407 S.E.2d 222 (1991) 329 N.C. 330

Susie Mae WOODSON, Administrator of the Estate of Thomas Alfred Sprouse, Deceased
v.
Neal Morris ROWLAND; Morris Rowland Utility, Inc.; Davidson & Jones, Inc.; and Pinnacle One Associates, a North Carolina Partnership.

No. 584A88.

Supreme Court of North Carolina.

August 14, 1991.

*224 Smith, Patterson, Follin, Curtis, James & Harkavy by Norman B. Smith and Bryan E. Lessley; and John T. Manning, Greensboro, for plaintiff-appellant.

Poe, Hoof & Reinhardt by J. Bruce Hoof, Durham, and Poyner & Spruill by John L. Shaw, Raleigh, for defendants-appellees Neal Morris Rowland and Morris Rowland Utility, Inc.

Smith Helms Mulliss & Moore by J. Donald Cowan, Jr., and L.D. Simmons, II, Charlotte, for defendant-appellee Davidson & Jones, Inc.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by David H. Batten, Raleigh, for defendant-appellee Pinnacle One Associates.

EXUM, Chief Justice.

This is a wrongful death action arising from a work-related trench cave-in which killed Thomas Alfred Sprouse on Sunday, 4 August 1985. Plaintiff is the administrator of Sprouse's estate. The principal question is whether the exclusivity provisions of the Workers' Compensation Act limit plaintiff's remedies to those provided by the Act. The courts below concluded plaintiff was so limited in her choice of remedies. We disagree. Other issues in the case concern the viability of certain theories of liability plaintiff asserts: the nondelegability of duties of safety owed to plaintiff's intestate, *225 and the negligent hiring and retention of a subcontractor.

I.

Defendant Pinnacle One Associates ("Pinnacle One") was the developer on a construction project for IBM in Research Triangle Park. It retained defendant Davidson & Jones, Inc. ("Davidson & Jones") as general contractor. One aspect of the project required construction of a sanitary sewer line on Chin Page Road in Durham County. Davidson & Jones hired defendant Morris Rowland Utility, Inc. ("Rowland Utility" or "employer") to dig the line. Defendant Neal Morris Rowland ("Morris Rowland") has at all relevant times been the president and sole shareholder of Rowland Utility. Decedent Thomas Sprouse was Rowland Utility's employee.

On defendants' motions for summary judgment, plaintiff's forecast of evidence tends to show the following:

On Saturday, 3 August 1985, workers from both Rowland Utility and Davidson & Jones were digging trenches to lay sewer lines. The Chin Page Road project required two separate trenches. Although Rowland Utility was hired to dig both, in the interest of time a Davidson & Jones crew provided men to work in one of the trench sites.

Because the trenches were not sloped, shored, or braced, and did not have a trench box, Lynn Craig, the Davidson & Jones foreman, refused to let his men work in them. The Occupational Safety and Health Act of North Carolina ("OSHANC") and the rules promulgated thereunder required such safety precautions for the trenches in question. N.C.G.S. § 95-136(g); 13 N.C.Admin.Code 7E.1400 et seq; cf. 29 C.F.R. § 1926.650-.653. Because of the soil conditions and geography, Craig believed that a trench box was the best means of ensuring his workers' safety. Morris Rowland procured a trench box for Craig and the Davidson & Jones crew, which commenced work inside the trench after receiving the safety device on the morning of Saturday, 3 August. Morris Rowland did not acquire a trench box for his own crew.

Charles Greene, a member of the Davidson & Jones crew, was operating a backhoe at the Rowland Utility site that Saturday. Craig checked on the site's progress several times. Morris Rowland asked Craig if he could put a Rowland Utility man on the job because he believed that Greene was not operating the backhoe fast enough. Several times Craig denied these requests. Once, Craig operated the machinery himself for a few minutes and concluded that Greene's progress had been adequate. In his deposition, Craig testified that by the end of the day the sides of the Rowland Utility trench were not being adequately sloped, and that it "could have been a little safer." At that point, the trench construction violated OSHANC regulations.^[1]

On Sunday, 4 August, the Davidson & Jones crew did not work, and its trench box lay idle. However, the Rowland Utility crew reported to the site to continue digging its trench. A Rowland Utility man, rather than Greene, was now operating the backhoe. Morris Rowland and project supervisor, Elmer Fry, discussed whether to use the trench box in their ditch. They decided not to use it, indicating in deposition that they had believed the soil was packed hard enough so the trench would not cave in.

A backhoe worked in front of of decedent Sprouse and his coworkers, who were laying pipe inside the freshly dug trench. A piece of heavy machinery called a front-end loader drove along the edge of the ditch and followed their progress, dumping loads of gravel onto the newly laid pipe. Workers tamped the gravel using a device similar to a jackhammer. Sprouse was the closest person in the trench to the front-end loader.

At about 9:30 a.m. one side of the trench collapsed, completely burying Sprouse and burying the man closest to him up to his *226 armpits. The partially buried man was Alan Fry, son of project supervisor Elmer Fry. The workers pulled Alan Fry out of the trench, and Morris Rowland took him to the hospital.

Morris Rowland did not return to the site for several hours after the cave-in. The remaining workers continued to dig Sprouse out. They refused several offers of help given by Jennifer Spencer, a security guard for another company, who was then on duty and who volunteered to call a rescue squad. By the time the workers had finished digging Sprouse out, he was dead.

The trench was approximately fourteen feet deep and four feet wide with vertical sides at the point of the cave-in. Craig, who saw the site later and commented on a photograph of it at his deposition, stated that the trench was being sloped less than it had been at the end of the previous day's work. He characterized it as "unsafe" and stated that he "would never put a man in it."

Pursuant to N.C.G.S. § 28A-18-2, plaintiff filed civil suits against Rowland Utility; Morris Rowland in his individual capacity; Davidson & Jones; and Pinnacle One Associates. In July 1987, plaintiff filed a Workers' Compensation claim to meet the filing deadline for compensation claims. In order to avoid a judicial ruling that she had elected a workers' compensation remedy inconsistent with the civil remedies she presently seeks, plaintiff specifically requested that the Industrial Commission not hear her case until completion of this action. The Commission has complied with her request, and plaintiff has received no benefits under the Workers' Compensation Act.

In the civil actions before us, the trial court granted all defendants' motions for summary judgment; and the Court of Appeals affirmed, with Judge Phillips concurring in part and dissenting in part. Plaintiff appealed of right on the basis of Judge Phillips' dissent, and we granted her petition for discretionary review as to additional issues. We now affirm in part and reverse in part.

II.

We first decide whether the forecast of evidence is sufficient to survive Rowland Utility's and Morris Rowland's motions for summary judgment, which are based on the ground that Sprouse's death was caused only by "accident" under the Workers' Compensation Act ("the Act"). If the death can only be considered accidental, defendants' summary judgment motions were properly allowed because Sprouse's death would fall within the Act's exclusive coverage, and no other remedies than those provided in the Act are available to plaintiff either against his employer, Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240 (1966), or a co-worker, Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977). On the other hand, if the forecast of evidence is sufficient to show that Sprouse's death was the result of an intentional tort committed by his employer, then summary judgment was improperly allowed on the ground stated, because the employer's intentional tort will support a civil action. See Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), and cases cited therein.

We conclude, for reasons given below, that the forecast of evidence is sufficient for plaintiff to survive defendants' motions for summary judgment because: (1) it tends to show that Sprouse's death was the result of intentional conduct by his employer which the employer knew was substantially certain to cause serious injury or death; and (2) this conduct is tantamount to an intentional tort committed by the employer. We conclude, further, that plaintiff may pursue simultaneously her workers' compensation claim and her civil action without being required to elect between them because the forecast of evidence tends to show that: (1) Sprouse's death was the result of both an "accident" under the Act and an intentional tort; and (2) the Act's exclusivity provision does not shield the employer from civil liability for an intentional tort. Plaintiff is, of course, entitled to but one recovery.

A.

Section 97-9 of the Workers' Compensation Act provides:

*227 Every employer subject to the compensation provisions of this Article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee for personal injury or death by accident to the extent and manner herein specified.

N.C.G.S. § 97-9 (1985) (emphasis added).

Section 97-10.1 provides:

If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.

N.C.G.S. § 97-10.1 (1985).

We interpret the Act according to well-established principles of statutory construction. The primary principle is to ensure that the purpose of the legislature is accomplished. Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 403 S.E.2d 291 (1991); Hunt v. Reinsurance Facility, 302 N.C. 274, 275 S.E.2d 399 (1981). To further this aim, the Court accords words undefined in the statute their plain meaning as long as it is reasonable to do so. Electric Supply Co., 328 N.C. 651, 403 S.E.2d 291; Burgess v. Your House of Raleigh, 326 N.C. 205, 388 S.E.2d 134 (1990). Ambiguous or unclear terms are read consistently with overriding legislative purpose. In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978).

The Act seeks to balance competing interests and implement trade-offs between the rights of employees and their employers. It provides for an injured employee's certain and sure recovery without having to prove employer negligence or face affirmative defenses such as contributory negligence and the fellow servant rule. Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244. In return the Act limits the amount of recovery available for work-related injuries and removes the employee's right to pursue potentially larger damages awards in civil actions. Id. at 712, 325 S.E.2d at 246-47 (citing 1 A. Larson, The Law of Workmen's Compensation § 2.20 (1984)). "[W]hile the employer assumes a new liability without fault he is relieved of the prospect of large damage verdicts." 2A A. Larson, The Law of Workmen's Compensation § 65.11 (1989) (hereinafter "Larson"). Notwithstanding these important trade-offs, the legislature did not intend to relieve employers of civil liability for intentional torts which result in injury or death to employees. In such cases the injury or death is considered to be both by accident, for which the employee or personal representative may pursue a compensation claim under the Act, and the result of an intentional tort, for which a civil action against the employer may be maintained. See Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244, and cases cited therein.

In Pleasant, which involved co-employee liability for recklessly operating a motor vehicle, we concluded that "injury to another resulting from willful, wanton and reckless negligence should also be treated as an intentional injury for purposes of our Workers' Compensation Act." 312 N.C. at 715, 325 S.E.2d at 248. The Pleasant Court expressly refused to consider whether the same rationale would apply to employer misconduct. Id. at 717, 325 S.E.2d at 250. Nonetheless, Pleasant equated willful, wanton and reckless misconduct with intentional injury for Workers' Compensation purposes.

The plaintiff in Barrino v. Radiator Specialty Co., 315 N.C. 500, 340 S.E.2d 295 (1986), urged us to extend the Pleasant rationale to injuries caused by an employer's willful and wanton misconduct. The plaintiff, administrator of the estate of the deceased employee, alleged in part that the decedent died as a result of severe burns and other injuries caused by an explosion and fire in the employer's plant. On the employer's motion for summary judgment, the plaintiff's forecast of evidence, which included the allegations of the complaint, *228 tended to show as follows: the employer utilized ignitable concentrations of flammable gasses and volatile flammable liquids at its plant, violated OSHANC regulations in the use of these substances, covered meters and turned off alarms designed to detect and warn of dangerous levels of explosive gasses and vapors—all of which resulted in the explosion and fire which caused the employee's death.

A majority of this Court in Barrino refused to extend the Pleasant rationale to employer conduct, but only two of the four majority justices expressed the view that the plaintiff's injuries were solely by accident and that the remedies provided by the Act were exclusive. These two justices relied in part on Freeman v. SCM Corporation, 311 N.C. 294, 316 S.E.2d 81 (1984), a per curiam opinion which concluded that a complaint alleging injuries caused by the willful and wanton negligence of an employer should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure because exclusive jurisdiction rested under the Workers' Compensation Act with the Industrial Commission.

The other two justices in the Barrino majority concurred on the ground that the plaintiff, having accepted workers' compensation benefits, was thereby barred from bringing a civil suit. Barrino, 315 N.C. at 514-15, 340 S.E.2d at 304 (Billings, J., concurring).

The three remaining justices dissented on the ground that the plaintiff's forecast of evidence was sufficient to raise a genuine issue of material fact as to whether the defendant-employer's conduct "embodies a degree of culpability beyond negligence" so as to allow the plaintiff to maintain a civil action. Id. at 521, 340 S.E.2d at 307 (Martin, J., dissenting). Believing the plaintiff's forecast of evidence was sufficient to survive summary judgment on the question of whether the employer was guilty of an intentional tort, the Barrino dissenters said:

As Prosser states: "Intent is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does." W. Prosser, Handbook of the Law of Torts § 8 (4th ed. 1971). Accord Restatement (Second) of Torts § 8A and comment b (1965). The death of Lora Ann Barrino [the employee] ... was, at the very least, "substantially certain" to occur given defendants' deliberate failure to observe even basic safety laws.

Id. at 518, 340 S.E.2d at 305 (Martin, J., dissenting). As discussed in a subsequent portion of this opinion, the dissenters also concluded that the plaintiff was not put to an election of remedies. They thus would have allowed the plaintiff's common law intentional tort claim to proceed to trial on the theory that the defendant intentionally engaged in conduct knowing it was substantially certain to cause serious injury or death. They would also have allowed the plaintiff to pursue both a workers' compensation claim and a civil action.

Today we adopt the views of the Barrino dissent. We hold that 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, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer. Such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the Act. Because, as also discussed in a subsequent portion of this opinion, the injury or death caused by such misconduct is nonetheless the result of an accident under the Act, workers' compensation claims may also be pursued. There may, however, only be one recovery. We believe this holding conforms with general legal principles and is true to the legislative intent when considered in light of the Act's underlying purposes.

Our holding is consistent with general concepts of tort liability outside the workers' compensation context. The gradations of tortious conduct can best be understood as a continuum. The most aggravated conduct *229 is where the actor actually intends the probable consequences of his conduct. One who intentionally engages in conduct knowing that particular results are substantially certain to follow also intends the results for purposes of tort liability. Restatement (Second) of Torts § 8A and comment b (1965) (hereinafter "Rest.2d of Torts"). "[I]ntent is broader than a desire to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts § 8, at 35 (5th ed. 1984) (hereinafter "Prosser"). This is the doctrine of "constructive intent." "As the probability that a [certain] consequence will follow decreases, and becomes less than substantially certain, the actor's conduct loses the character of intent, and becomes mere recklessness..... As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence." Rest.2d of Torts § 8A, comment b.

Prosser discusses the tortious conduct continuum:

Lying between intent to do harm, which... includes proceeding with knowledge that the harm is substantially certain to occur, and the mere unreasonable risk of harm to another involved in ordinary negligence, there is a penumbra of what has been called "quasi-intent." To this area, the words "willful," "wanton," or "reckless," are customarily applied; and sometimes, in a single sentence, all three.

Prosser § 34, at 212 (footnotes omitted).

In North Carolina we follow, applying our own terminology, the basic rules discussed in the Restatement and Prosser. We have recognized the doctrine of "constructive intent" and have generally applied it where willful and wanton conduct is present. For a full, scholarly discussion of this doctrine, see Pleasant, 312 N.C. 710, 325 S.E.2d 244. This discussion in Pleasant makes clear that an actual intent to cause injury is not a necessary element of an intentional tort generally, nor is it required for intentional tort claims based on work-related injuries.

Though the reasons in Pleasant for holding co-employees civilly liable for injuries caused by willful and wanton misconduct are sound, it 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. N.C.G.S. § 97-93 (1985). This distinction alone justifies the higher "substantial certainty" threshold for civil recovery against employers.

The substantial certainty standard satisfies the Act's purposes of providing trade-offs to competing interests and balancing these interests, while serving as a deterrent to intentional wrongdoing and promoting safety in the workplace. N.C.G.S. § 95-126(b)(2) (1985).

Other jurisdictions which have considered how egregious employer misconduct must be in order to justify a worker's civil recovery against the employer extraneous to workers' compensation statutes have reached different results. Some require that the employer actually intend to harm the worker, as in a classic assault and battery suit. See, e.g., Griffin v. George's, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979); see generally 2A Larson § 68.13 and cases cited therein. Others require the employer's misconduct to be willful and wanton.^[2]See, e.g., Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978). Still others require intentional conduct which the employer knows is "substantially certain" to cause injury or death. Bazley v. Tortorich, 397 So.2d 475 (La.1981); Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986); Jones v. VIP Development Co., 15 Ohio St.3d 90, 472 N.E.2d *230 1046 (1984); Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982); VerBouwens v. Hamm Wood Products, 334 N.W.2d 874 (S.D.1983).

It is true that some of the cases adopting the willful and wanton misconduct or substantial certainty standard have been modified by statute. Legislation enacted in Michigan modified the decision in Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882. The legislation provides:

The only exception [to the exclusivity of workers' compensation] is an intentional tort. An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer has actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.

Mich.Comp.Laws § 418.131 (Supp.1990) (emphasis added).

Effective in 1986, the Ohio legislature amended its workers' compensation law in an apparent response to cases such as Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572, and Jones v. VIP Development Co., 15 Ohio St.3d 90, 472 N.E.2d 1046. The Ohio statutory amendments provide for civil recovery outside workers' compensation for acts "committed with the intent to injure another or committed with the belief that the injury is substantially certain to occur." 41 Ohio Rev.Code Ann. § 4121.80 (1990). Although the Ohio amendments equate substantial certainty with the "deliberate intent to cause an employee to suffer injury ... or death," id., they also treat certain unsafe acts as if they were done with the intent to injure another.

While generally moving away from the willful and wanton misconduct standard enunciated in Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907, and toward a standard requiring "deliberate intention to injure," W.Va.Code § 23-4-2 (1983), the West Virginia legislature has set out an important exception. The exception allows plaintiffs to recover outside workers' compensation where the employer is aware that there is a high degree of risk of serious harm, and that the conditions creating the risk violate specific safety statutes. Id.

On the basis of these kinds of statutory modifications, Rowland Utility urges us to conclude that the willful and wanton misconduct and substantial certainty standards should be rejected as inconsistent with the legislative purpose of North Carolina's Workers' Compensation Act. We do not read the statutory modifications of judicial decisions in other jurisdictions to repudiate the standards adopted in those decisions. The statutory modifications seem more to narrow the application of, rather than to abolish, these standards. The Michigan legislature provided that "an employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge." Mich.Comp. Laws § 418.131 (Supp.1990). This amounts only to a rejection of the substantiality aspect of the substantial certainty standard. The Ohio and West Virginia legislatures essentially redefined what employer conduct will allow tort recovery. These legislative modifications confirm, rather than reject, the proposition that, in those states, actual intent to injure is not required in order for an employer to be civilly liable outside workers' compensation statutes.

At least two other states, Louisiana and South Dakota, continue to apply the substantial certainty standard adopted by their judiciaries, Bazley v. Tortorich, 397 So.2d 475 (La.); VerBouwens v. Hamm Wood Products, 334 N.W.2d 874 (S.D.), without legislative modification.

Thus, both courts and legislatures in a fair number of other jurisdictions have rejected the proposition that actual intent to harm is required for an employer's conduct to be actionable in tort and not protected by the exclusivity provisions of workers' compensation. Our adoption of the substantial certainty standard does the same.

*231 B.

We now apply the substantial certainty standard to the facts. We emphasize that in 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. Wilkes County Vocational Workshop v. United Sleep, 321 N.C. 735, 365 S.E.2d 292 (1988).

A corporation can act only through its agents, which include its corporate officers. Raper v. McCrory-McLellan Corp., 259 N.C. 199, 130 S.E.2d 281 (1963). For purposes of this appeal plaintiff has forecast sufficient evidence that at all relevant times Morris Rowland as chief executive officer was exercising corporate authority in directing the trenching operations. We thus examine Morris Rowland's conduct and attribute it to his principal, Rowland Utility. If plaintiff's forecast of evidence is sufficient to show that there is a genuine issue of material fact as to whether Morris Rowland's conduct satisfies the substantial certainty standard, then plaintiff is entitled to take her case against Rowland Utility to trial.

We conclude that plaintiff's forecast of evidence is sufficient to raise such a material issue of fact against Rowland Utility. Agronomist James Rees, offered as an expert in soil and environmental analysis, submitted an affidavit on the status of the soil where the cave-in occurred. He stated:

Based on my review of the physical conditions existent at the time of the trench collapse, as nearly as they can be determined, and on the nature and physical conditions of the surface and subsurface materials, my conclusion is that the trench as constructed by Morris Rowland Utility, Inc. consisting of sheer, vertical walls approximately fourteen feet deep, had an exceedingly high probability of failure, and the trench was substantially certain to fail.

From this evidence, a reasonable juror could determine that upon placing a man in this trench serious injury or death as a result of a cave-in was a substantial certainty rather than an unforeseeable event, mere possibility, or even substantial probability.

There is also evidence to indicate that Morris Rowland knew of this substantial certainty. Neither we, nor later the jury, need accept his characterization of his state of mind at face value. Other evidence is available from which his state of mind can be inferred. See, e.g., Waste Management of Carolinas, Inc. v. Peerless, 315 N.C. 688, 700 n. 6, 340 S.E.2d 374, 383 n. 6 (1986) (recurrent evidence of "accidental" toxic emissions allows inference that they were intentional). There is evidence that Morris Rowland was capable of discerning extremely hazardous ditches. His career had been excavating different kinds of soil. He knew the attendant risks. He had been cited at least four times in six and one-half years immediately preceding this incident for violating multiple safety regulations governing trenching procedures. He was aware of safety regulations designed to protect trench diggers from serious injury or death. He knew he was not following these regulations in digging the trench in question.

Davidson & Jones foreman Lynn Craig testified that the trench at point of collapse was "unsafe" and that he would "never put a man in it" without a trench box or other precautions. Craig was an experienced construction worker with knowledge about soil composition and the dangers associated with deep-ditch trenching. His emphatic indication that the trench was unsafe could lead reasonable jurors to conclude that Morris Rowland, who was also at the trench and equally capable of observing its dangerous tendencies, shared Craig's knowledge and disregarded the substantial certainty of a cave-in resulting in serious injury or death. Rowland's attempts to rush Greene the previous day and his commencement of hasty, unsafe procedures, including his failure to use the available trench box, would offer the jury a motive for his conduct-swift completion of the project, whatever the risk.

Morris Rowland's knowledge and prior disregard of dangers associated with trenching; his presence at the site and *232 opportunity to observe the hazards; his direction to proceed without the required safety procedures; Craig's experienced opinion that the trench was unsafe; and Rees' scientific soil analysis converge to make plaintiff's evidentiary forecast sufficient to survive Rowland Utility's motion for summary judgment.

We reject Rowland Utility's reasons for concluding to the contrary. Rowland Utility contends that no reasonable business person would knowingly engage in conduct that is substantially certain to cause a trench cave-in because of the significant delay in work and additional cost that such an event would cause. This argument is more properly directed toward the jury at trial rather than to the Court on summary judgment.

At least one court has indicated that a trench cave-in may satisfy the substantial certainty standard. In Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882, the Michigan Supreme Court discussed the trench cave-in case of Serna v. Statewide Contractors, 6 Ariz.App. 12, 429 P.2d 504 (1967). The Beauchamp Court indicated that the failure to observe trenching safety procedures and the resulting cave-in discussed in Serna would likely have presented a valid claim had the Serna court applied the substantial certainty standard. Beauchamp, 427 Mich. at 23, 398 N.W.2d at 892.

Rowland Utility also argues that its placing Alan Fry, son of project supervisor Elmer Fry, into the trench with the acquiescence of Elmer Fry is inconsistent with Rowland Utility's knowledge that a cave-in was a substantial certainty. The argument is that Elmer Fry would never have agreed to put his son in the trench had he appreciated the danger and that since Elmer Fry did not appreciate the danger, neither did Morris Rowland. Again, this is an argument more properly directed to the jury, which on all the evidence can determine whether the state of Morris Rowland's knowledge and appreciation of the risk was more like Elmer Fry's on the one hand or Lynn Craig's on the other.

C.

Plaintiff next asks us to hold that the forecast of evidence is sufficient to survive Morris Rowland's motion for summary judgment in his individual capacity. She contends that the forecast of evidence at least raises a genuine issue of material fact as to whether Morris Rowland was acting as her decedent's co-employee and is, therefore, liable under Pleasant for willful and wanton misconduct. Morris Rowland contends that since the forecast of evidence shows without contradiction that he is president and sole shareholder of Rowland Utility, he cannot be held liable individually as a co-employee of the decedent. He must, rather, be treated as the "alter ego" of the corporation itself.

Since the evidentiary forecast shows that Morris Rowland was at all material times the president and sole shareholder of Rowland Utility, and was acting in furtherance of corporate business, we conclude that any individual liability on his part must be based on the same standard as that applied to the corporation. A number of jurisdict