dissenting.
In my opinion, the trial court erred in dismissing the Agee Plaintiffs’ cause for lack of subject matter jurisdiction. I therefore dissent from the majority’s opinion. On a motion to dismiss for lack of subject matter jurisdiction, the party seeking jurisdiction must prove only by a preponderance of the evidence that jurisdiction lies with the trial court. Under these circumstances, I believe that the trial court possesses broad discretion with regard to admissibility of the evidence issues. I further believe that the trial court should liberally admit and consider proffered evidence.
Literal adherence to the dictates of Westinghouse by the trial court in this case essentially closed the courthouse doors to these plaintiffs and denied them a remedy. The trial court’s interpretation of Baker would in effect preclude any and all employees with tort claims against their employers from surviving a 12(B)(1) motion to dismiss based on lack of subject matter jurisdiction. The burden of proof on a rule 12(B)(1) motion requires establishment of an issue by a preponderance of the evidence. Hence, it is not as if we are here dealing with a jury and the ultimate issue of liability. Within the confines of the law, we must openly afford access to our courts so that injured plaintiffs may exercise their right to a tort remedy.
In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court has considerable latitude in devising procedures to bring to light the facts pertinent to jurisdiction, and it may consider any evidence submitted. Perry, 637 N.E.2d at 1286-87. Based on the considerable latitude afforded to the trial court in making a determination regarding subject matter jurisdiction, I believe that the trial court should have considered all of the evidence offered by the Plaintiffs before rendering its decision.
In Lawson v. Raney Mfg., Inc., 678 N.E.2d 122, 125 (Ind.Ct.App.1997), reh’g denied, trans. denied, a panel of this court acknowledged that “short of a concession by the employer that he had actual knowledge an injury was certain to occur, the plaintiff-employee would have to demonstrate actual knowledge by circumstantial evidence.” Id. at 128. The Plaintiffs here presented an abundance of evidence to the trial court in order to aid the court in deciding whether the exercise of jurisdiction was warranted. Specifically, the Plaintiffs presented evidence that Central Soya was cited by the Indiana Department of Labor for thirty-four knowing and serious violations of federal and state *629safety standards, that Central Soya had failed to address chronic safety issues with regard to the extraction process and that employees had complained regarding the safety of the process and were assured of its safety.
Although the court in Lawson did not find actual knowledge to exist, the court said that the employee could have met her burden had she presented evidence that many employees suffered similar injuries on the same type of machine; that there had been many complaints to supervisors; or that supervisors had regularly observed and approved of the use of the defective machine. Lawson, 678 N.E.2d at 128. I believe that the Agee Plaintiffs have offered just the type of evidence that could be sufficient to establish intent.
Based on the considerable latitude afforded to the trial court in making a determination regarding subject matter jurisdiction, I believe that the trial court should have considered all of the evidence offered by the Plaintiffs before rendering its decision. I would therefore remand this ease for the trial court to consider all of the circumstan-’ tial evidence presented by the Plaintiffs, and to determine, in light of this evidence, whether the Plaintiffs have met their burden of proving that Central Soya possessed actual knowledge that injury was certain to occur as a result of the manner in which it operated its Indianapolis plant.