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P suffered various injuries on October 28, 2011, while working for D. On the day of the incident, P was replacing a catch basin by operating an excavator in an attempt to pull the catch basin out of the ground. The excavator, while 'running at full throttle [slipped] off the catch basin and [swung] back and then [swung] forward,' injuring P. P and other employees had been warned about the dangers posed by the use of that particular excavator, which would operate only when 'rigged' to run at full throttle. P commenced this action alleging that, because of D's 'reckless conduct,' he suffered injuries. The alleged reckless conduct was in D not fixing the excavator prior to the incident even though D knew that there was a likelihood that individuals operating the equipment, including P would likely sustain serious bodily injuries . . . .' P alleged that a temporary repair made prior to the incident made 'the excavator run at full throttle thereby making a jerking action.' After D moved for summary judgment. D argued that, because there was 'no wilful, malicious or intentional conduct intended to injure P there was no exception to the exclusivity provision for workers' compensation in this case.' D stated that he had operated the excavator a 'week or so' prior to the incident and again after the incident. D also asserted that the excavator operated at 'full throttle' because it was the excavator's hydraulic system that controlled the speed of the machine and not the throttle. D averred that he neither intended to injure P, nor intended to 'create a situation that would result in P being injured,' and he had not ordered the excavator repaired 'between October 28, 2011, and the time of [his] subsequent operation.' P claimed that D had 'rigged' the excavator to operate only at 'full throttle'; thus, D 'intentionally created a dangerous condition that made P's injuries substantially certain to occur, thereby overcoming the exclusivity rule of the [act].' Daniel Quick, a former D employee stated D instructed a mechanic to 'rig the machine so that it could only be operated at full [throttle].' Quick also averred that he D that the excavator was 'too dangerous to operate' and, 'as rigged,' somebody would be injured. P further averred that D stated that he was unwilling to 'put any money into [the excavator]' because he was going to sell it. After P was injured, D fixed the excavator properly, and the excavator subsequently was sold. The court concluded that P could not satisfy [the substantial certainty exception] to the exclusivity provision because he could not 'prove an intent on the part of D to create a working condition that was 'substantially certain' to injure P or other employees.' The court found it significant that D regularly operated the excavator at issue, including 'a week before P's claimed injury and shortly after his injury . . . .' It granted D’s motion. P appealed. The appeals court concluded that P did not raise a genuine issue of material fact as to the 'requirement of a showing of D's subjective belief that P's injury was substantially certain to occur as a result of the temporarily repaired 'excavator that only operates on full throttle. D argued that the substantial certainty exception requires evidence that the employer subjectively intended to engage in conduct that was substantially certain to injure the employees. D asserted that there is no evidence in the record of an intent to injure P through the use of the 'rigged' excavator, as demonstrated by the fact that D expressly denied any such intention and personally operated the excavator both before and after P's injury. P appealed.

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