(concurring in result).
[¶ 34.] I agree with the majority writing in its conclusion that there is little evidence in this tragic case to show that the employer knew there was a possibility, much less a substantial certainty, of asphyxiation. I write only to express my disagreement with the precedent the majority relies on: Harn v. Contl Lumber Co., 506 N.W.2d 91 (S.D.1993), and Fryer v. Kranz, 2000 SD 125, 616 N.W.2d 102. In Harn, this Court, for the first time, *226introduced the “virtual certainty” test for the intentional tort exception to workers compensation cases. Harn, 506 N.W.2d at 95, 100; SDCL 62-3-2 (intentional torts excepted). Again, in Fryer, the Court reaffirmed its use of this improper test. 2000 SD 125, 12, 616 N.W.2d at 106. Substantial certainty is the appropriate standard, not virtual certainty. See Brazones v. Prothe, 489 N.W.2d 900, 906 (S.D.1992); Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 372 (S.D.1991); VerBouwens v. Hamm Wood Prod., 334 N.W.2d 874, 876 (S.D.1983).
[¶ 35.] Section 8A of the Restatement of Torts provides: “The word ‘intent’ is used ... to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” 1 Restatement (Second) ToRts § 8A (1965). Comment (b) to that section explains that “[i]f the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.” Id. § 8A cmt b.
[¶ 36.] Other jurisdictions have likewise endorsed the use of the substantial certainty standard as a lesser burden than actual or virtual certainty. In Turner v. PCR, Inc., 754 So.2d 683, 687, n4 (Fla 2000), superseded by statute, for example, the court stated: “We recognize that some courts have elevated the standard ... 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.... ” Id. at n4 (citations omitted). See Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 830 A.2d 372, 378 (2003) (specifically rejecting the virtual certainty standard in Fryer). See also Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 790 A.2d 884, 898 (N.J.2002); Fyffe v. Jenos, Inc., 59 Ohio St.3d 115, 570 N.E.2d 1108, 1111-12 (1991) superseded by statute; Bazley v. Tortorich, 397 So.2d 475, 482 (La.1981); Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 246 S.E.2d 907, 914-15 (W.Va. 1978), superseded by statute; Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172, 175 (W.Va.1996).
[¶ 37.] To the extent that they use the virtual certainty test, it is time to discard Ham and Fryer and return to the correct standard for assessing intentional conduct in worker’s compensation cases.