(dissenting).
[¶ 36.] This is a close case, admittedly, but close cases are decided in trials, not in chambers. Well advised is the precept that summary judgment cannot replace a trial. Yet with phrases like “it is simply not rational to believe,” and the evidence “lends credence of [the employer’s] position,” the Court renders findings as if it were a jury. If we are to adhere to the strictures of summary judgment, however, this case should go to trial. Allow a jury to decide the employer’s intent when he knowingly exposed his employee to toxic acid fumes in an unventilated room and then claimed the resulting injury was an accident.
[¶ 37.] The employee’s complaint alleged an intentional tort, taking the matter outside the purview of workers’ compensation. The circuit court properly denied summary judgment because a genuine issue of fact remains on whether the employer intended his employee to suffer exposure to acid fumes, by ordering her to work with the acid in a small, unventilated space knowing that adverse consequences were substantially certain to occur. Summary judgment is -proper only when a court can conclude that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(c).
[¶ 38.] If an employer-caused injury is intentional, workers’ compensation allows an exception to the exclusive remedies for employee work-related injuries:
The rights and remedies herein 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 such employee, his personal representatives, dependents, or next of kin, on account of such injury or death against his employer or any employee, partner, officer or director of such employer, except rights and remedies arising from intentional tort.
SDCL 62-3-2. Intentional torts occur when employers desire to cause the consequences of their acts, or they believe that the consequences are substantially certain to result from them. See Black’s Law Dictionary 810 (6th Ed. 1991) (defining intentionally); Restatement (Third) of Torts § 1 (1999) (defining intentional). See also Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 372 (S.D.1991) (citations omitted) (intent to injure denotes “a substantial certainty that injury will be the inevitable outcome of the employer’s conduct.”)
*111[¶ 39.] The term “virtual certainty,” used repeatedly in the majority writing, somehow crept into our precedent, but its lineage is obscure. See Harn v. Continental Lumber Co., 506 N.W.2d 91, 100 (S.D.1993) (first and last time the term used until now). In human behavior few things are “virtually certain” to follow any particular deed. The intentional tort exception should be narrowly construed, of course, but not to the extent of requiring proof that employers must foresee with “virtual certainty” the results of their deliberate acts. Benson v. Goble, 1999 SD 38, ¶ 19, 593 N.W.2d 402, 406 (citations omitted) (narrow construction required). Substantial certainty is the appropriate standard. (Brazones v. Prothe, 489 N.W.2d 900, 906 (S.D.1992); Jensen, 469 N.W.2d at 372; VerBouwens v. Hamm Wood Prod., 334 N.W.2d 874, 876 (S.D.1983)). See also Harn, 506 N.W.2d at 100 (Sabers, J., concurring) (citations omitted).
[¶ 40.] To commit an intentional act taking the matter out of the domain of workers’ compensation, employers must intend not only the injurious act, but the injury as well. 6 Larson’s Workers’ Compensation Law § 103.05[6], at 103-44 to -45. How can we know that injury was intended? If probability rises to the extent that employers know injury is certain or substantially certain to occur, but in willful disregard of that knowledge they still require their employees to perform, employers are deemed by law to have intended the result.
[¶41.] Kranz himself selected the acid with its warning label stating that it is “for exterior use only,” that it must be diluted, and that the vapors are harmful when used improperly. In directing his employee how to use it he disregarded each of those warnings, and then gave an impossible command: “Try not to breathe it.” When Fryer complained to Kranz about the fumes making her feel lightheaded, he replied: “Well, when that happens, then you need to take a break and you need to go get some air.” Kranz used the word “when” rather than “if.” He himself had suffered from exposure to the acid fumes. He told Fryer that he needed to “take a break” from the fumes to get some air. And although Kranz had joined Fryer in working with the acid before she complained, he sent her back to the small room alone. Certainly there is a genuine issue of fact whether Kranz knew with substantial certainty the adverse effects to come.
[¶ 42.] In Brazones the plaintiffs suffered burns after their employer sent them to clean a petroleum storage tank without proper equipment and without training on how to perform the job safely. Brazones, 489 N.W.2d at 903, 907. There, we wrote:
These allegations may amount to knowledge of a probable risk of injury to plaintiffs on defendants’ part. However, these facts do not come within South Dakota’s intentional tort exception to [workers’] compensation coverage as a matter of law. We are unable to say that defendants were substantially certain that plaintiffs’ injuries would be the inevitable outcome of defendants’ conduct, much less to say that defendants actually intended plaintiffs’ injuries.
Id. at 907. Before the mishap in Brazones took place, there was only a chance an injury could occur. It was perhaps a likely chance, but still just a chance.
[¶ 43.] Here, on the other hand, events went beyond chance. Before Fryer was hospitalized from her last exposure to the acid fumes, an earlier exposure occurred with adverse consequences that she told Kranz about. In her complaint, Fryer alleged that Kranz “had experience with mu-riatic acid and was aware of its dangerous propensities, but nevertheless, intentionally directed [Fryer] to use the same in the small, unventilated area even after she had advised him that use of the product in larger ventilated areas had caused her dizziness, nausea and headaches.”
[¶ 44.] Professor Larson’s treatise criticizes decisions eroding the intentional tort exception, but nonetheless concedes that in *112this type of circumstance a true intentional tort can be shown. Using as an example a manslaughter case where the employer allowed workers to be exposed to cyanide gas, Larson points out that the employer knew about the danger because the labels on the chemical containers had warnings. Moreover, the workers complained daily about the fumes. One worker eventually died and others were injured. The corporate officers were found guilty of involuntary manslaughter. In contrasting this case with others where only a high probability of injury could be shown, Larson explains that the fumes were “continuously operative, and the employer knew it.” Larson, supra, § 103.05[6], at 103-41, 103-42. In other cases, injury might or might not occur, depending on several variables. But in Larson’s example,
exposure to fumes did in fact occur. The only possible “unknown” might have been the effect of inhaling the fumes, but this unknown was removed by the plain warning on the package. The hiring of only workers who could not read warning labels confirms that the employer wanted those employees to continue to inhale these and suffer these known consequences. A court could well say that this amounted to intending the injury.
Id. at 103-42. (emphasis in original). Likewise, Kranz knew that Fryer had earlier suffered adverse effects from the fumes, knew that he himself had reacted to them, knew from the warning label that the acid should not be used as he was ordering his employee to use it, and knew that by following his direction Fryer would be exposed to concentrated fumes in the small space he ordered her to clean. See Cunningham v. Anchor Hocking Corp., 558 So.2d 93 (Fla.Dist.Ct.App.1990) (employer knowingly exposed workers to toxic fumes).
[¶ 45.] Contrast Larson’s hypothetical with what happened in Schefsky v. Evening News Ass’n, 169 Mich.App. 223, 425 N.W.2d 768 (Mich.App.1988). There, the employee claimed to have developed chemical asthma from using and inhaling solvents while cleaning printing presses. Id. at 769. In denying his tort claim, the court reasoned that the employee did not assert that the employer had “actual knowledge that an injury, such as chemical asthma or any other serious or permanent respiratory disease, was certain to occur following exposure to the solvents[.]” Id. at 771. In fact, the employee conceded that the “[d]efendant [employer] may not have specifically intended plaintiffs illness.” Id. That the worker might suffer any adverse consequences from the solvents remained unknown to both employer and employee.
[¶ 46.] Suppose in Harn that before any injury, the employer earlier witnessed the employee nearly being struck by a flying chunk of wood because a safety guard was not in place. And suppose, like Kranz, the employer responded, “Well, when that happens, you need to take a break.” Would there still have been no intentional tort? Or, suppose in Brazones the employees had complained about flare-ups in the storage tank they were cleaning, and the employer said, “Well, when that happens you need to get some air,” or “try not to get burned.” Even with these added facts we might well have ruled that because a flying chunk of wood or a flare-up are matters of chance, unpredictable, they would still not place the employer within the exception. But here, as in Larson’s example, the exposure and adverse effects were “continuously operative.”
[¶ 47.] While Fryer does not suggest that Kranz spitefully tried to hurt her, she does assert that Kranz knew injury was substantially certain to occur from exposure to acidic vapors. We must never forget that we view not only the facts favorably to the nonmoving party, but also the reasonable inferences from those facts. Wilson v. Great N. Ry. Co., 83 S.D. 207, 157 N.W.2d 19, 22 (1968) (citations omitted). In this light, Kranz’s familiarity with this toxic chemical, his knowledge that it *113was causing Fryer problems, and his direction that she continue working in the same fashion in an even more confined area, all tend to show knowledge that his conduct was substantially certain to result in injury. See Brazones, 489 N.W.2d at 907 (citations omitted). It was impossible to use the product without adverse effects under the conditions that Fryer was instructed to use it, undiluted and in a small, unventilated room where the fumes would concentrate. See Kielwein v. Gulf Nuclear, Inc., 783 S.W.2d 746, 748 (Tex.App.1990) (unprotected worker sent to clean up radioactive isotope spill).
[¶ 48.] In situations where dangerous equipment or conditions create only the probability of injury, harm may yet remain a matter of chance. On the other hand, breathing concentrated acid fumes creates a hazard where an employee cannot be exposed without suffering adverse effects. Thus injury becomes no longer accidental in nature. See Larson, supra, § 103.05[6] at 03^45. In these circumstances, we are compelled to let the fact finder decide whether injury was so certain to result from the employer’s conduct as to create an inference that it was intended. A genuine issue of material fact exists on whether Kranz acted with intent to injure.
[¶ 49.] The denial of summary judgment should be affirmed.