concurring;
I concur in the majority opinion as I do not believe it represents a departure from this Court’s construction of *725the deliberate intent exception1 to the immunity from suits for damages extended to employers who subscribe to the Workmen’s Compensation Fund.2
The differences between our first case, Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 (1933), and the last, Eisnaugle v. Booth, W.Va, 226 S.E.2d 259 (1976), are at best semantical. Both Allen v. Raleigh-Wyoming Mining Co., 117 W.Va. 631, 186 S.E. 612 (1936), and Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951), share a common bond with Maynard v. Island Creek Coal Co., 115 W.Va. 249, 175 S.E. 70 (1934), in that they utilize this key passage from Maynard:
“It may be that the carelessness, indifference and negligence of any employer may be so wanton as to warrant a judicial determination that his ulterior intent was to inflict injury.” [115 W. Va. at 253, 175 S.E. at 72]
Maynard also spoke of the exemption from liability to employees for injuries received resulting from their employment, “except, if such injuries be willfully inflicted *726by the employer.” [115 W. Va. at 252, 175 S.E. at 71] [emphasis added]
The divergent language in our cases arises from the struggle to place the term “deliberate intention” into an existing legal compartment. Judge Kenna identified this problem in Collins, stating:
“There are definitions of intent in the books more variant than the manifold uses to which that word is put. They range from the statement that a man is presumed to intend the ordinary and usual consequences of his acts, to definitions which make intent practically depend upon the existence of actual malice. In its nature, it is bound to be the existence of a state of mind, and since that state of mind must be arrived at in proof by the establishment of facts extraneous to the mind itself, it seems to us that it is always bound to be a deduction or conclusion from the facts so established. In the very nature of things, these facts, in the main, are matters of evidence and not of pleading.” [171 S.E. at 759; 114 W. Va. at 235]
Generally, the law recognizes that intention3 can be ascertained either from verbal or nonverbal conduct of a party. The simplest proof is where the actor admits he consciously intended his conduct to produce the result it did.
The more usual situation is where intention must be inferred from a person’s conduct.4 Here, the inquiry is *727directed at the degree of probability that the conduct will produce a given result. The higher degree of probability that a given result will follow, the greater the intention is inferred from the conduct.
The link between the conduct and resulting harm is not only a causative inquiry, but includes another factor by which the conduct is judged — the degree of seriousness of harm. Conduct which carries a high probability that serious harm will result is high on the scale of intentional conduct. Finally, the standard by which the conduct and its resulting harm is judged to determine its “intentional” characteristics is not only the subjective knowledge of the individual, but what would be known by a reasonable person.5
It is apparent that because intent is measured by the degree of harm occasioned by given conduct, the law labels both the conduct and the intent. Thus we speak of negligent conduct, meaning it is at the bottom of the intent scale, which is to say conduct that is not inten*728tional. At the far end of the scale is the type of intent necessary for first degree murder, which is beyond the concept of malice and involves deliberation and premeditation — the specific intent to kill. State v. Starkey, _ W. Va.-, 244 S.E.2d 219 (1978); State v. Stevenson, 147 W. Va. 211, 127 S.E.2d 638 (1962).6
The problem, of course, is an ancient one. It is the attempt to label or categorize certain acts in order to fit them into our precedential system of law. Admittedly, there is an almost infinite number of variations of conduct such that any process of labeling or categorizing can be criticized as imprecise. Yet, the law requires the effort of systematization to be done, or runs the risk of deciding cases not precedentially, but purely on an ad hoc basis.
It seems to me that a fair reading of our prior cases in this area demonstrates that it was never contemplated that the term “deliberate intention” referred only to the type of intent necesary to support a charge of first or second degree murder. If such were the case, there would have been no justification in Allen and Brewer, which were the first cases to use the term “specific intent,” to quote the Maynard statement of a wanton injury. Moreover, Maynard’s use of the term “willfully inflicted” as being sufficient to hold the employer liable for an injury has never been criticized.
Certainly all of our cases in this field have held that gross negligence is not equivalent with deliberate intent. To my mind the key language in the majority opinion is:
*729“We wish to make clear that we are using the words ‘wilful,’ ‘wanton,’ and ‘reckless misconduct’ synonymously, and that the conduct removing the immunity bar must be undertaken with a knowledge and an appreciation of the high degree of risk of physical harm to another created thereby.” [._W. Va. at_,_S.E.2d at_, Majority Opinion at 706]
I believe this rule is perfectly consistent with our former cases and, if applied, would not have changed the result in any of them. This rule, as I understand it, builds on the standard for wilfulness or wantonness in Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944), which “... imports premeditation or knowledge and consciousness that injury is likely to result ... [127 W. Va. at 346, 32 S.E.2d at 748] by adding the concept that there is knowledge the conduct carries a “high degree of risk of physical harm.” This is no insubstantial hurdle of proof.
In view of the tone of the dissent,7 I am constrained to state that I believe his theoretical fears of increased nuisance suits are not well-founded. It is an argument customarily advanced by those who have had little actual trial experience.
No capable trial lawyer can survive by filing nuisance suits, as the contingent fee contract rewards only those who can persevere to a decent monetary recovery. The type of case here involved is complex and depends not on a mere showing that certain safety regulations have *730been violated, but proof that the employer consciously sanctioned repetitive violations, knowing he had thereby exposed his employee to a high risk of physical harm, which risk did in fact cause the injury.
Because this type of case is often complex and since it requires proof of intent, from a procedural standpoint early disposition by a motion to dismiss or motion for summary judgment based on conclusionary affidavits is not warranted. The rule is stated in 10 Wright & Miller, Federal Practice and Procedure: Civil § 2730 (1973):
“Since the information relating to state of mind generally is within the exclusive knowledge of one of the litigants and can be evaluated only on the basis of circumstantial evidence, the other parties normally should have an opportunity to engage in discovery before a summary judgement is rendered. But even this may not be enough. Inasmuch as a determination of someone’s state of mind usually entails the drawing of factual inferences as to which reasonable men might differ — a function traditionally left to the jury — summary judgment often will be an inappropriate means of resolving an issue of this character.”
See also Conrad v. Delta Air Lines, Inc., 494 F.2d 914 (7th Cir. 1974); Denny v. Seaboard Lacquer, Inc., 487 F.2d 485 (4th Cir. 1973); Friedman v. Meyers, 482 F.2d 435 (2nd Cir. 1973); 6 Moore’s Federal Practice § 56-17 (41.-1) (2d ed. 1976); 3 Barron & Holtzoff, Federal Practice and Procedure § 1232.2 (1958).
In my view the discovery developed in Mandolidis displayed sufficient facts, as outlined in the majority opinion, to preclude the granting of a summary judgment against the plaintiff on the issue of deliberate intention. If the plaintiff can sustain the same level of proof at trial, the question of deliberate intention would be for the jury.
Both Snodgrass and Dishmon were prematurely terminated. In the former by conclusionary affidavits, and *731the latter based solely on the claimed inadequacy of the complaint. All we have held is that these two cases are entitled to further development through discovery before the issue of deliberate intention can be determined under the guidelines of our opinion.
W.Va. Code, 23-2-6a:
“The immunity from liability set out in the preceding section [§ 23-2-6] shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer’s business and does not inflict an injury with deliberate intention.”
W.Va. Code, 23-4-2, reads in material part:
“If injury or death result to any employee from the deliberate intention of his employer to produce such injury or death, the employee, the widow, widower, child or dependent of the employee shall have the privilege to take under this chapter, and shall also have cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable under this chapter.”
The applicable portion of W.Va. Code, 23-2-6, is:
“Any employer subject to this chapter who shall subscribe and pay into the workmen’s compensation fund ... shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after so subscribing ...”
I consider the term “intention” to be substantially synonymous to “intent.” The American Heritage Dictionary of the English Language 682-83 (1973), summarizes:
“Intention signifies a course of action that one proposes to follow. Intent, often a legal term, more strongly implies a fixed course pursued deliberately, ...”
In criminal law where “intent” receives the greatest attention, it was not until Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S.Ct. 1881 (1975), that serious examination began to be made on the validity of factual presumptions dealing with intent as they opposed the presumption of innocence. See also State v. Myers, _W. Va_, __S.E.2d_(1978) (No. 13896); State v. Starkey, *727_ W. Va. _, 244 S.E.2d 219 (1978); State ex rel. Cogar v. Kidd,_W. Va_, 234 S.E.2d 899 (1977); State v. Pendry,_ W. Va. _, 227 S.E.2d 210 (1976); Pinkerton v. Farr, -W. Va. _, 220 S.E.2d 682 (1975).
Justice Holmes discusses the question of intent in both the criminal and intentional tort fields in O. W. Holmes, The Common Law (1881). He traces the historical precedents and arrives at a parallel conclusion: “The test of criminality in such cases is the degree of danger shown by experience to attend the act under the circumstances,” Id. at 75, and as to intentional wrongs: “In general this question will be determined by considering the degree of danger attending the act or conduct under the known circumstances.” Id. at 162. W. LaFave & A. Scott, Criminal Law §§ 28, 30 (1972), extensively discuss the concept of intent from a criminal and civil standpoint. In summarizing as to the former, they state: “Intent has traditionally been defined to include knowledge, and thus it is usually said that one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts.” Id. at 195-96. In settling the concept of “recklessness” they state: “Something more is usually required for criminal liability, either (1) a greater risk of harm, (2) subjective awareness of the risk by the defendant, or (3) both. The word ‘recklessness’ is most often used to describe the third situation, ...” Id. at 208.
W. Prosser, Torts 184 (4th ed. 1971), discusses the differences between criminal intent and the intent necessary for an intentional tort, stating: “Lying between intent to do harm, which as we have seen includes proceeding with the knowledge that the harm is substantially certain to occur, and the mere unreasonable risk of harm to another involved in ordinary negligence, there is a penumbra of what has been called ‘quasi intent.’ To this area the words ‘wilful,’ ‘wanton’ or ‘reckless’ are customarily applied; and sometimes in a single sentence, all three.”
Despite the claimed uniqueness of the “tonal” dissent, the writer apparently has missed hearing certain atonalities to his own opinions. See, e.g., Rosier, Adm. v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973) (Justices Berry, Caplan, Haden and Sprouse concurring); Jones v. Laird Foundation, Inc., 156 W.Va. 479, 195 S.E.2d 821 (1973) (Justices Berry, Caplan, Haden and Sprouse concurring). I do not sense that the dissent takes issue with the majority’s test since he applies it to find Mandolidis as having “legitimate grounds for recovery.” This conclusion is based on the dissenter’s statement, “These facts, if proven, demonstrate more than ever gross negligence; they demonstrate a wilful, wanton and reckless disregard for human safety.” [Dissent at 3]