concurring in part, dissenting in part.
I agree with the majority that the exclusivity provision of the Workers’ Compensation Act, ORS 656.018, bars plaintiffs1 first claim, which he argues is a “negligent” wrongful death claim, and that application of ORS 656.018 to that claim does not violate Article I, section 10, of the Oregon Constitution.2 The trial court did not err in dismissing that claim. I also agree that, with respect to the second claim for “deliberate” wrongful death, plaintiff alleges ultimate facts that are sufficient to meet the deliberate-intention-to-injure standard set forth in ORS 656.156(2)3 and that the trial court, therefore, erred in dismissing that claim. However, for the reasons that follow, I disagree with the majority’s conclusion that ORS 656.018 bars plaintiffs’ ORICO claim.
*639Plaintiffs base the ORICO claim on allegations that defendants’ repeated violations of Oregon’s worker safety laws, ORS 654.305 to 654.335, and regulations promulgated pursuant to those statutes, resulted in decedent’s death. I assume, without deciding, that ORS 656.018 and 656.156(2) apply to that claim. The majority concludes that plaintiffs do not allege deliberate intent to injure in connection with the ORICO claim and, as a result, ORS 656.018 bars that action. The majority is incorrect.
The ORICO claim incorporates the following factual allegations:
“7.
“The work in which the decedent was employed at the time of his death involved an extreme risk of death and danger to employees. The Tower is 603 feet tall. It presents life threatening conditions of fall hazard.
«‡ * % ‡
“10.
“Defendant DMC was aware of said falls, of decedent’s previous injury, and that decedent fell because he was not supplied with required fall protection equipment. Defendant DMC deliberately took no steps to prevent decedent from falling again.
* * * *
“12.
“Decedent was nervous and apprehensive about climbing. He requested that he not climb anymore. Defendant DMC refused this request and ordered decedent to climb or leave his employment.
«íjí 5ft i}i ‡ #
“16.
“Prior to decedent’s death, DMC deliberately did not instruct decedent and other workers to use required safety equipment or to follow safe work practices and OR-OSHA’s fall protection regulations. Decedent and other workers *640were allowed and encouraged by Defendant DMC to ‘free climb’ the Tower which they often did.
“17.
“Defendant DMC deliberately allowed and encouraged decedent and other workers not to use required ladder devices, not to always ‘tie off as required, and not to use other required fall protection equipment and safe procedures. Defendant DMC deliberately did not supply nor require necessary fall protection equipment.
“18.
“Defendant DMC deliberately allowed and encouraged decedent and other workers to not wear required hard hats.
“19.
“Defendant DMC deliberately refused and failed to develop a system or plan to ensure the safety of its workers at the Tower.
“20.
“Defendant DMC deliberately failed to provide adequate supervision to ensure that DMC workers on the Tower, including decedent, followed safe work practices and fall protection regulations.
“21.
“As a result of Defendant DMC’s deliberate conduct as alleged above, workers on the Tower, including decedent, were not adequately protected from fall:
“(a) When they were allowed to free climb the Tower.
“(b) WThen they were not supplied and therefore did not use approved devices compatible with the Tower ladder safety cable.
“(c) When they stepped off the ladder to their work position at the Tower cable tray area.
“(d) When they were allowed to rappel down the Tower center tube.
*641“(e) When they were connected to the Tower ladder safety cable by a four-foot lanyard, against the manufacturer’s specifications and ANSI A14.3.
“(f) When they used fall-protection equipment against manufacturer’s instructions, including using positioning belts for fall-arrest protection, connecting both snap locks of pole straps into the hip ring, using pole straps as lanyards, and wrapping pole straps lanyards around sharp objects.
“* * M= * *
“26.
“Defendant DMC has ratified its deliberate behavior described herein which was intended to cause decedent’s death by asking employs [sic] of DMC to sign affidavits containing false information concerning the facts and circumstances of decedent’s death.” (Emphasis added.)
ORCP 12 provides:
“A. Liberal Construction. All pleadings shall be liberally construed with a view of substantial justice between the parties.
“B. Disregard of Error or Defect Not Affecting Substantial Right. The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.”
This court is obliged to review the allegations quoted above, and all inferences that they create, in the light most favorable to the nonmoving party. Stringer v. Car Data Systems, Inc., 314 Or 576, 584, 841 P2d 1183 (1992).
Viewed in that light, the ORICO claim is susceptible of a reasonable interpretation that satisfies the deliberate-intention-to-injure standard in ORS 656.156(2). The complaint alleges facts showing the risk of death and danger that decedent faced in working on the tower and describes a long list of deliberate actions and failures to act by defendant DMC that caused decedent’s death. Significantly, paragraph 26, last quoted above, refers to defendant DMC’s deliberate behavior that caused the death and states that such behavior “was intended to cause decedent’s death.”
*642ORS 656.156(2) removes the bar to liability in ORS 656.018 if the worker is injured or killed due to the “deliberate intention of the employer * * * to produce such injury or death.” This court’s cases require a pleading, under ORS 656.156(2), to allege an employer’s specific intent to injure the worker, in contrast to a state of mind characterized by recklessness or simple negligence. See Jenkins v. Carman Mfg. Co., 79 Or 448, 453-54, 115 P 703 (1916) (“there must be a specific intent, and not merely carelessness or negligence, however gross”); Heikkila v. Ewen Transfer Co., 135 Or 631, 634, 297 P 373 (1931) (“the employer must have determined to injure an employee”).
Plaintiffs’ ORICO claim does not allege that defendant DMC acted negligently or recklessly. Instead, it alleges that defendant DMC’s deliberate behavior “was intended to cause decedent’s death.” In contrast to plaintiffs argument about the first claim, the ORICO claim does not state that defendant DMC’s behavior “negligently” caused decedent’s death.
In their ORICO claim, plaintiffs incorporate by reference the facts alleged in their claim for negligent wrongful death. Those allegations describe a pattern of deliberate conduct that plaintiffs expressly allege “was intended to cause decedent’s death.” The fact that plaintiff characterizes the first claim as based on a theory of negligence has no bearing on the question whether those factual allegations, when incorporated into the ORICO claim, are sufficient to satisfy the deliberate-intention-to-injure standard of ORS 656.156(2).
In concluding that ORS 656.018 does not bar plaintiff’s second claim, the majority relies on plaintiffs allegations 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.” 323 Or at 633 (emphasis supplied by the majority). What the majority fails to mention is that plaintiffs also incorporate each of those same allegations into their ORICO claim.
*643The majority rests its conclusion that ORS 656.018 bars plaintiffs’ ORICO claim on the following reasoning:
“[I]n the ORICO claim, plaintiffs do not cite ORS 656.156(2) and do not allege that ‘[t]he injury to and death of decedent resulted from the deliberate intention of Defendant DMC to produce such injury and death’ or that decedent, had he lived, would have had cause for action against DMC for its wrongful acts.” 323 Or at 634-35.
The majority does not explain why plaintiffs’ failure to include a citation to ORS 656.156(2) in connection with their ORICO claim precludes plaintiffs from obtaining the benefit of that statute. The absence of a citation to ORS 656.156(2) is of no moment in determining whether plaintiffs have alleged sufficient facts in their ORICO claim to remove the bar of ORS 656.018.
Finally, the majority ignores paragraph 96 of the complaint, which is part of the ORICO claim, which alleges that defendants
“willfully ignored the public policy in favor of worker safety laws [see ORS chapter 654], knowingly violated [their] duty to provide a safe work environment [see ORS 654.101 and 654.305] without regard to the cost of safety measures, wantonly failed to comply with state safety standards [see ORS 654.022, 654.310, and OAR 437-3-040(1)], and deliberately intended to cause worker injury and death. Such wrongful acts are reprehensible and are of the type from which the community deserves protection; accordingly, punitive damages should be assessed against Defendants DMC and Day in the amount of $20,000,000.00.” (Emphasis added.)
The majority explains its unwillingness to give effect to the allegations in that paragraph as follows:
“Plaintiffs are not offering to prove, in order to be entitled to recover under ORICO at all, that defendants had that state of mind [i.e., a deliberate intention to injure]. Instead, plaintiffs are asking that, if they can establish that state of mind, they be allowed to recover an additional measure of damages not normally available on their underlying claim.” 323 Or at 636 n 13 (emphasis supplied by the majority).
*644The majority may or may not be correct that plaintiffs incorporated an allegation that defendants “deliberately intended to cause worker injury and death” as part of their ORICO claim for the sole purpose of supporting a claim for punitive damages. However, even assuming that the majority’s speculation is correct, we may not overlook that allegation in assessing the sufficiency of the complaint. The majority cites to no legal authority in support of its decision to do so. The majority’s unwillingness to give effect to that allegation is a misapplication of this court’s standard of review and a departure from settled legal principles.
In sum, the majority’s conclusion that plaintiffs do not allege a deliberate injury in their ORICO claim is incorrect. The ORICO claim alleges facts that describe a deliberate injury, not the result of mere negligence. Plaintiffs incorporate into the ORICO claim the very same allegations upon which the majority relies in concluding that plaintiffs second claim does allege a deliberate intention to injure and is not barred by ORS 656.018. Moreover, plaintiffs allege, in paragraph 96 of the complaint, which is part of the ORICO claim, that defendants “deliberately intended to cause worker injury and death.” Those allegations plainly are sufficient to remove the bar of ORS 656.018. Accordingly, the ORICO claim is not subject to dismissal for the reason expressed by the majority.
For the foregoing reasons, I dissent from the majority’s analysis and conclusion regarding the sufficiency of the ORICO claim.
In discussing the negligent wrongful death claim, I use the term “plaintiff’ in the singular, as does the majority, 323 Or at 623 n 5, to refer to the personal representative of decedent’s estate.
Plaintiffs allege in the first claim that defendant DMC “deliberately” engaged in a number of acts that caused decedent’s death. However, he argues, apparently for tactical reasons, that the first claim is a viable claim for negligent wrongful death. Plaintiff is bound by that characterization. Because plaintiffs characterization of the first claim is not consonant with the right of action described in ORS 656.156(2), ORS 656.018 bars that claim.
ORS 656.156(2) provides:
“If injury or death results to a worker from the deliberate intention of the employer of the worker to produce such injury or death, the worker, the widow, widower, child or dependent of the worker may take under this chapter, and also have cause for action against the employer, as if such statutes had not been passed, for damages over the amount payable under those statutes.”