specially concurring.
Although the majority reaches the correct result, it does so in a disingenuous manner that is contrary to sound public policy and is not required by precedent.
The majority attempts to draw a distinction between “intent” and “deliberate intent,” but can do no better than to require “that the injury be ‘deliberate,’ in the sense that the employer has had an opportunity to weigh the consequences and to make a conscious choice among possible courses of action * * 97 Or App at 188. That analysis adds nothing to the meaning of “intent;” moreover, the majority’s test is satisfied in this case. Plaintiff alleges that defendant was aware of the consequences of its actions, was aware of the existence of alternative courses of action and deliberately chose to inflict injury on plaintiff rather than adopt a different course. Neither statute nor policy requires that an employer be provided with an exemption from tort liability for having made such a choice. ORS 656.156(2); 2A Larson, Workmen’s Compensation Law, 13-60 to 13-68, § 68.15 (1988).
This is not a case in which the pleadings allege a deliberate intent by the employer to subject the plaintiff to a risk of injury, but rather it is one in which the employer is alleged to have deliberately injured plaintiff through its actions in refusing to supply him with proper safety equipment. All, save one, of the Supreme Court’s cases dealing with the exclusivity provision of the Worker’s Compensation Law are of the first type and hold that a deliberate intent to subject a worker to a risk of injury is insufficient to establish tort liability. See Duk Hwan Chung v. Fred Meyer, Inc., 276 Or 809, 556 P2d 683 (1976); Caline v. Meade, 239 Or 239, 396 P2d 694 (1964); Heikkila v. Ewen Transfer Co., 135 Or 631, 297 P 373 (1931); Jenkins v. Carman Mfg. Co., 79 Or 448, 155 P 703 (1916). This case is different. A jury could find that defendant deliberately compelled plaintiff to work in an environment certain to cause him injury, intending to cause that injury rather than modify the work environment. In that sense, the case is more like Weis v. Allen, 147 Or 670, 35 P2d 478 (1934), than it is like the other cited cases, even though the defendant in Weis was not shown to have intended to injure the plaintiff in particular. As in Weis, plaintiff alleges that defendant has *191engaged in a course of conduct to which the Worker’s Compensation Law does not lend its protection from tort liability. The trial court erred in ruling on a summary judgment motion that plaintiffs allegations failed to state the statutory requirement of intent.