Dominick Lucenti v. Greg Laviero — Eveleigh, J., Dissenting

Summary

Justice Eveleigh dissented from the affirmance of summary judgment for the defendants, concluding that the plaintiff presented sufficient evidence for a jury to determine whether the defendants subjectively believed that injury was substantially certain to result from requiring employees to use a modified excavator operating only at full throttle. She reasoned that repeated warnings, the defendants' acknowledgment of the danger, and the defendants' decision not to repair the machine created competing inferences that could not be resolved on summary judgment. Justice Rogers, dissenting, likewise would have found a genuine factual dispute, while Justice Palmer, concurring, emphasized the defendant's regular personal use of the excavator as showing that he likely did not believe injury was substantially certain.