dissenting.
I respectfully dissent from the majority opinion that affirms the trial court’s grant of the judgment notwithstanding the verdict (“JNOV”) in favor of Appellee, Environmental Construction Corporation. The trial court overturned the jury award of damages in favor of Appellants, Sharon and John Moore, Sr., for the wrongful death of their son, John Moore, Jr. The majority held that “the trial court’s grant of JNOV was appropriate, as ‘it is the duty of the court to set aside a jury verdict which imposes liability upon sympathetic considerations, where fault is not shown.’ ”1 I believe that Appellants presented more than sympathy; that their evidence was sufficient for the jury to reasonably find that Appellee acted with deliberate intent to bring about the death of the decedent.
The evidence presented at trial revealed deliberate actions on the part of Appellee in forcing its employees, including the deceased Mr. Moore, to work in a manifestly unsafe environment. Appellee purposefully did not provide safe working conditions for the digging of the trench. It refused to install a trench box or adequately slope the sides of the trench. Kentucky OSHA standards require safety precautions when trenches are over five feet deep, and the trench in question was at least seven feet deep. These actions by Appellee were intentional and fully supported the jury finding of liability against Environmental.
At trial, management personnel of Environmental admitted that Appellee knew of the dangers, hazardous conditions, and potential consequences associated with placing Mr. Moore in an unsafe trench. The testimony also revealed that Appellee knew that cave-in of the trench was likely and that anyone in the trench at the time of the cave-in would be seriously injured or even killed as a result. Furthermore, testimony disclosed that Appellee had knowl*21edge of specific risk factors that greatly increased the likelihood of a cave-in: 1) an exposed gas line, 2) vibrations from an adjacent highway, and 3) unstable soil. Even with all of these known risks and probabilities of death or serious injury, Appellee ordered the decedent to work in the trench. The evidence also showed that Appellee failed to report the decedent’s death in a timely manner, even though it knew that the death was the result of its actions.
Upon review of a JNOV motion, the court must “consider the evidence in a light most favorable to the party opposing the motion and to give that party every reasonable inference that can be drawn from the record.”2 Additionally, the motion should not be granted “unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable [persons] could differ.”3 It is erroneous to declare that the death of Mr. Moore was caused by Appellee’s omissions, because the decedent’s death was the direct result of Appellee’s deliberate and intentional act of ordering him to work in death-probable conditions. Moreover, the jury was entitled to infer intent based upon Appellee’s actions following the incident. Its failure to report the decedent’s death and filling the trench subsequent to the removal of the body, Appellee impeded or prevented inspectors from fully investigating the incident. The evidence and allowable inferences were sufficient to create a material issue of fact as to whether Appellants met their burden of proving deliberate intent to cause death.
Kentucky is not alone in having an exception to the exclusive remedy provision of the Workers’ Compensation Act and allowing recovery for injuries as a result of intentional or deliberate actions by the employer. Some other jurisdictions use a substantial certainty test. The majority opinion relies on Dunleavy v. Yates Constr. Co.4 for the proposition that Environmental’s actions did not meet the substantial certainty test.
In Dunleavy, the North Carolina Court of Appeals held that summary judgment granted by the trial court to the defendants was proper, because the plaintiff had failed to produce sufficient evidence to support a finding under the exception in Woodson v. Rowland,5 In Dunleavy, the trench did not exceed five feet deep in all areas of the trench. For this reason, the company did not supply a trench box. In spite of what appeared to be stable soil, there was a partial cave-in and an employee was killed. The court distinguished these facts from the situation in Woodson where the high court of North Carolina recognized a narrow exception based on egregious facts. The facts included several safety citations, showed required work in a fourteen-foot deep trench, and showed the failure to provide any safety precautions. The Supreme Court of North Carolina recently described the Woodson exception as one that “applies only in the most egregious cases of employer misconduct” and where “there is uncontroverted evidence of the employer’s intentional misconduct and where such misconduct is substantially certain to lead to the employee’s serious injury or death.”6
*22We hold that when an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury of death to employees and an employee is injured or killed by that misconduct, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer. Such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the Act.
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This discussion in Pleasant [v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985)] makes clear that an actual intent to cause injury is not a necessary element of an intentional tort generally, nor is it required for intentional tort claims based on work-related injuries.7
The facts of the present case are disturbingly similar to those in Woodson v. Rowland,8 Here the employer knew that the trench depth required safety precautions due to the likelihood of cave-in, but the employer deliberately did not make available or use a trench box. Rather the employer left all safety equipment behind instead of taking it to the work site. As in the Woodson case, the deceased employee was forced to work under manifestly unsafe conditions. Further, it appears from the testimony and other evidence that it was substantially certain that a serious injury or death would occur as a result of the actions by Environmental.
KRS 342.610(4) allows recovery outside of the exclusive remedy provision of the Workers’ Compensation Act upon a showing of intent. The legislature has not eliminated liability when employers act egregiously and cause the death or serious injury of employees. But, this Court has effectively immunized employers from payment of damages despite egregious behavior by a draconian construction of the statute. Instead of analyzing this case as a civil action for damages and allowing the jury to draw proper inferences, the majority has held Appellants to a standard that would be appropriate for a homicide prosecution.
For the reasons stated herein, I would reverse the trial court’s grant of JNOV and reinstate the jury verdict.
GRAVES and STUMBO, JJ., join this dissenting opinion.
. Moore v. Environmental Construction Corp., Ky., 147 S.W.3d 13, 17-18, 2004 WL 1906172, *3, *5 (2004) (majority opinion), quoting Boyer v. Louisville Ladder Co., 157 Mich.App. 716, 403 N.W.2d 210 (1987).
. Brewer v. Hillard, Ky.App., 15 S.W.3d 1, 9 (1999).
. Taylor v. Kennedy, Ky.App., 700 S.W.2d 415, 416 (1985).
. 114 N.C.App. 196, 442 S.E.2d 53 (1994).
. 329 N.C. 330, 407 S.E.2d 222 (1991).
. Whitaker v. Town of Scotland Neck, 597 S.E.2d 665, 668, 357 N.C. 552 (2003).
. Woodson, at 340-42, 407 S.E.2d 222.
. Supra.