dissenting.
I respectfully dissent. The primary issue before this Court is not, as the majority contends, whether the North Carolina Workers’ Compensation Act provides the exclusive remedy for an employee injured by the willful, wanton, and reckless negligence of his employer. The question we must decide is whether the trial court erred in granting summary judgment for the defendant-employer in view of evidence put forth by the plaintiff which creates a genuine issue of material fact concerning defendant’s subjective intent.
Summary judgment is properly granted when the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact. Johnson v. Insurance Co., 300 N.C. 247, 266 S.E. 2d 610 (1980). In the present case the trial court found defendant’s defense based on the exclusivity provision of the Workers’ Compensation Act, N.C.G.S. 97-10.1, adequate to sustain its motion for summary judgment. However, as the majority recognizes, the exclusivity provision is not absolute. An employee is not barred from bringing a civil suit against his employer when the injuries complained of are a result of the intentional actions of the employer. Warner v. Leder, 234 N.C. 727, 69 S.E. 2d 6 (1952); Essick v. Lexington, 232 N.C. 200, 60 S.E. 2d 106 (1950).
Because the issue of the intentional nature of defendant-employer’s misconduct is determinative of plaintiffs right to maintain the present action, it clearly constitutes a material fact under Rule 56 of the North Carolina Rules of Civil Procedure. As such, summary judgment is proper only if the issue is not in controversy. Rule 56 does not authorize the court to decide a disputed issue of fact. Caldwell v. Deese, 288 N.C. 375, 218 S.E. 2d 379 (1975).
Whether Lora Ann Barrino was killed as the result of intentional actions on the part of the defendant is a disputed issue of fact. Plaintiff sets forth numerous specific and illegal actions of the defendant. These include the covering of meters designed to warn of explosive gas and vapor levels and the turning off of alarms which would have sounded to warn of dangerous gas *518levels. The only reasonable explanation for the corporation’s actions in concealing and dismantling the warning devices is that it intended for its employees to be subjected to extremely hazardous working conditions and to the probable consequences of working in such conditions, including serious injury or death. As Prosser states: “Intent is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does.” W. Prosser, Handbook of the Law of Torts § 8 (4th ed. 1971). Accord Restatement (Second) of Torts § 8A and comment b (1965). The death of Lora Ann Barrino or one of her co-workers was, at the very least, “substantially certain” to occur given defendant’s deliberate failure to observe even basic safety laws.
For plaintiff to prove that defendant’s conduct was intentionally tortious does not require a showing that the defendant corporation intended that plaintiffs daughter would be the particular victim or that death, as opposed to some lesser harm, would be the result. Fallins v. Insurance Co., 247 N.C. 72, 100 S.E. 2d 214 (1957).
The above analysis of N.C.R. Civ. P. 56 and relevant case law thus indicates that plaintiff has in fact shown the question of defendant-employer’s intent constitutes a genuine issue of material fact. Therefore, summary judgment was improper. It was especially inappropriate given that the case involves the defendant’s subjective intent and issues of intent should usually be determined on the basis of circumstantial evidence and only rarely by summary judgment. Girard Trust Bank v. Belk, 41 N.C. App. 328, 255 S.E. 2d 430, cert. denied, 298 N.C. 293 (1979).
Finally, summary judgment is a drastic remedy and must be approached with caution so that no party is deprived of trial on a genuinely disputed factual issue. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971). Summary judgment in the present case fails to serve its purpose in eliminating unnecessary trials, rather it serves to deprive the plaintiff of trial on a genuinely disputed issue.
In Pleasant v. Johnson, 312 N.C. 710, 325 S.E. 2d 244 (1985), we held that the North Carolina Workers’ Compensation Act does not insulate a co-employee from the effects of his negligence. We *519stated our belief that such a result would “help to deter such conduct in the future. It would be a travesty of justice and logic to permit a worker to injure a co-employee through such conduct, and then compel the injured co-employee to accept moderate benefits under the Act.” Id. at 718, 325 S.E. 2d at 250 (citing S. Horowitz, Injury and Death Under Workmen’s Compensation Laws 336 (1944)).
While this Court should be concerned with deterring negligent and injurious horseplay on the part of a co-employee, we should be more concerned with deterring intentional employer conduct which is likely to endanger the lives and safety of thousands of workers. Therefore, when an employee injured or killed on the job sets forth in his complaint circumstances which raise disputed questions of fact as to intentional employer mise on-duct, summary judgment should be denied.
We should not permit an employer to assume that no marter how egregious and deliberate his misconduct, the Workers’ Compensation Act will allow him statutory immunity. To do so would contravene the legislative goal of promoting workplace safety. N.C. Gen. Stat. § 95-126(b)(2) (1981). In addition, it is a basic proposition of public policy that an insured is not allowed to protect himself by insurance from the consequences of his intentional or criminal wrongs. Blackwell v. Insurance Co., 234 N.C. 559, 67 S.E. 2d 750 (1951). If we were to permit an employer to insure himself against liability for the consequences of his intentional acts, we would encourage the employer to weigh the economic costs of compliance with safety regulations against the costs of workers’ compensation and to choose the most cost-effective course of conduct. If the possibility of a common law tort suit is to have any significant effect in deterring intentional employer misconduct at the workplace, the courts must be extremely cautious in using summary judgment to dismiss an employee’s action.
In order to justify its holding that the Workers’ Compensation Act is plaintiff’s exclusive remedy, the majority relies primarily on two recent decisions of this Court: Pleasant v. Johnson, 312 N.C. 710, 325 S.E. 2d 244, and Freeman v. SCM Corp., 311 N.C. 294, 316 S.E. 2d 81 (1984). However, both cases deal solely with negligent misconduct on the part of an employer or co-employee. It is patently misleading to attempt an analysis of *520the present case, which deals with intentional employer misconduct, on the basis of our holdings in Pleasant and Freeman.
In Freeman we found that the Workers’ Compensation Act provided the sole remedy for the plaintiff injured as a result of negligent conduct on the part of her employer. As the majority notes, we specifically stated: “We wish to make it abundantly clear that in fact plaintiff had no ‘selection’ as to the appropriate avenue of recovery for her injuries.” 311 N.C. at 296, 316 S.E. 2d at 82. Freeman provides a clear statement of the law in North Carolina concerning suits by an employee which demonstrate negligent employer conduct. However, we need not, as the majority contends we must, overrule Freeman in order to find that the plaintiff in the instant case has a valid cause of action. In Freeman a single supervisory employee of the defendant corporation negligently permitted the plaintiff to continue working at a machine which the employee had reported as malfunctioning. In the present case the actions of the defendant-employer present a pattern of intentional and criminal1 misconduct which endangered the lives of every person employed at defendant’s plant. In contrast to Freeman, such actions are not likely to be attributable to a single employee but, instead, indicate a deliberate disregard of basic safety regulations on the part of the corporation as a whole. Widespread, deliberate, and criminal misconduct which is likely to result in the death of one or more persons is not properly deemed “negligent.”
In Pleasant we concluded that the “Workers’ Compensation Act does not shield a co-employee from common law liability for willful and reckless negligence.” 312 N.C. at 716, 325 S.E. 2d at 249. As the majority notes, the plaintiff in Pleasant was injured as a result of a “prank.” One afternoon after lunch the defendant co-employee attempted to see how close he could operate a truck *521to the plaintiff without actually hitting him. The defendant, however, misjudging his ability, struck the plaintiff. We characterized the defendant’s conduct as willful, wanton, and reckless negligence and allowed the plaintiff to maintain a common law tort action against the co-employee.
In the present case, company officials systematically flaunted basic safety regulations and knowingly subjected every employee at the Indian Trail plant to death or serious injury. In Pleasant the defendant co-employee injured the plaintiff while engaged in horseplay. If the defendant’s conduct in Pleasant constitutes willful, wanton, and reckless negligence, then clearly the conduct of the defendant-employer in this case embodies a degree of culpability beyond negligence and as such the exclusivity provision of the Workers’ Compensation Act should not serve to shield the employer from liability for his tortious conduct.
In Pleasant we specifically did not decide the question of whether an employer may be sued in a civil action for his willful, wanton, and reckless negligence. It is a question we should still decline to decide as it is not determinative of the case at bar.
The majority cites Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir. 1974), as authority for its holding that plaintiff has made a binding election to recover under the Workers’ Compensation Act and is thereby precluded from pursuing a civil action. However, Byrd involved an employee killed as a result of negligent conduct on the part of the employer. This Court has never held that an employee injured by the intentional conduct of his employer makes a binding election of remedies by his acceptance of workers’ compensation benefits. As the Court concluded in Warner v. Leder, 234 N.C. 727, 69 S.E. 2d 6, the acceptance of benefits under the Act forecloses the right of the employee to maintain a common law negligence action against his employer.
The law in general disfavors the defense of election of remedies and it is to be narrowly applied. Friederichsen v. Renard, 247 U.S. 207, 62 L.Ed. 1075 (1918). As Larson states, “The least the courts can do is to insist upon a scrupulous respect for the requirements of a binding election.” 2A A. Larson, The Law of Workmen’s Compensation § 67.35 (1982).
One of the essential elements of an election of remedies defense, according to Larson, is that there must be an inherent *522contradiction between the position taken by the plaintiff in the workers’ compensation forum and the position he asserts in the common law action. Id. The term “accident” as used in the Workers’ Compensation Act has been defined by this Court as “an unlooked for and untoward event which is not expected or designed by the injured employee.” Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E. 2d 109 (1962). Therefore, it is not contradictory in North Carolina to assert that an act was at once an accident and an intentional tort. “An unexpected assault may be considered an accident despite its characterization as an intentional tort.” Daniels v. Swofford, 55 N.C. App. 555, 558, 286 S.E. 2d 582, 584 (1982). There is no inherent inconsistency in plaintiffs effort to recover for the intentional misconduct of the defendant. The laws of North Carolina have provided the plaintiff with both a statutory and a common law remedy and the doctrine of election of remedies does not function to require a choice between the two. A crucial element of the election of remedies defense, “inherent inconsistency,” is lacking and the defense must fail.
The purpose of the doctrine of election of remedies is to prevent double redress of a single wrong. Smith v. Oil Corp., 239 N.C. 360, 79 S.E. 2d 880 (1954). This can be achieved either by reducing plaintiff’s award in tort by the amount of benefits already received or by granting subrogation to the employer’s compensation insurance carrier. Cf. N.C. Gen. Stat. § 97-10.2 (1979 & Cum. Supp. 1983). The result thus obtained would be a more equitable one than forcing an employee who believes in good faith that he was injured by the intentional misconduct of his employer to forego his compensation claim in order to maintain his common law claim. An injured employee having financial difficulties would be likely to accept workers’ compensation benefits and forego a valid tort claim because he would have no real alternative. Such a policy would not serve to discourage intentional employer misconduct. Finally, the doctrine of election of remedies presupposes a “choice” between one or more inconsistent remedies. NASCAR, Inc. v. Midkiff 246 N.C. 409, 98 S.E. 2d 468 (1957). An employee in severe economic straits who makes a decision based solely on the exigencies of his immediate situation cannot be considered as having freely “chosen” one remedy over another.
*523In summary, because the instant case involves a genuine issue of material fact as to defendant’s intent, I find summary judgment to have been inappropriate.
Justices ExUM and Frye join in this dissenting opinion.. Willful violation of an Occupational Safety and Health Act rule constitutes a misdemeanor when said violation causes the death of an employee. N.C. Gen. Stat. § 95-139 (1981).
More enlightened jurisdictions have found somewhat harsher penalties appropriate. On 14 June 1985, in an Illinois case, three corporate officials were found guilty of murder in the death of an employee exposed to cyanide gas under totally unsafe working conditions. Subsequently, each of the three defendants was sentenced to twenty-five years in prison and fined $10,000. People v. Film Recovery Systems, The Raleigh News & Observer, July 2, 1985, at 4A, col. 4 (Ill. Cir. Ct., 4th Dist.).