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

Summary

Rogers, C.J., dissenting, would hold that the plaintiff presented a genuine issue of material fact concerning whether the defendants subjectively believed that operating the rigged excavator was substantially certain to cause injury. The dissent reasons that the warnings about the excavator's danger, the defendants' decision not to repair it, and the totality of the circumstances permitted a jury to draw that inference, notwithstanding evidence that Laviero operated the excavator himself. Eveleigh, J., dissenting, likewise would reverse, while Palmer, J., concurring, would affirm based principally on Laviero's regular use of the excavator.