concurring by separate opinion:
Although I concur in most of the majority opinion, I write separately for the limited purpose of expressing my individual reasons for concluding that there is a genuine issue of material fact as to whether the conduct of appellee’s agents amounted to a “willful” failure to guard or to warn against a dangerous structure at the Cov-ington School playground for purposes of KRS 411.190(6).
In my view, the majority has overlooked a controlling precedent in which our supreme court adopted a definitive definition of the word “willful.” In Kirschner v. Louisville Gas & Electric Company, Ky., 743 S.W.2d 840 (1988), the court was called upon to construe KRS 381.232 as it pertains to intentionally-inflicted injuries. In doing so, the court expressly adopted Professor Prosser’s definition of the word “willful” as follows:
This type of conduct has been defined in Prosser & Keeton on the Law of Torts, 5th Ed. (1984), Chapt. 5, Sec. 34, pp. 212-213 as:
... They apply to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended....
The usual meaning assigned to “willful,” “wanton,” or “reckless,” according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences ....
Id. at 842-843.
Here, although it is highly doubtful that a jury will conclude that appellee’s agents were consciously indifferent to the consequences of permitting children to remove the chain and the concrete weights from the back of the offending basketball goal, I am constrained to conclude that the record creates a genuine issue of material fact in this vein which is sufficient to withstand a motion for summary judgment when tested by the Steelvest, supra, standard. However, unlike the majority, I would direct that the issue of whether appellee’s conduct was “willful” should be submitted to the jury pursuant to Prosser’s definition of that word as adopted in Kirschner, rather *908than pursuant to the different definition of the word as promulgated in the majority opinion. To do otherwise violates the rule requiring us to follow existing supreme court precedents. SCR -1.030(8)(a).
Further, I fail to perceive that there is any issue of fact as to whether the conduct of appellee’s agents for purposes of the statute was malicious rather than willful. In the first place, the words “willful” and “malicious” are used in the statute in a mutually exclusive sense, as demonstrated by the fact that they are separated by the disjunctive word “or,” which ordinarily is used to connote exclusivity. Further, although the words “malicious” and “willful” are similar, they certainly are not synonymous and they should not be treated as having an identical legal meaning. Indeed, the word “malicious” has generally been defined in the law as involving a state of mind which is characterized by, or which involves acts which are done with, wicked or evil intentions. See, e.g., Black’s Law Dictionary (6th ed. 1990). Such a state of mind is clearly much more egregious and culpable than that which is implicated by a mere “willful” act. Moreover, in my opinion there is no evidence in the record sufficient to support a finding that the conduct of appellee’s agents was motivated by a “malicious” state of mind. To conclude otherwise, as the majority has done, is both unjustified and unwarranted. Thus, although I concur in the result reached by the majority, I would remand this action for a trial as to the limited issue of whether the actionable conduct of appellee’s agents was “willful.” Further, in submitting this issue to the jury, I would direct the court to define the word “willful” in accordance with its definition as adopted by the supreme court in Kirschner, supra.