dissenting.
Contrary to the impression conveyed by the majority opinion, the facts of this case do not reveal a malicious attempt by Johnson to come as close to Pleasant as possible without actually striking him. This was playful, although admittedly dangerous, horseplay — an attempt to scare Pleasant by driving close to him and scaring him by blowing the horn. These were good friends, no malice was intended and certainly no injury. The following are excerpts from the testimony of defendant Johnson:
Mr. Johnson, you were operating the van at the time Mr. Pleasants [sic] was struck, were you not?
Yes, sir.
At the time of that occurrence, were you trying to see how close you could operate the vehicle to Mr. Pleasant without actually striking him?
No, sir.
* * *
*719It is true though, is it not Mr. Johnson, that at the time the van struck Mr. Pleasants [sic] you were trying to put a fright or a scare into him by operating the van close to him?
Yes, sir.
* * *
And when Mr. Woods came and asked you about what happened, you told him that you had been horseplaying with the van, or messing around with it, did you not?
Yes, sir.
* * *
You could have operated your vehicle in such a manner that it would not have even come close to Mr. Pleasants [sic]?
Yes, sir.
Did you just misjudge your ability to come close to him?
I won’t trying to hit him.
I understand. You didn’t mean to hit him, but I am saying did you misjudge your ability to drive the vehicle close to him and actually hit him?
No, sir.
You did hit him?
Yes, sir.
* * *
You meant to come close, but you missed?
Yes, sir.
* # *
Now, Mr. Johnson, did you honk the horn, toot the horn?
Yes, sir.
Is it correct you were about 20 to 30 feet from those folks when you honked the horn?
Yes, sir.
*720COURT: How far?
About 20 feet.
* * *
When I tooted the horn and Jessie moved and Bill didn’t, I put on the brakes and cut the wheels the opposite way and then that is when I struck Bill.
* * *
And Billy didn’t move?
Yes, sir.
Then you slammed on the brakes?
Yes.
And turned the van to the left as shown in that picture? * # *
Why did you turn the van to the left after you honked the horn?
I seen I was fixing to hit him, so I tried to avoid it.
All right, did you then get out of the van?
Yes, sir.
And did you go over to Billy?
Yes, sir.
What if anything did you tell him?
Told him I was sorry, didn’t mean to do it, I said — joking or horseplaying, I reckon.
Joking?
Yes, sir.
Did you intend to hit him?
No, sir.
Was in fact your intent to scare him with the toot of the horn?
*721Yes, sir.
What if anything did he say to you at that time when you got out of the van?
Told me not to worry about it.
Did he say anything else?
Not at that time until we got to the building.
What did he say up at the building?
Told me not to worry about it again, he would tell the people that he fell off the ladder.
Were you and Billy at that time friends?
Yes, sir.
Injuries incurred in the employer’s parking lot while arriving at or departing from work have frequently been held to arise out of and in the course of employment because the risk of injury in such lots is different in kind and greater in degree than that experienced by the general public. See, e.g., Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E. 2d 570 (1962); Harless v. Flynn, 1 N.C. App. 448, 162 S.E. 2d 47 (1968). As this plaintiff neither initiated nor participated in the horseplay resulting in his injury his claim is covered by our Act. The only question before this Court is whether the individual defendant co-employee is subject to this civil action for damages. The majority has found that the co-employee is subject to suit.
Believing that the majority has, contrary to the established law of this State, contrary to weight of judicial authority in other jurisdictions and, in fact, without precedent in this nation, expanded the exclusion from coverage under our Workers’ Compensation Act, I respectfully dissent. It appears that this is the first case in the nation to extend the exclusion from the exclusivity of the Workers’ Compensation Act to negligent acts of co-employees. I believe this broad extension is unwise and will result in a proliferation of suits by employees against fellow employees anytime there is insurance coverage available or the negligent employee can satisfy a judgment and there is the slightest possibility that a jury might find that acts of horseplay were willfully or recklessly committed. Because of the limited benefits available to the work*722er under the Act, employees will find themselves subject to suit and personal liability for money judgments the responsibility for which ought rightfully to be absorbed by industry and not by the worker.
Our Workers’ Compensation Act was a statutory compromise. The benefits to employers are not pertinent here. The employee is assured that if he sustains injury arising out of and in the course of his employment he will be compensated without having to prove negligence on the part of the employer. Also, as a part of the trade-off for the employer’s loss of common law defenses, the employee gave up his right to bring common law suits and to recover judgments against the employer and his fellow employees. See 2 A. Larson, The Law of Workmen’s Compensation § 72.20 (1983) (hereafter cited as Larson); Smith v. Liberty Mut. Ins. Co., 409 F. Supp. 1211 (M.D.N.C. 1976). The employee’s loss of his right to common law suits against the employer is expressed in the exclusivity section of the Act, which states in pertinent part:
If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee . . . shall exclude all other rights and remedies of the employee ... as against the employer at common law otherwise on account of such injury or death.
N.C.G.S. § 97-10.1. This Court has recognized and enforced this exclusivity. Wesley v. Lea, 252 N.C. 540, 114 S.E. 2d 350 (1960); Lovette v. Lloyd, 236 N.C. 663, 73 S.E. 2d 886 (1953). N.C.G.S. § 97-9 provides in pertinent part:
Every employer subject to the compensation provisions of this Article shall secure the payment of compensation to his employees . . . and while such security remains in force, he or those conducting his business shall only be liable to any employee for personal injury or death ... in the manner herein specified. (Emphasis added.)
In Altman v. Sanders, 267 N.C. 158, 148 S.E. 2d 21 (1966) we interpreted the phrase “those conducting his business” to include fellow employees. The courts of North Carolina have interpreted N.C.G.S. § 97-10.1, together with N.C.G.S. § 97-9, to be a *723statutory abrogation of the employee’s right to sue his fellow employee. Fellow employees are excluded from common law negligence liability. Wesley v. Lea, 252 N.C. 540, 114 S.E. 2d 350. See also Smith v. Liberty Mut. Ins. Co., 409 F. Supp. 1211. N.C.G.S. § 97-10.2, relating to actions against third parties, has been held inapplicable to the negligent co-employee. Warner v. Leder, 234 N.C. 727, 69 S.E. 2d 6 (1951).
This Court has recognized that an intentional assault by an employer removes the employer from his common law immunity to common law suits.
“Where the employer is guilty of felonious or willful assault on an employee he cannot relegate him to the compensation act for recovery. It would be against sound reason to allow the employer deliberately to batter his helper, and then compel the worker to accept moderate workmen’s compensation benefits, either from his insurance carrier or from himself as self-insurer. The weight of authority gives the employee the choice of suing the employer at common law or accepting compensation.”
Warner v. Leder, 234 N.C. at 733-34, 69 S.E. 2d at 10, quoting Horovitz, “Injury and Death Under Workmen’s Compensation Laws,” page 336; Essick v. Lexington, 232 N.C. 200, 60 S.E. 2d 106 (1950).
This Court has never held that even an intentional tort by a co-employee removes the co-employee from his immunity to common law actions, although it has intimated that it might so hold. Wesley v. Lea, 252 N.C. 540, 114 S.E. 2d 350; Warner v. Leder, 234 N.C. 727, 69 S.E. 2d 6. The Court of Appeals case of Andrews v. Peters, 55 N.C. App. 124, 284 S.E. 2d 748 (1981), disc. rev. denied, 305 N.C. 395, 290 S.E. 2d 364 (1982) is the only case in this State that has held that an intentional tort amounting to assaultive misconduct by a co-employee removes his immunity.
I would have no difficulty if we were merely extending the exclusion from the exclusivity of the Act to co-employees who engage in intentional, willful assaults where injury is intended to a fellow employee. I would, however, adhere to the prior rulings of this Court that the Act is the exclusive remedy for negligently caused injuries. I will not vote to extend the exclusion to sitúa*724tions where the co-employee is merely negligent. Where the employee, as here, intends only to do the act and clearly does not intend to do the injury, negligence is not eliminated. “[T]he idea of negligence is eliminated only when the injury or damage is intentional.” Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 38 (1929); Ballew v. R.R., 186 N.C. 704, 120 S.E. 334 (1923).
The statement that “We also have said that an injured worker may maintain a tort against a co-employee for intentional injury” for which the majority cites Wesley v. Lea, 252 N.C. 540, 114 S.E. 2d 350 is completely misleading. That case did not involve an intentional tort but involved a one car upset resulting from the ordinary negligence of the employee-driver which injured the co-employee-passenger. The paragraph of the Wesley opinion from which the majority takes its statement is as follows:
Plaintiff contends that the conduct of defendant in the operation of the car was not merely negligent, but was reckless and wanton. But to take the case out of the Workmen’s Compensation Act the injury to an employee by a co-employee must be intentional. Warren v. Leder, supra, at page 733. There is no evidence of any intention on the part of defendant to injure plaintiff.
252 N.C. at 545, 114 S.E. 2d at 354. The emphasis points out the distinction I have alluded to in the difference between the intent to do the act as opposed to the intent to actually injure.
The majority opinion will not hurt the employer — he can only gain by recovery of amounts already paid out in benefits. It will harm the employee by subjecting him to civil actions to which he is not now exposed.
Besides overruling established precedent to the contrary without reasons satisfactory to me, the ruling emasculates the exclusivity provision of our Workers’ Compensation Act as to co-employees. If such is required by sound public policy that is for the legislature and not for this Court.