PIERRE, S.D. (KELO) — The South Dakota Supreme Court has decided that a circuit judge erred in a workers’ compensation dispute when he rejected the company’s argument that workers’ compensation benefits were the exclusive remedy, after an employee fell off a roof and died during construction of the Watertown community center in 2016.

The state’s high court publicly released the unanimous decision Thursday in Althoff v. Pro-Tec Roofing, Inc. The company paid workers’ compensation benefits. But Justin Althoff’s estate sought more and pointed to the company’s previous violations of OSHA regulations and its own safety rules.

Justice Patricia DeVaney wrote, “However, the Estate’s evidence does not establish intentional conduct, namely that Pro-Tec knew that its decision to not strictly comply with required safety measures was substantially certain to result in an employee falling off the roof. None of Pro-Tec’s prior OSHA violations for failing to implement an appropriate fall prevention system involved an injury or death, and there is no evidence that a Pro-Tec employee has ever fallen off a roof at a construction site.”

She continued, “Although Althoff’s death is undoubtedly tragic, at most, the Estate’s evidence of Pro-Tec’s past conduct establishes that Pro-Tec’s conduct on the date in question was reckless (a conscious disregard of a known risk) or negligent (a failure to exercise the care of an ordinary, reasonable, and prudent person despite a foreseeable risk of injury). But as the Court in Fryer explained, only ‘[w]hen an employer intends to commit injury, as opposed to negligently or recklessly committing it,’ does ‘the rationale for embracing workers’ compensation disappear[ ].’”

She concluded, “Pro-Tec’s knowledge that a failure to strictly follow OSHA requirements or its own safety policies could result in a fall does not alone establish a material issue of fact in dispute on the question of whether Pro-Tec committed an intentional act, i.e., that Pro-Tec knew that a fall was substantially certain to occur because of its conduct.”

The state’s high court reversed Circuit Judge Robert Spears’ preliminary decision that neither side should receive summary judgment. Pro-Tec had appealed that decision.

The justices in the decision also clarified “an unresolved debate” about the meaning of a state law that had been interpreted in different ways by different justices through previous decisions and dissents — substantial certainty or virtual certainty.

Justice DeVaney cited several cases and quoted the U.S. Supreme Court’s Jensen decision:, “Therefore, the substantial certainty standard adopted by this Court prior to Harn and applied in McMillin and other workers’ compensation cases is the appropriate standard to be applied. Under this standard, ‘[t]o establish intentional conduct, more than the knowledge and appreciation of risk is necessary; the known danger must . . . become a substantial certainty.'”