dissenting.
The majority correctly recognizes that this case is before this Court following a grant of summary judgment in favor of defendant, and thus all inferences of fact must be drawn against the movant, and in favor of the nonmovant. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992). The majority also correctly states that our Supreme Court in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991) held that a plaintiff may maintain a civil action in addition to a Worker’s Compensation claim when an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees, and an employee is in fact injured or killed. Id.
As in Woodson, the question before this Court is: whether the forecast of evidence is sufficient to show that defendant intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death. Woodson, 329 N.C. at 340, 407 S.E.2d 222, 228 (1991). With the above in mind, I turn to the facts of the case sub judice.
On 22 March 1990, Virgil Lee Rose, an employee of defendant, was killed when his head and shoulders were caught between the carriage head of the brick setting machine he was operating, and the spreader table. The machine crushed his head.
The brick setting machine has automatic and manual operation modes. The automatic mode is designed for use when the machine is being used without any employees in the operational area. The manual mode was designed to be used when it is necessary to stop part of *242the machine from operating, such as when an employee needs to remove excess clay from the spreader. The decedent was attempting to remove excess clay out of the spreader table when he was killed.
Instead of allowing employees to set the machine in manual mode while an employee cleans the table, as contemplated by the manufacturer, defendant taught its employees to leave the machine in automatic mode, and thus continuously running. Weights and wires were used to hold down the spring loaded switches to keep the machine running. These weights and wires had fallen off of the switches on prior occasions, and the defendant used duct tape in an attempt to prevent the wires and weights from slipping. There is a dispute in the record as to whether there was a weighted wire on the switch which controlled the head of the machine at the time of the accident, and if there was a weight on the switch, whether it fell off and caused the head of the machine to descend on the spreader table.
The North Carolina Department of Labor, Division of Occupational Safety and Health (OSHA) investigated the 22 March 1990 death of Virgil Lee Rose. The investigator’s report stated that the machine was in automatic mode at the time of the accident, contrary to the manufacturer’s instructions on how to use the machine, but consistent with the defendant’s instructions. The investigator cited a failure to operate the machine according to the manufacturer’s design as a causal factor leading to the decedent’s death.
In addition, plaintiff’s expert, Dr. George W. Pearsall, stated in his deposition that given the manner in which the machine was being operated, the number of times that the employees were exposed to the hazards per day, and the time that the defendant had operated the machine under the conditions present, the probability of death or serious injury was between 77.3 and 93.1 percent.
Reviewing the above facts in the light most favorable to the plaintiff, I conclude that the plaintiff’s forecast of the evidence sufficiently raises an issue of fact as to whether the defendant knew that it was substantially certain that death or serious injury would result from the manner in which the defendant ordered the machine to be operated.
For the foregoing reasons, I respectfully dissent. See also, Powell v. S & G Prestress Co., 114 N.C. App. 319, 442 S.E.2d 143 (1994) (Wynn, J., dissenting).