dissenting.
The majority correctly identifies the question for our determination as “whether the forecast of evidence is sufficient to show that Prestress intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death.” The majority also correctly states our standard of review, that summary judgment should be reversed “[i]f plaintiff’s forecast of the evidence is sufficient to show that there is a genuine issue of material fact as to whether Prestress’ conduct meets the substantial certainty standard.” However, I reach a different result than the majority.
This case presents an opportunity to revisit the standard of employer culpability set forth in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). Prior to Woodson, an employee sustaining a workplace injury could not recover against the employer outside the Workers’ Compensation Act unless the injury was the result of an intentional tort committed by the employer. Barrino v. Radiator Specialty Co., 315 N.C. 500, 340 S.E.2d 295 (1986), overruled, Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). This was a very difficult standard to meet, as a plaintiff would have to show that the employer intended its acts to result in actual injury or death to the employee. Id. at 507-8, 340 S.E.2d at 300. The Barrino majority quoted with approval the leading workers’ compensation treatise:
[T]he common-law liability of the employer cannot, under the almost unanimous rule, be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.
Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.
*328Id., quoting 2A Larson, The Law of Workmen’s Compensation § 68.13 (1984) (omission in original).
The Woodson Court recognized that there could be situations in which, although the employer did not actually intend to injure an employee, the employer’s conduct was so egregious that it was “tantamount to an intentional tort.” Woodson, 329 N.C. 341, 407 S.E.2d at 228. In trying to find a standard that would address such situations, the Court considered the “willful and wanton” standard, under which an employee may hold a co-employee civilly liable for injuries. Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985). The Court declined to apply the willful and wanton standard to employers’ conduct because of the countervailing policies of the workers’ compensation scheme. The Court reasoned, “[I]t is also in keeping with the statutory workers’ compensation trade-offs to require that civil actions against employers be grounded on more aggravated conduct than actions against co-employees. Co-employees do not finance or otherwise directly participate in workers’ compensation programs; employers, on the other hand, do.” Woodson, 329 N.C. at 342, 407 S.E.2d at 229.
Instead, the Court established a standard in between the intentional tort and willful and wanton standards, known as the “substantial certainty” standard. The Court held that a civil action may be pursued against an employer when “an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct.” Id. at 340-41, 407 S.E.2d at 228.
After establishing the “substantial certainty” standard, the Woodson Court did not further define it, except as it found the Woodson facts met it. The majority’s bomb-throwing example, taken from the Restatement of Torts, sets a higher standard than that actually applied by the Court in Woodson. Although Woodson cited the Restatement, it did not expressly adopt it. Thus, the Woodson facts provide the authoritative understanding of “substantial certainty” as intended by our Supreme Court.
In Woodson, the Court found that reasonable jurors could conclude that defendant knew of the substantial certainty that the conditions would cause serious injury or death where: defendant was experienced; he had been cited for safety violations similar to the one causing the death; he was aware of safety regulations *329designed for such conditions; and an experienced foreman testified that the conditions were unsafe.
With this standard in mind, I evaluate plaintiff’s forecast of evidence as follows. “[I]n a summary judgment proceeding, the forecast of evidence and all reasonable inferences must be taken in the light most favorable to the non-moving party.” Id. at 344, 407 S.E.2d at 231. Taken in the light most favorable to plaintiff, the evidence tends to show the following: Decedent was a temporary worker, on his second day on the job, who had received no safety training. He was placed in a workspace in which a crane lacking tire guards regularly passed within as little as 36 inches of him, often behind his back. The crane had an inadequate alarm and the policy requiring a signal man may not have been followed. After the incident, the worksite was cited by the North Carolina Department of Labor pursuant to N.C. Gen. Stat. § 95-129(1) for failing to protect employees working in close proximity to straddle cranes and for permitting crane operators to work without meeting minimum physical requirements. There was additional evidence that the site violated industry standards by allowing new and inexperienced workers to be placed into an unsafe work environment; by failing to maintain clear passage and aisle ways; and by failing to maintain barriers between the workers and the dangerous cranes. I conclude that a reasonable juror could determine from this evidence that serious injury or death was a “substantial certainty rather than an unforeseeable event, mere possibility, or even substantial probability.” Id. at 345, 407 S.E.2d at 231.
Again, in the light most favorable to the plaintiff, there is evidence that defendant Prestress knew of this substantial certainty. Prestress regularly employed temporary workers such as decedent. Prestress did not provide these workers with any safety training nor with a copy of its safety manual. The company knew that crews frequently worked in close proximity to the moving crane. Instead of instructing workers to move away from the crane when it moved past them, Prestress expected workers to remain working between the wheels and the forming beds as the crane moved behind their backs. Prestress knew that, although it had a policy requiring a signal man to direct the crane, it did not train any of its employees in signaling, there were no uniform signals, and none of the employees was designated as a signal man.
*330As in Woodson, the plaintiff here has forecast evidence that Prestress had a practice of hiring untrained workers; it had twice been cited for safety violations in its crane operations; there were safety violations at the time of the incident; and, according to expert testimony, under the conditions existing at the time, it was substantially certain that the crane would come into contact with the workers. I would hold that plaintiff has presented a genuine issue of material fact as to whether defendants engaged in intentional conduct which they knew was substantially certain to result in serious injury or death.
I reject the majority’s suggestion that the existence of a safety policy is enough to relieve an employer of knowledge, where there is evidence that the policy was not effective. Employers should not be able to use policies and regulations which they do not effectively enforce on the worksite as a paper shield from liability. I further reject the implication that a worksite must have had a previous fatality or “near miss” before its supervisors can be held to know of the likelihood of serious injury or death. Employees should not have to lose a co-worker before their own safety can be ensured.
For the foregoing reasons, I respectfully dissent.