(dissenting).
[¶ 31.] The majority opinion confusingly refers to both “substantial certainty” and “virtual certainty” throughout its opinion. “Virtual certainty” should not be used to increase the “substantial certainty” test. The majority opinion confusingly leaves the bench and bar to wrestle with any possible implications and reaches the wrong decision by use of such test.
[¶ 32.] The majority opinion quotes from Harn v. Continental Lumber Co., 506 N.W.2d 91 (S.D.1993) throughout for support of its “virtual certainty” test. Without citing to any authority, the Harn court stated:
Substantial certainty of injury to the employee should be equated with virtual certainty to be considered an intentional tort. Any less of a showing would render our workmen’s compensation scheme a hollow shell and would encourage endless litigation in the courts. If an employee worked under such conditions where the employer actually knew of the danger and that injury was substantially certain (virtually certain) to occur, and such injury did occur, the employer should not escape civil liability for placing the employee in such a dangerous position.
Id. at 100. Up to that point, “virtual certainty” was never associated with the “substantial certainty” test. Only two members of the current court participated in that case and I restate my special concurrence therein:
In my view, the test from [Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 372 (S.D.1991)] is solid and workable and should not be altered. ‘The worker must ... demonstrate an actual intent by the employer to injure or a substantial certainty that injury will be the inevitable outcome of employer’s conduct.’ Jensen, 469 N.W.2d at 372 (citations omitted). Just as ‘substantial certainty should not be equated with substantial likelihood,’ id (citation omitted), neither should it be altered to mean ‘virtually certain.’
Id. at 100 (Sabers, J., concurring specially)-
*110[¶ 33.] The Florida Supreme Court recognizes that there is a distinction between “substantial certainty” and “virtual certainty:”
We recognize that some courts have elevated the standard employees must prove from ‘substantial certainty’ to ‘virtual certainty.’ Although we continue to find that ‘substantial certainty’ requires a showing greater than ‘gross negligence,’ we emphasize that the appropriate standard is ‘substantial certainty,’ not the heightened ‘virtual certainty’ standard.
Turner v. PCR, Inc., 754 So.2d 683, 687 n.4 (Fla. 2000) (internal citations omitted). Therefore, the Turner court receded from any previous language which “suggest[ed] [that] the ‘substantial certainty’ test requires a showing of ‘virtual certainty.’ ” Id. We should do the same and return to the “substantial certainty” test.
[¶ 34.] Under our settled case law of Wilson, 157 N.W.2d at 21, and Thiewes, 448 N.W.2d at 3, the burden is on the moving party to show that there is no genuine issue of material fact. Here, the moving party is Krantz and he failed to meet his burden. In addition, it is obvious here that even under the incorrect “virtual certainty” test, reasonable minds differ. Therefore, the question is for the jury, not the trial court nor this Court.
[¶ 35.] For these reasons and the reasons expressed in Justice Konenkamp’s dissent, I dissent.