(dissenting).
[¶ 32.] I respectfully dissent. Article VI, Section 20, of the South Dakota Constitution provides: “All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.” Generally, courts have determined the intent behind constitutional “open courts” provisions is “to preserve the common-law right of action for injury to person or property[.]” Kyllo v. Panzer, 535 N.W.2d 896, 900 (S.D.1995) (citations omitted).
*533[¶ 33.] South Dakota’s first negligence statute, codified at SDCL 20-9-1, was enacted in 1877, twelve years prior to the birth of our state constitution in 1889. SDCL 20-9-1 provides: “[e]very person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.” This statute is a “simple codification of the common law of negligence.” Matter of Certif. of Questions of Law, 544 N.W.2d 183, 188 (S.D.1996).
[¶ 34.] As we recently stated in Matter of Certif. of Questions of Law:
“Open courts” is not a guarantee that all injured persons will receive full compensation or that remedies once existent will always remain so. Kyllo, 535 N.W.2d at 901; cf Wright, 391 S.E.2d at 570. Nor does this provision assure that a substantive cause of action once recognized in the common law will remain immune from legislative or judicial limitation or elimination. Kyllo, 535 N.W.2d at 901; Wright, 391 S.E.2d at 570. Otherwise, the state of tort law would remain frozen in the nineteenth century, immutable and eventually, obsolete. Reasonable restrictions can be imposed upon available remedies. Kyllo, 535 N.W.2d at 901; Baatz v. Arrow Bar, 426 N.W.2d 298, 304 (S.D.1988). Our function is not to elevate common-law remedies over the Legislature’s ability to alter those remedies, but rather, we are to interpret the laws as they affect the “life, liberty, or property of the citizens of the State.” Kyllo, 535 N.W.2d at 901.
544 N.W.2d at 203. The legislature can impose only reasonable restrictions that do not infringe on common-law actions guaranteed by the constitution. Kyllo 535 N.W.2d at 903.
[¶ 35.] SDCL ch. 42-11 provides tort liability to those involved in equine activities for injuries resulting from the “inherent risks of equine activities.” Specifically, SDCL 42-11-2 provides, “No equine activity sponsor, equine professional, doctor of veterinary medicine, or any other person, is liable for an injury to or the death of a participant resulting from the inherent risks of equine activities.” (emphasis added). SDCL 42-11-1(6) defines “inherent risks of equine activities” as
those dangers or conditions which are an integral part of equine activities, including:
(a) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them;
(b) The unpredictability of the animal’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other ani- ' mals;
(c) Certain hazards such as surface and subsurface conditions;
(d) Collisions with other animals or objects;
(e) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability, (emphasis added).
The trial court found SDCL 425 — 11—l(6)(e) unconstitutionally violated South Dakota’s open courts provision, not being a reasonable restriction on an individual’s statutory and constitutional right to seek redress for their injuries.
[¶ 36.] Horsemens asserts when SDCL ch. 42-11 is examined as a whole, the legislature has placed a reasonable restriction on negligence actions by heightening the standard needed for recovery from “negligence” to “willful or wanton disregard.” Horsemens argues that SDCL 42-11-39 provides exceptions to the general non-liability expressed by SDCL 42-11-2. Specifically, that the legislature’s require*534ment of “willful or wanton disregard” in SDCL 42-11-3(3) is a reasonable restriction on negligence actions.
[¶ 37.] However, Horsemens’ heightened standard argument should fail because it misinterprets South Dakota’s negligence law. While some courts consider willful and wanton conduct to be a higher degree of negligence, other courts consider willful and wanton conduct a different kind of conduct than negligence. See 57A Am-Jur2d § 257-62. South Dakota case law clearly defines willful and wanton conduct as being a distinct kind of conduct from negligence.
Willful and wanton misconduct is something more than ordinary negligence but less than deliberate or intentional conduct. Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153 (1938). Conduct is gross, willful, wanton, or reckless when a person acts or fails to act, with a conscious realization that injury is a probable, as distinguished from a possible (ordinary negligence), result of such conduct. Granflaten, 66 S.D. 335, 283 N.W. 153. Contradistinguished, intentional tortious conduct is when an ordinary, reasonable, prudent person would believe an injury was substantially certain to result from his conduct. Spivey v. Battaglia, 258 So.2d 815 (Fla.1972). To establish intentional conduct, more than the knowledge and appreciation of risk is necessary; the known danger must cease to become only a foreseeable risk which an ordinary, reasonable, prudent person would avoid (ordinary negligence), and become a substantial certainty. Spivey, 258 So.2d 815. (emphasis added).
VerBouwens v. Hamm Wood Products, 334 N.W.2d 874, 876 (S.D.1983). See also Fenner v. Trimac Transp., Inc., 554 N.W.2d 485, 487 (S.D.1996); Harn v. Continental Lumber Co., 506 N.W.2d 91, 96 (S.D.1993); and Brazones v. Prothe, 489 N.W.2d 900, 905 (S.D.1992). “[Willful and wanton misconduct] describes conduct which transcends negligence and is different in kind and characteristics. It is conduct which partakes to some appreciable extent, though not entirely, of the nature of a deliberate and intentional wrong.” (emphasis added). Tranby v. Brodock, 348 N.W.2d 458, 461 (S.D.1984).
[¶ 38.] Prior case law clearly distinguishes willful and wanton conduct as being distinct from negligence. The legislature’s requirement of willful and wanton conduct rather than mere negligence operates to abolish a cause of action based on negligence, not limit it.
[¶ 39.] The common law of negligence is codified at SDCL 20-9-1, being enacted twelve years prior to South Dakota’s constitution. Kyllo at 899. In Kyllo, this Court, stated the following regarding negligence law:
Negligence law must have some degree of flexibility. However, it is an entirely different and unacceptable proposition to assume that the flexibility of our neg*535ligence law may act in degradation of the fundamental foundation of our state constitution. Our constitution ... is solid core upon which all our state laws must be premised. Clearly and unequi-vocably, our constitution directs that the courts of this state shall be open to the injured and oppressed. We are unable to view this constitutional mandate as a faint echo to be skirted or ignored, (citations omitted).
Kyllo, 535 N.W.2d at 903 (quoting Daugaard v. Baltic Co-op. Bldg. Supply Ass’n, 349 N.W.2d 419, 425 (S.D.1984)).10 In Kyl-lo, this Court found statutes which extended sovereign immunity to state employees violated the open courts provision of South Dakota’s constitution, stating:
Regardless of state employment, Employees still owed the same duty of care to drive safely as any other driver not so employed. Employees’ claimed immunization from suit does not extend to negligent individuals in any other sector of employment. The legislature cannot extend it to negligent individuals who work for the state.
Kyllo, 535 N.W.2d at 903. As the trial court stated, “Those who participate in an equine activity must be held to exercise the same care as a reasonable and prudent person would exercise under the same or similar circumstances, just as those who may be watching in the' stands, driving down the highway or sitting in their living room.”
[¶ 40.] The legislature can impose only reasonable restrictions that do not infringe on common-law actions guaranteed by the constitution. Id. at 903. An individual’s right to seek redress with regard to negligent actors is guaranteed by common law and by SDCL 20-9-1, which are supported by the “open courts” provision of the South Dakota Constitution. Kyllo, 535 N.W.2d at 901.
[¶ 41.] The immunity from liability for the ordinary negligence of another participant provided by SDCL 42 — 11—1 (6)(e) is not a reasonable restriction on an individuals statutory and constitutional right to seek redress for the negligence of another under South Dakota’s open courts provision.
. SDCL 42-11-3 provides:
Nothing in this chapter prevents or limits the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or other person:
*534(1) Provides the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it causes the injury; or provides the animal and fails to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and determine the ability of the participant to safely manage the particular animal based on the participant’s representations of his ability;
(2) Owns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustains any injury because of a dangerous latent condition which was known to the equine activity sponsor, equine professional, or person and for which warning signs had not been conspicuously posted;
(3) Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant and that causes the injury;
(4) Intentionally injures the participant.
. This case is easily distinguished from our decision in Wegleitner v. Sattler, 582 N.W.2d 688 (S.D.1998). Wegleitner involved a challenge under South Dakota’s open courts provision to South Dakota’s statutory scheme regulating the selling of alcohol found in SDCL 35-11-1 and SDCL 35-4-78.
Unlike the present case where SDCL 20-9-1, enacted in 1877, codified the common law of negligence, at common law tavern owners are not liable. Wegleitner, 582 N.W.2d at 690 (quoting 45 AmJur2d Intoxicating Liquors § 553 (1969)). This common law rule of tavern owner non-liability is codified in SDCL 35-11-1. In addition, SDCL 35-4-78 regulates the selling of alcoholic beverages.
In Wegleitner, it was held that SDCL 35-4-78 and SDCL 35-11-1 clearly express the legislative intent on tavern owner liability. Under the open courts provision of art. VI § 20 there was nothing in existing statutes or the common law to find SDCL 35-4-78 and SDCL 35-11-1 unconstitutional. In the present case, the legislature’s passage of SDCL 42 — 11—1 (6)(e), which provides immunity for injuries caused by the ordinary negligence of another participant, is an unreasonable restriction on actions for negligence guaranteed by SDCL 20-9-1, which codified the common law of negligence.