dissenting.
In this case, as in Kilminster v. Day Management Corp., 323 Or 618, 919 P2d 474 (1996), the plaintiffs’ proffered allegations or evidence, if proven, would permit findings that the defendant employers created unduly dangerous work conditions or instrumentalities, failed to take available or required safety or curative measures, and compelled the injured employees and similarly situated persons to work under the conditions despite the employers’ knowledge that injury or death was certain to result.
The Supreme Court held in Kilminster that those asserted facts gave rise to a permissible inference that the employer acted with a deliberate intention to injure and, therefore, gave rise to an actionable tort claim under ORS 656.156(2). After an exhaustive analysis of its earlier decisions construing and applying that statute, the court stated:
“The meaning of the provision at issue in this case is clear from this court’s prior interpretations. In order for a worker to show that an injury that occurred during the course and scope of the worker’s employment ‘resulted] * * * from the deliberate intention of the employer * * * to produce’ that injury, the worker must show that the employer determined to injure an employee, that is, had a specific intent to injure an employee; that the employer *180acted on that intent; and that the worker was, in fact, injured as a result of the employer’s actions.” Id. at 631.
The court then proceeded to apply that legal standard to the plaintiffs allegations in Kilminster.
“In this case, plaintiff has alleged facts sufficient to meet the foregoing standard for deliberate intention to injure or kill. Plaintiff alleges that [the employer] DMC knew that decedent or someone who did the same work as decedent would be injured from a fall from the tower; that DMC decided to forego taking safety procedures, knowing that, by so doing, serious injury or death would result; and that DMC told decedent to climb the tower or lose his job.
‡ iji #
“Reading all the allegations together, in the light most favorable to plaintiff, a finder of fact reasonably could infer that DMC determined to injure an employee, that is, specifically intended ‘to produce [decedent’s] injury or death.’ The underlying facts pleaded by plaintiff do not describe when or how DMC determined to injure decedent. However, a specific intent to produce an injury may be inferred from the circumstances. * * * Plaintiff alleges that serious injury to or death of a worker was certain to occur, that DMC failed to take requisite safety precautions or buy requisite safety equipment, and that DMC instructed decedent to climb the tower while knowing that a worker who climbed the tower would fall and be hurt. A reasonable finder of fact could infer that DMC acted as it did because it wished to injure or kill decedent. A specific intent to injure or kill decedent certainly is not the only state of mind that could be inferred, but it is a permissible inference.” Id. at 632-33. (Emphasis in original; citation omitted.)
In my view, this case does not differ from Kilminster in any dispositionally significant way. The majority agrees “that this case and Kilminster * * * are legally indistinguishable,” but asserts that the cases are “factually distinguishable” because, in this case, “plaintiff Dias] stipulated that he cannot prove” that defendant acted as it did “because it wished to injure him.” 147 Or App at 177-78 (emphasis in original). The majority rejects plaintiff’s argument that that “stipulation” is not consequential because, plaintiff asserts, the test of liability under ORS 656.156(2) that Kilminster and *181earlier Supreme Court opinions establish is whether the employer “specifically intended” the employee’s injury or death, not whether it had the affirmative motive to produce injury that the majority understands the word “wished” to connote. I agree with plaintiffs argument, and I do not agree that the majority succeeds in drawing a tenable distinction between this case and Kilminster.
Contrary to its characterization, the majority’s distinction between the two cases is not a factual one but, rather, rests on its understanding that an employer’s “wish” to injure or kill is the “sina qua non” of the legal standard that Kilminster establishes or endorses as the test for liability under ORS 656.156(2). However, as shown by the passages that I have quoted from Kilminster, the word “wished” appears only once in the relevant portion of the Supreme Court’s opinion and appears there seemingly as a random word choice; by contrast, the phrase “specific intent,” along with the phrase “determined to injure” that the court expressly treated as synonymous with “specific intent,” appear repeatedly in Kilminster and are expressly identified by the court as defining the showing that a plaintiff must make to establish a deliberate intention to injure within the meaning of the statute. Similarly, phrases such as “specific intent” and “determined to injure” also appear repeatedly— and the word “wished” does not appear — in the Supreme Court’s earlier decisions construing the statute, which it discusses and quotes at length in Kilminster.
The words “wish” and “intend” have many possible meanings and, under some of the definitional variations, the two words are effectively synonymous. It is apparent that the majority does not read the words in that synonymous sense, or else it could not regard the absence of a potentially provable “wish” in this case and the potential presence of one in Kilminster to be the sole basis for opposite results in the two cases. It is equally apparent, however, that the court in Kilminster did use the two words synonymously. As noted, the court’s repeated references to “specific intent to injure” and its repeated quotations of the “specific intent” test from its earlier cases would, without more, make it highly improbable that the court’s single use of the word “wished” was meant to establish a different legal test. That conclusion is *182further supported by the fact that the quotations of the specific intent standard from the earlier cases are preceded in Kilminster by the court’s reiteration of the principle that a “prior interpretation of a statute by [the Supreme] [C]ourt becomes part of the statute itself.” Id. at 629. That is not a point that the court likely would have emphasized had its opinion been meant to change the basic test of actionability under ORS 656.156(2) that the earlier cases established.
The majority suggests in a different connection that this dissent “pummels a straw man.” I note parenthetically that it is not always easy to tell the difference between a straw man and a dead horse. At the expense of beating one or the other, however, I think that there is a problem with the majority’s analysis over and above the specifics of how it reads the language in Kilminster. The majority would ascribe a fundamental change in the law to the single appearance of a new word in a Supreme Court opinion that repeatedly reiterates the critical phrasing which was developed in the court’s earlier cases and with which the new word can be read completely synonymously. The law is simply not as ephemeral as the majority would have it be.
Although my principal disagreement with the majority concerns our different understandings of the test of liability in Kilminster, a number of premises that underlie the majority’s view require some discussion. First, the majority maintains that the requisite deliberate intention to injure cannot be present in situations where the employer’s actions will necessarily result in a worker’s injury, but where the employer acts “from a desire to save money and not from an affirmative desire to injure [the] plaintiff or his coworkers.” 147 Or App at 170. The majority relies for that proposition on our statement in Lusk v. Monaco Motor Homes, Inc., 97 Or App 182, 189, 775 P2d 891 (1989), that “[s]uch a reason, while perhaps not laudable, is not a specific intent to produce an injury.”1
*183If the majority correctly reads that statement in Lusk to mean that an employer’s conduct that is motivated by cost savings or other financial motives cannot also and simultaneously entail a specific intent to injure, then in my view, Lusk is wrong and is inconsistent with Kilminster. A specific intent to injure can be inferred, even where the employer has no “affirmative desire” to injure but is instead motivated by a desire to produce profits or to achieve some other objective, if an intervening injury is a certain byproduct of the other objective’s achievement. While I intend no analogy between the actors or the acts, I note that the majority’s proposition would make proof of intent difficult or impossible in cases of murder for hire. It is a truism that an actor can deliberately intend more than one consequence through a single course of conduct. To say that one result is the primary objective does not mean that the other is unintended, at least as a matter of law. The majority arrives at its contrary understanding by confusing motive and intent. However, there is no such confusion in ORS 656.156(2). Nothing in the statute supports the view that the existence or inferability of a deliberate intention to injure depends on the reasons — financial or other— why the intention was formed.
As I have indicated, the majority bases its thesis that injurious intent cannot be subsumed within economically-motivated conduct, at least in part, on the sentence it quotes from Lusk. However, that is far from the only inventive use that the majority makes of Lusk; indeed, the majority essentially treats our 1989 decision in that case, more than the Supreme Court’s 1996 Kilminster decision or any of its others, as the linchpin of ORS 656.156 jurisprudence. The uses that the majority makes of Lusk are of two kinds: first, it says that Lusk is controlling on us in itself unless it has been “repudiate [d] or substantially call[ed] into question” by Kilminster or other “intervening changes in the law,” 147 Or App at 174. Second, the majority appears to regard Kilminster as little more than a clone oí Lusk, because of general similarities in their facts and specific similarities in their language which, according to the majority, “can only be regarded as deliberate.” 147 Or App at 176.
If Lusk says what the majority understands it to say, I do not agree that it remains controlling after Kilminster. *184The central premise of the majority’s reasoning and its holding is that Lusk and, in turn, Kilminster adopted an “affirmative wish” standard of liability under ORS 656.156(2). As I have discussed, Kilminster does no such thing but, rather, reiterates and adheres to the specific intent standard established in the Supreme Court’s earlier cases. If the majority is right in regarding Lusk as holding otherwise, then, without more, Kilminster and Lusk are not consistent.
The same example also illustrates why the majority’s reliance on certain common language and usages in the two opinions does not succeed. The fact that the word “wished” can be found in both opinions adds nothing to its clear lack of substantive weight in Kilminster — whatever importance we might or might not have attributed to it in Lusk. More generally, the majority’s focus on language here is not an effective analytical tool, because isolated and random words are an empty vessel when they are emphasized at the expense of context and substance. Most of the linguistic usages or similarities that the majority finds in the two cases are anecdotal: It is by no means surprising that two opinions, which interpret the same statute and apply the same Supreme Court precedent, would use some similar language. However, the majority attempts to elevate that coincidence into substance.
The majority recognizes that “Kilminster does not cite Lusk,” but regards that fact as fully compatible with its theme that the Supreme Court’s later opinion was meant to be little more than a republication of our decision in Lusk. With due respect, it defies belief that a judicial opinion can be understood to deliberately reiterate and, in effect, adopt the substance of another that it does not even cite.2 The inherent improbability of that understanding becomes more graphic when it is remembered that Kilminster does cite and discuss each of the Supreme Court’s previous decisions interpreting ORS 656.156(2), and does repeat their language with attribution.
*185At least as noteworthy as the fact that the linguistic similarities between the two opinions are random and lack any apparent substantive nexus is the fact that there are linguistic differences between the two that do reflect differences in substance. The majority points out that our prevailing opinion in Lusk forcefully disputed the significance of “certainty of injury” as a factor in the analysis under ORS 656.156(2), and expressly took issue with the specially concurring opinion’s focus on that factor. However, as illustrated in the passages that I have quoted from Kilminster, the Supreme Court clearly reiterated the point from its earlier cases that “certainty of injury” is very much a part of the appropriate analysis and can be pivotal to the chain of inferences from which liability under ORS 656.156(2) can be found.
In sum, the majority’s view of what Kilminster means is not strengthened by the fact that some of the isolated language that the majority emphasizes in that opinion has analogs in Lusk. For purposes of my analysis in this dissenting opinion, it is unnecessary for me to express a view about whether the majority is or is not correct in the way it reads Lusk. It suffices to say that, if the majority is right in that regard, but see note 1, Lusk as well as the majority’s decision here are in conflict with the Supreme Court’s decision in Kilminster, and the latter controls.
The majority makes one further point, which I will quote at length, rather than attempt to paraphrase:
“The dissent’s criticism flows from a false first premise, i.e., that the facts alleged in Kilminster, if proved, would conclusively establish the defendant employer’s ‘deliberate intention’ to injure the decedent. Kilminster does not so hold. Rather, the court held that, if proved, the facts alleged by plaintiffs were sufficient to permit a jury to infer the necessary, actionable state of mind:
“ ‘A reasonable finder of fact could infer that DMC acted as it did because it wished to injure or kill decedent. A specific intent to injure or kill decedent certainly is not the only state of mind that could be inferred, but it is a permissible inference. We need not consider whether plaintiff can prove that defendants had the alleged specific intent to injure or kill decedent; in the *186procedural posture of this case, we consider only the sufficiency of the complaint.’ 323 Or at 633 (emphasis supplied; emphasis in original deleted).
“Thus, the court did not hold the plaintiffs’ allegations, if proved, compelled a finding of liability. That is, the Kilminster court understood and expressly acknowledged that, even if the plaintiffs were able to prove that the employer deliberately withheld safety measures despite the certainty of injury, those facts would not automatically establish ‘deliberate intention,’ because the requisite ‘wish to injure’ was just one of a range of mental states the jury could infer from those facts. Among the range of other reasonably inferable, but nonactionable, mental states, is that the employer acted as it did not because it wished to injure the defendant but merely because it wanted to save money.” 147 Or App at 177. (Emphasis in original.)
The “first premise” that the majority attributes to this opinion is simply not here. As the majority indicates, and I agree, it is basic and blackletter law that questions of the mental state that accompany a party’s actions are almost invariably for the factfinder to decide, and the factfinder is not required to infer a particular mental state even when the predicate facts are present to permit the inference to be drawn. However, the relevant question here is not what a factfinder must find but what it may find. In this case, as in Kilminster, the issue is whether there is a permissible inference of deliberate intention to injure that a trier of fact may draw. The answer is yes, and that is why the trial court erred and why the majority errs in affirming the directed verdict.
For all of the above reasons, I respectfully dissent.
For reasons that will appear as the discussion progresses, I find it unnecessary to decide whether the majority is correct in this or anything else that it ascribes to Lusk. I note only that this and the other statements in Lusk on which the majority relies may not accord with the majority’s understanding of them when the context in which they appear is considered.
The majority notes that Lusk and Kilminster were written by the same judge during her respective tours of duty on the two courts. That fact makes it all the more astounding that Kilminster does not cite Lusk if, as the majority hypothesizes, the former was intended to duplicate the judge’s earlier opinion.