 S.D. 41, ¶¶ 12, 20, 695 N.W.2d at 222, 223–24 (same).

[¶25.] Although the latter part of the VerBouwens quote accurately refers to a

substantial certainty requirement, which must be proven to establish an intentional

tort, the reference to what an ordinary, reasonable, prudent person would believe in

examining the employer’s conduct is improper because it derives from the standard

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governing what constitutes negligence. The negligence standard requires a lower

mens rea than that required to prove either reckless conduct (which requires the

actor at issue, not just a reasonable person, to know of the risk but consciously

disregard it) or intentional conduct (requiring the actor to have the intent to injure

or actual knowledge that an injury is substantially certain to occur).

[¶26.] Even though the Court’s past cases quoted language applicable to a

negligence standard, it appears that the Court properly focused on what the

employer actually knew, rather than what an ordinary, reasonable, prudent person

would know, when determining whether the facts in each case met the substantial

certainty standard. In future cases, courts and parties should refrain from

including the language from VerBouwens regarding an ordinary, reasonable,

prudent person when relating the standard for what constitutes intentional

conduct.

Whether the circuit court erred in denying both parties’
motions for summary judgment

[¶27.] Pro-Tec contends that the circuit court misapplied the law to the

undisputed material facts in this case. In particular, Pro-Tec directs this Court to

the circuit court’s statement in its memorandum decision that “Plaintiff here cannot

prove that it was a substantial certainty that Althoff would fall off the roof at a job

site that day[.]” In Pro-Tec’s view, the circuit court should have, on this

determination alone, granted its motion for summary judgment. Pro-Tec further

claims that the circuit court erred in denying its motion for summary judgment

because the prior OSHA violations “are immaterial to the question of exclusivity”

and did not demonstrate a material issue of fact in dispute on the question whether

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“Pro-Tec had actual knowledge of a dangerous condition on the roof of the

Watertown Community Center and that the condition was substantially certain to

lead precisely to Althoff’s fall.” Rather, according to Pro-Tec, its OSHA violations

and its violation of its own safety policies on the day of and prior to Althoff’s fall

established, at most, that Pro-Tec acted negligently or recklessly on April 21, 2016.

[¶28.] In response, the Estate asserts that it does not “have to prove that Pro-

Tec knows which unharnessed employee is going to fall on any given day at any

particular time[.]” Rather, in the Estate’s view, because it is absolutely certain that

a fall from the roof would result in serious injury or death, the Estate need only

establish that Pro-Tec’s “foremen willfully, wantonly and knowingly broke their own

rules and their own written safety program which mirrors, cites and follows the

federal safety statutes.” (Emphasis added by the Estate.) According to the Estate,

because Pro-Tec “was absolutely certain of what [it was] exposing Althoff to by

intentionally failing to harness him or provide him an operable fall protection

system” summary judgment should have been entered in its favor. Alternatively,

the Estate claims that the circuit court properly denied Pro-Tec’s motion for

summary judgment because there is a genuine issue of material fact in dispute.

[¶29.] In past cases, the Court has explained “that the availability of ‘the

intentional tort exception to workers’ compensation is fact specific.’” See McMillin,

2005 S.D. 41, ¶ 15, 695 N.W.2d at 222 (quoting Harn, 506 N.W.2d at 99); see also

Fryer, 2000 S.D. 125, ¶ 15, 616 N.W.2d at 107 (same). As such, the Court has found

it helpful “to compare the factual bases proffered” in the current case “to our prior

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cases[.]” McMillin, 2005 S.D. 41, ¶ 15, 695 N.W.2d at 222; see also Fryer, 2000 S.D.

125, ¶ 15, 616 N.W.2d at 107; Benson, 1999 S.D. 38, ¶ 20, 593 N.W.2d at 407.

[¶30.] In VerBouwens, the plaintiff was injured by a saw designed and

manufactured by his employer. 334 N.W.2d at 875. The saw lacked proper safety

equipment, and in seeking to avoid the exclusivity of workers’ compensation, the

plaintiff relied on “a theory of intentional tort” based on the employer’s knowledge

of the saw’s dangerous condition and claimed that the employer’s knowledge was

sufficient to establish willful, wanton, and reckless conduct. Id. The Court

disagreed, holding that “[t]o establish intentional conduct, more than the knowledge

and appreciation of risk is necessary; the known danger must . . . become a

substantial certainty.” Id. at 876. The Court then concluded that although it “can

hypothesize that [the employer] may have known of a probable risk of injury from

its saw design[,]” the Court could not, on the record before it, “say [the employer]

was substantially certain that [the employee’s] injury would result.” Id.

[¶31.] This well-established line of reasoning in VerBouwens has been applied

in subsequent cases. See, e.g., Jensen, 469 N.W.2d at 370–73 (holding that plaintiff

employee’s injury, the loss of a finger in a bowling alley pin-setting machine, was

not substantially certain to result from employer’s failure to adequately train and

warn employees of known risks related to the tasks being performed by the injured

employee); Brazones, 489 N.W.2d at 906–07 (affirming summary judgment for

employers after holding that it was not substantially certain, from employers’

knowledge of potentially unsafe conditions inside a petroleum storage tank being

cleaned by employees without proper training and equipment, that employees

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would be killed or injured in a tank explosion while completing such tasks); Harn,

506 N.W.2d at 100 (similarly affirming summary judgment for employer,

determining that although the anti-kickback device at an old saw mill had been

intentionally disengaged to allow for continued lumber production, employee’s

injuries from a board kicking back were not substantially certain to occur from

employer’s conduct); Fryer, 2000 S.D. 125, ¶ 28, 616 N.W.2d at 109 (holding that

employer’s conduct directing employee to continue using a cleaning solvent

containing hydrochloric acid in a poorly ventilated room, despite the fact that

employer knew employee had previously become light-headed and nauseous after

using this solvent, “was clearly negligent, probably reckless and possibly wanton,”

but “it does not amount to an intentional act”).

[¶32.] In McMillin, the estates of two employees (Duane and Roger) brought

suit against Mueller Feed Mill, Inc. and Frank and Fred Mueller, individually and

as agents of the company, (collectively, the Muellers) after the employees suffocated

inside an underground molasses tank. 2005 S.D. 41, ¶ 8, 695 N.W.2d at 220. The

employees were engaged in the yearly cleaning of the molasses tank. Id. ¶ 3. When

one employee was lowered inside but had not yet reached the bottom, Frank

Mueller heard him state that he needed to be taken out because he could not

breathe. Id. ¶ 5. Frank then asked Duane and Roger to clean the tank. After

Roger lowered Duane into the tank with a forklift, Roger looked into the tank and

noticed Duane lying face down at the bottom. Id. ¶ 6. Roger yelled for help, and

Frank, who had gone back to his office, came back to assist. Id. While Frank left to

get a harness to remove Duane from the tank, Roger was lowered into the tank, and

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as he was trying to turn over Duane, he collapsed on top of him. Id. Frank called

911, and after emergency personnel arrived, Roger and Duane were pronounced

dead at the scene and the cause of death was determined to be “‘asphyxiation/

aspiration’ and/or ‘suffocation secondary to exposure to an environment high in

hydrogen sulfide and low in oxygen.’” Id. ¶ 7. It was suggested that high levels of

carbon dioxide were produced because “the molasses fermented in the hot, dry

summer which was above the average for heat and dryness.” Id.

[¶33.] The Muellers moved for summary judgment against the estates,

alleging that workers’ compensation was the estates’ exclusive remedy. Id. ¶ 8. In

response, the estates “argued that a 1999 Safety Plan, implemented by the Mill and

submitted to the Occupational Safety and Health Administration (OSHA), removed

the recovery from the exclusivity of the workers’ compensation laws and into the

realm of intentional tort law.” Id. The estates also asserted that the intentional

tort exception applied because “the safety plan was in effect, the [employers] knew

of the probable harm of entering the tank without a breathing apparatus and [the

employers] deliberately put their employees at risk.” Id.

[¶34.] After reviewing the applicable law and this Court’s past cases, we

concluded that “little evidence has been produced that either Frank or Fred Mueller

knew there was a possibility of asphyxiation when inside the molasses tank, let

alone a substantial certainty.” Id. ¶ 21, 695 N.W.2d at 224. The Court noted that a

death had occurred at the Mill previously and that the employer thereafter

implemented a safety plan approved by OSHA. Id. However, this prior death was

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not due to asphyxiation; it “was due to a fall that occurred in an area other than the

molasses tank.” Id.

[¶35.] Further, although the evidence established that moments before the

deaths occurred another employee had trouble breathing inside the tank, the Court

determined that “a person having trouble breathing when being lowered into an

underground tank with only one exit does not necessarily mean that asphyxiation is

substantially certain to occur.” Id. ¶ 22. In support of this determination, the

Court noted that the other employee stated that “he had trouble breathing because

he was claustrophobic and felt panicked.” Id. The Court also considered that Frank

Mueller had previously lowered his head into the tank without experiencing

difficulties. Id. Finally, the Court referred to the lengthy period the molasses tank

had been in operation and the numerous entries into the tank by the Muellers, their

family members, and employees that had occurred without complaints of noxious

fumes or illness. Id. ¶ 23.

[¶36.] Ultimately, the Court concluded that “[a]t most, [the Muellers’] actions

constituted negligence for not following the safety plan as approved by OSHA.” Id.

¶ 24. The Court further concluded that “[a]lthough there may have been knowledge

of a probable risk of injury, that alone does not come within the intentional tort

exception to workers’ compensation coverage.” Id. ¶ 24, 695 N.W.2d at 224–25. The

Court therefore affirmed summary judgment because the employees’ estates had

not established that there were “genuine issue[s] of material fact as to the Muellers’

intent to injure or the substantial certainty that injury would occur.” Id.

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[¶37.] In the present case, like in McMillin, the Estate relies on Pro-Tec’s

prior OSHA violations and repeated failure to follow its own safety policies and

programs. In the Estate’s view, “[t]he operative fact is that Pro-Tec’s foremen’s

deliberate daily failure to furnish all employees and Althoff [with a] safety harness

guaranteed the first 33-foot fall would result in death.” This premise is unsound for

two reasons. First, the Estate’s focus on the lack of a safety harness ignores that

Pro-Tec’s safety policies and the applicable OSHA regulations allowed for the use of

an alternative system to prevent falls, including the warning line system Pro-Tec

attempted to use, but failed to fully implement, here. Second, and more

importantly, the Estate’s focus on whether a death was certain to result from a fall

off a 33-foot roof overlooks the preceding question most relevant here—whether it

was substantially certain, from Pro-Tec’s decision not to fully implement a warning

line system, that an employee would fall off the roof. 4

4. The Estate’s further reliance on SDCL 62-4-37 is misplaced. The statute
provides:

No compensation may be allowed for any injury or death due to
the employee’s willful misconduct, including intentional self-
inflicted injury, intoxication, illegal use of any schedule I or
schedule II drug, or willful failure or refusal to use a safety
appliance furnished by the employer, or to perform a duty
required by statute. The burden of proof under this section is on
the defendant employer.

Id. (emphasis added). By its plain language, the statute governs the question
of when an employee’s conduct bars the employee from recovering workers’
compensation benefits, not whether an employee may avoid the exclusivity
provision in SDCL 62-3-2. Moreover, “willful misconduct” has been defined
more broadly than intentional conduct to include acts done “with reckless
disregard of [their] probable consequences.” Bonebright v. City of Miller,
2020 S.D. 16, ¶ 17, 941 N.W.2d 231, 236 (citation omitted).
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[¶38.] As to this question, the Estate contends that Pro-Tec acted with the

requisite knowledge based on its pattern of past conduct, namely, its prior OSHA

violations. To support this contention, the Estate cites an Oklahoma case involving

an employee falling off a roof where the Supreme Court of Oklahoma remanded for

a determination of whether the substantial certainty standard could be met. See

Wells v. Oklahoma Roofing & Sheet Metal, LLC, 457 P.3d 1020, 1029 (Okla. 2019).

Notably, the court in Wells did not examine the facts in the record related to the

employee’s fall in its discussion of the appropriate standard to apply when

considering the intentional tort exception to the workers’ compensation exclusivity

provision. Rather, the issue before the court pertained to a state law constitutional

question associated with Oklahoma’s exclusivity statute. See id. at 1026–29.

[¶39.] The Estate nevertheless highlights the Oklahoma court’s explanation

that under this standard, its “focus [is] not limited to a particular employee and the

injury sustained; but rather, the employer’s intentional acts or willful failure to

act[.]” Id. at 1025. The Estate further points to the Oklahoma court’s

determination that “[a]n employer’s knowledge may be inferred from the employer’s

conduct and all the surrounding circumstances” and that such conduct and

“circumstances can be established through circumstantial evidence.” Id. at 1027

(emphasis omitted).

[¶40.] Pro-Tec, on the other hand, asserts that the Estate cannot rely on the

prior OSHA violations to meet its burden because those violations did not relate to

the Watertown project and that the relevant evidence must be “narrowly focused on

the circumstances immediately surrounding Althoff’s fall[.]” On the contrary, to

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avoid summary judgment, the Estate can rely on any evidence from which it could

reasonably be inferred that Pro-Tec acted with the knowledge that a fall was

substantially certain to result from its conduct. Such evidence could include Pro-

Tec’s past OSHA violations regarding different projects that involved the same

circumstances known to be present on the roof in question. Therefore, even if this

evidence is insufficient in and of itself to meet the substantial certainty standard, it

is nevertheless relevant to the question of what the employer knew.

[¶41.] In reviewing the Estate’s evidence of Pro-Tec’s relevant conduct, it is

undisputed that Pro-Tec had multiple prior OSHA violations and a history of failing

to follow its safety policies and programs. It is similarly undisputed that Pro-Tec

knew of the potential dangers inherent to roofing based on its two prior OSHA

violations that were deemed “serious” and pertained to safety issues related to

preventing falls from roofs, the very same issues at play here. The Estate’s

evidence further establishes that despite these prior OSHA violations, Pro-Tec

chose not to fully implement a fall prevention system as required under OSHA and

its own safety policies.

[¶42.] However, the Estate’s evidence does not establish intentional conduct,

namely that Pro-Tec knew that its decision to not strictly comply with required

safety measures was substantially certain to result in an employee falling off the

roof. None of Pro-Tec’s prior OSHA violations for failing to implement an

appropriate fall prevention system involved an injury or death, and there is no

evidence that a Pro-Tec employee has ever fallen off a roof at a construction site.

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[¶43.] Although Althoff’s death is undoubtedly tragic, at most, the Estate’s

evidence of Pro-Tec’s past conduct establishes that Pro-Tec’s conduct on the date in

question was reckless (a conscious disregard of a known risk) or negligent (a failure

to exercise the care of an ordinary, reasonable, and prudent person despite a

foreseeable risk of injury). But as the Court in Fryer explained, only “[w]hen an

employer intends to commit injury, as opposed to negligently or recklessly

committing it,” does “the rationale for embracing workers’ compensation

disappear[ ].” 2000 S.D. 125, ¶ 10, 616 N.W.2d at 105. “To establish intentional

conduct, more than the knowledge and appreciation of risk is necessary[.]” See also

VerBouwens, 334 N.W.2d at 876. Therefore, while the circuit court properly denied

the Estate’s motion for summary judgment by determining that although “[t]here

may have been a substantial likelihood that an employee could fall to his death,”

“[a] substantial likelihood is not substantial certainty[,]” the court erred in denying

Pro-Tec’s motion for summary judgment. Pro-Tec’s knowledge that a failure to

strictly follow OSHA requirements or its own safety policies could result in a fall

does not alone establish a material issue of fact in dispute on the question whether

Pro-Tec committed an intentional act, i.e., that Pro-Tec knew that a fall was

substantially certain to occur because of its conduct.

[¶44.] Affirmed in part and reversed in part.

[¶45.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,

concur.

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