dissenting.
I respectfully dissent.
This is an appeal from a summary judgment granted in favor of the defendants in a personal injury suit arising from a job site accident. Plaintiff, Antonio Acevedo, Sr., was employed by certain defendants, including the summary judgment defendants, who are William Droemer, individually and d/b/a William Droemer, Contractor, a/k/a William Droemer Construction Company. Acevedo was injured on the job in a scaffolding accident. It is undisputed that Acevedo subsequently applied for and was awarded workers’ compensation benefits.1
Acevedo’s co-worker on the scaffolding, Roberto Escobedo Salas, Sr., was fatally injured in the construction accident. His surviving wife and children filed suit against the present defendants and others. Acevedo and his family were also named as plaintiffs in the same original petition. Plaintiffs’ First Amended Petition was subsequently filed.
The present defendants then moved for summary judgment against the Acevedo plaintiffs, alleging that “[t]hese defendants are immune from liability based on the allegations in plaintiffs’ [the Acevedos] petition, and as such, plaintiffs have no cause of action against these defendants.” After the motion for summary judgment was filed, the plaintiffs sought and received the trial court’s permission to file their Plaintiffs’ Second Amended Original Petition.2 Thus the trial court had before it the last amended petition. The court granted sum*674mary judgment and severed the Acevedos’ causes.
The plaintiffs bring two points of error: the summary judgment is improper because the defendants failed to establish that no genuine issue of fact exists as to Acevedo’s cause of action for intentional tort, and summary judgment against his wife and children on their intentional tort claims was error.
The summary judgment on appeal is based' on the pleadings and summary judgment motion and response signed by the attorneys. There were no affidavits or other summary judgment evidence before the trial court.
The plaintiffs alleged that the defendants were negligent and grossly negligent by their failure: to adequately supervise, to recognize hazardous conditions at the job site, to comply with safety procedures such as safety nets and safety director, and to meet OSHA standards in many specific instances. Acevedo, as plaintiff, alleged that “as a direct and proximate result of their acts of negligence and gross negligence,” he suffered certain personal injuries and damages. His wife, Margaret, alleged that “as a direct and proximate result of the aforementioned acts of negligence and gross negligence ... which directly and proximately led to the injuries suffered by [her husband, she] has experienced loss of consortium, companionship, society, affection, love, assistance and comfort as well as loss of household services.... ” The two children alleged their injuries stemmed from the same acts of negligence and gross negligence of the defendants, alleging that they witnessed the accident and suffered mental anguish and grief. It is asserted in the petition that these “acts or omissions of negligence demonstrated an entire want of care and total disregard for the rights of others. Therefore, Plaintiffs sue for exemplary damages ...” The plaintiffs alleged that these same acts of negligence and gross negligence “rise to the level of an intentional injury.”
The defendants moved for summary judgment asserting there was no question of material fact, citing the immunity from liability provided by the Texas Workers’ Compensation Act and stating the Aceve-dos had no cause of action. The plaintiff’s response maintained that the defendants did not present any evidence to show entitlement to judgment as a matter of law and, further, that the issue of willfulness of an act or gross negligence is an issue of fact.
The Texas Workers’ Compensation Act, TEX.REV.CIY.STAT.ANN. art. 8306 (Vernon 1967 and Vernon Supp.1990), is the exclusive remedy for work-related injuries with the exception of intentional injury. Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985). (citations omitted) However, “[a]n intentional injury caused by willful negligence or willful gross negligence is not an intentional injury necessary to avoid the effect of the Workers’ Compensation Act.” Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex.1981). The fundamental difference between negligent injury, or even grossly negligent injury, and intentional injury is the specific intent to inflict injury. Reed Tool Co., 689 S.W.2d at 406. The Restatement Second of Torts defines intent to mean that “the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” Id., citing RESTATEMENT (SECOND) OF TORTS § 8A (1965).
The supreme court in Reed Tool Co., supra, stressed that the overwhelming weight of authority from other jurisdictions is that the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury. Id. at 406. Listing other jurisdictions which have held that the intentional failure to provide a safe workplace does not constitute an intentional injury in order for the claimant to escape workers’ compensation limits, the supreme court set out specific examples of nonintentional injuries. Id. at 406-407. For instance, the intention*675al modification or removal of safety controls or guards is not the equivalent of an intentional injury. Id. at 406. The intentional violation of a safety regulation does not authorize recovery beyond that provided by workers’ compensation statutes. Id. at 407. Even the intentional failure to train an employee to perform a dangerous task does not constitute an intentional injury. Requiring an employee to work long hours is not tantamount to an intentional injury. Id. (all citations omitted)
The court recognized these results may seem harsh, stating it is not the gravity or depravity of the employer’s conduct but rather the narrow issue of intentional versus accidental quality of the injury. This quote from 2A A. Larson, The Law of Worker’s Compensation § 68.13 (1982) was included:
The intentional removal of a safety device or toleration of a dangerous condition may or may not set the stage for an accidental injury later. But in any normal use of the words, it cannot be said, if such an injury does happen, that this was deliberate infliction of harm comparable to an intentional left jab to the chin.
Reed Tool Co., 689 S.W.2d at 407. The court continued with a discussion of the policy behind the compensation law. The court held that the intentional failure to furnish a safe place to work does not rise to the level of intentional injury except when the employer believes his conduct is substantially certain to cause the injury. Id. The present plaintiffs failed to allege intentional injury by the general statement that the conduct of the defendants “rises to the level of intentional injury.”
Acevedo’s Intentional Injury Cause of Action
As to the claim of the worker, Antonio Acevedo, Sr., the Texas Supreme Court has long recognized the waiver of intentional tort claims under the workers’ compensation statute, as outlined in Massey v. Armco Steel Co., 652 S.W.2d 932 (Tex.1983):
Although the Workers’ Compensation Act bars an employee’s common law action for negligence against his employer, the Act does not exempt employers from common law liability for intentional torts, (citations omitted) An employee, however, may waive his cause of action for intentional tort if he seeks benefits under the Act. (citations omitted) The collection of workers’ compensation benefits by an employee who subsequently alleges his injury was by intentional tort constitutes an election of remedies and es-tops the employee from proceeding to recover damages outside of the Act. ' (citations omitted)
Id. at 933. By claiming and collecting under the Workers’ Compensation Act for accidental injury, the employee is declaring that there was no intentional injury. Grove Mfg. Co. v. Cardinal Constr. Co., 534 S.W.2d 153, 155 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.). In the present case the motion for summary judgment asserts that Acevedo was employed by Droemer, who was a subscriber to the Act and provided worker’s compensation insurance to Acevedo. The motion further states that these defendants are immune from liability based on the allegations in the plaintiffs’ petition, and plaintiffs have no cause of action against the defendants. The plaintiffs’ response admits the employee relationship, but asserts that the employer “is not immune from liability for willful acts or gross negligence, which is the theory of recovery.” According to the Reed opinion, supra, this “theory of recovery” does not constitute an intentional tort.
As previously noted, there is no dispute that Acevedo has received compensation benefits, which constituted his election. Therefore, he is precluded from recovery against his employer for any alleged intentional injury. In addition, the plaintiffs failed to allege an intentional injury. We observe that plaintiffs’ reliance on Bennight v. Western Auto Supply Co., 670 S.W.2d 373 (Tex.App.—Austin 1984, writ ref’d n.r.e.) is misplaced. As ruled in Reed Tool Co., Bennight does not hold that the intentional breach of the duty to furnish a safe place to work can supply the requisite intent to injure. Reed Tool Co., 689 *676S.W.2d at 407. The court further ruled that Bennight is limited to its facts. Id.
The plaintiffs argue that the pleadings raised issues as to material facts (willfulness of an act or gross negligence as an issue of fact). The Texas law regarding those same acts and omissions have been held by the Supreme Court not to constitute a valid common law claim against an employer for intentional injury. The trial court permitted the plaintiffs to amend their preceding petition a second time. Therefore they were not denied an opportunity to amend if their petition failed to state a cause of action for intentional injury. See Texas Dept. of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974). If, however, a plaintiff pleads facts which affirmatively negate his cause of action, it is proper for the trial court to grant the motion of the defendant for summary judgment. Id. at 9. The allegations of the Acevedo plaintiffs do not meet the standard as enunciated in Reed Tool Co., 689 S.W.2d at 406-07. Moreover, the plaintiffs’ pleadings negate a cause of action based on intentional injury. The summary judgment was properly granted against Antonio Acevedo, Sr.
The Wife’s Cause of Action
Mrs. Copelin, plaintiff in the two Reed Tool Co. cases, sued the employer for gross negligence, negligence, and intentional impairment of consortium although her injured husband waived his “intentional injuries” action by claiming and accepting benefits under the Act. See Reed Tool Co. v. Copelin, 610 S.W.2d 736, 740 (Tex.1980). Her right to recover for her loss of consortium was held to be her separate property and not precluded as a matter of law by the worker’s acceptance of benefits. Id. at 740. The same would be true of Margaret Acevedo. That court held, however, that the part of Mrs. Copelin’s suit which was based on gross negligent impairment and. negligent impairment of consortium was derivative of her husband’s claim and therefore barred by her husband’s workers’ compensation agreement. Id. That part of her suit which properly alleged intentional impairment was not barred but depended upon summary judgment proof of intentional injury.
Margaret’s action is unquestionably derivative of her husband’s action for personal injuries. She has not alleged a separate cause based on intentional injury. The supreme court in the first Reed Tool Co. case held that the Workers’ Compensation Act by exempting Reed Tool’s liability to George Copelin for gross negligence and negligence, as a matter of law, precluded Judy Copelin, his wife, from maintaining her consortium action on those same grounds, (emphasis added) Id. at 739. The difference in that case and Margaret Acevedo’s is that Judy Copelin sued the employer for intentional impairment of consortium, and the final Copelin case turned on her proof of intentional injury by the employer. Here Margaret’s cause of action is solely derivative of her husband’s suit based on gross negligence and negligence, and that is plainly stated in the petition. No grounds of intentional injury were alleged in the Plaintiffs’ Second Amended Petition. In addition, there was no summary judgment proof of intentional injury to Acevedo by the employer to show there existed a material issue of fact as to the employer’s specific intent to injure her husband. This possibly would have supported a separate cause of action by Margaret for intentional impairment of consortium. The summary judgment was properly granted against the wife.
The Children’s Cause of Action
The children’s cause of action for mental anguish also is derivative of the father’s suit based on acts and omissions of negligence and gross negligence: “... that as a direct and proximate result of the acts of negligence and gross negligence on the part of the above named Defendants, [the child] has suffered severe mental anguish and grief having witnessed the incident made the basis of this lawsuit.” Therefore, the summary judgment was also correct as to the children.
I would hold the defendants established as a matter of law their immunity from *677liability and overrule the two points of error. Therefore, I respectfully dissent.
The judgment should be affirmed.
. Both attorneys agreed at the hearing on appellants’ motion for the court to permit late filing of the second amended petition that compensation benefits had been paid to Antonio Acevedo. Although the court reporter denominated the hearing also as one on the motion for summary judgment, it was actually to determine admission of the pleading. No evidence was heard. This case turns on that amended pleading.
. See n. 1, supra.