NCCI Court Case Update, South Dakota – August 2022


On August 10, 2022, the Supreme Court of South Dakota, in Althoff v. Pro-Tec Roofing, Inc., clarified the intentional tort exception to workers compensation (WC) exclusive remedy, finding that employees who sue their employers for work-related injuries under the intentional tort exception must prove that it was substantially certain—and not virtually certain—that their injuries would occur as a result of the employer’s conduct.

The court analyzed South Dakota statute 62-3-2, which provides that WC is the exclusive remedy for injuries that arise in and out of the employment, except for injuries that are intentionally inflicted by the employer. The court noted that past decisions have applied different standards—substantial certainty and virtual certainty—to determine whether an injury was intentionally inflicted. The court concluded that the substantial certainty standard is the one to be applied. To establish intentional conduct under this standard, an employee would need to show that the employer had known the danger was of a substantial certainty and had more than “knowledge and appreciation of the risk.”

Applying the substantial certainty standard, the court found that the estate of an employee—who died after falling from a roof at work—could not sue the employer in tort because the intentional tort exception to WC exclusive remedy did not apply. The court ruled that the employer’s knowledge that its failure to follow safety requirements and policies could result in the employee’s fall did not alone establish that the employer was substantially certain that the fall would result from its conduct.

For more information on other cases monitored by NCCI’s Legal Division, visit previous Court Case Updates and Court Case Insights, under the Legal section of INSIGHTS on

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