## Facts

- A contractor employed a worker on a remodeling project converting a building into a casino.
- The worker’s assignment was to clean interior ceramic tile floors using muriatic (hydrochloric) acid to remove grout and residue.
- The acid was a strong, corrosive chemical; the container label warned it should be diluted and used only outdoors, but the warnings were not readable when the worker received it.
- The contractor demonstrated use by pouring undiluted acid directly onto the interior floor and instructing the worker to use it that way.
- The contractor did not warn the worker about the acid’s dangers; he provided gloves and used a small fan for ventilation.
- Over approximately four weeks of regular use, the worker experienced nausea, lightheadedness, and breathing difficulty, was hospitalized, and alleged ongoing health problems.
- The worker sued the employer in tort, alleging an intentional tort to avoid the exclusive-remedy bar of South Dakota workers’ compensation law.
- The trial court denied the employer’s motion for summary judgment, finding factual disputes on intent; the employer appealed from that interlocutory order.

## Issues

1. Whether the evidence could support finding that the employer committed an intentional tort—by desiring injury or knowing injury was substantially certain to occur—so the employee could sue in tort despite workers’ compensation exclusivity.
2. Whether the employer was entitled to summary judgment because the employee’s claim, at most, alleged negligence or recklessness within workers’ compensation.

## Decision

- The Supreme Court of South Dakota reversed the denial of summary judgment.
- The court held that, as a matter of law, the evidence did not show the employer desired to injure the employee or knew the injury was substantially certain to occur.
- The court remanded with directions to enter judgment for the employer on the intentional-tort theory, leaving workers’ compensation as the employee’s exclusive remedy.

## Legal Principles

- Workers’ compensation is generally the exclusive remedy for workplace injuries; a narrow exception permits tort suits only for an employer’s intentional tort.
- “Intent” requires either (a) a desire to cause the harmful consequences, or (b) knowledge that the harmful consequences are substantially certain to result.
- The “substantial certainty” standard is stringent and cannot be reduced to a showing of high risk, gross negligence, or reckless disregard.
- Evidence of unsafe practices and failure to warn, without proof of desire to injure or knowledge of virtually certain injury, does not satisfy the intentional-tort exception.

## Conclusion

The court held that the employer’s direction to use undiluted muriatic acid indoors without adequate warnings showed, at most, negligent or reckless conduct rather than intent or substantial certainty of injury; therefore, workers’ compensation exclusivity barred the employee’s tort action.


Fryer v. Kranz, 616 N.W.2d 102 (S.D. 2000)