I. INTRODUCTION

Appellants, John G. Moore, Sr. and Sharon Moore, Personal Representatives of the Estate of John G. Moore, Jr. appeal from an opinion of the Court of Appeals that affirmed the Order Granting Judgment Notwithstanding the Verdict (“JNOV”) entered by the trial court.

On September 30, 1999, a Hopkins County jury determined that Appellee, Environmental Construction Corporation (“Environmental”) had caused the death of John G. Moore, Jr. through “deliberate intention” when the walls of the trench in which he was working caved in, burying him and causing his death by “compression asphyxia.” Upon Environmental’s motion, the trial court entered an Order Granting JNOV and stated that from the evidence presented at trial “the only reasoned analysis is that John G. Moore, Jr. did not die as a result of the deliberate intention of the Defendant or its employees.” Upon review, the Court of Appeals, “[hjaving thoroughly analyzed the evidence presented in this matter against the standard set for recovery by KRS 342.610(4) and [relevant case law] believe[d] the trial court properly entered JNOV.” From a review of the trial proceedings and the evidence presented therein, we hold that the trial court’s grant of JNOV was appropriate and therefore affirm.

II. BACKGROUND

In April of 1996 Environmental won the bid on the contract for a sewer rehabilitation and new sewer project in Dawson Springs, Kentucky. The contract contemplated 120 days for the project, which would involve digging trenches and laying new sewer lines throughout the town, including work in residential areas.

The Occupational Safety and Health Administration (“OSHA”) Regulations as enforced by Kentucky provide that for trenches exceeding five feet in depth, employers must take one of three safety precautions to prevent cave-ins: a) sloping the sides of the trench away from the excavation, b) shoring the walls of the trench with hydraulic jacks or timbers, or c) installing a trench box inside the trench in which employees can perform their work.1 Before leaving headquarters in Lexington, Randy Price (“Price”), the ten-year superintendent for Environmental, made a con*15scious decision to leave the shoring jacks and trench box in Lexington. Once work began in Dawson Springs, Price used the sloping or “cutting back” method where the trench exceeded five feet in depth.

At the beginning of July, 1996, Price called on a second crew to help with the trench and pipe laying work. At the request of William Wilson, one of Environmental’s officers, Michael Sargent (“Sargent”), who had previously worked for Environmental and had experience in trench work, joined the project and brought along his son Lewis. Price made Sargent the foreman and “competent person” 2 for the second crew based on Sargent’s past work for Environmental and Sargent’s competent person training certification. At the end of July, Sargent hired his “nephew”3 John G. Moore, Jr. as an additional second crewmember.

When Sargent and his crew began the trench work on Fredericks Road, Price told Sargent that he would obtain whatever safety devices Sargent thought necessary to do the job right and ensure that no one was injured. Both Price and Sargent classified the soil type in that particular trench as the most cohesive type and the least likely to cause a cave-in and determined that no safety precautions needed to be taken. In the deposition that was read to the jury at trial, Sargent stated that “[he] deemed it safe [him]self or [he] wouldn’t have allowed [his] son and [his] nephew or [him]self to get in the hole and work.”

Charles Wilson (“Wilson”), who dug the Fredericks Road trench with a backhoe, testified at trial that the trench walls were solid with no cracks or dirt clods falling out. Sargent and his son Lewis both noted that the soil was a hard clay that was hard to dig in some parts and easier in others. Nevertheless, sometime in the late morning or early afternoon of July 30, 1996, Lewis Sargent exited the trench in which he and John, Jr. were working; Sargent replaced his son in the trench because John, Jr. was bent over the sewer pipe preparing it for the next piece and Sargent did not like to leave a worker in a trench alone. Suddenly, a nine-foot long portion of the trench wall collapsed onto John Moore, Jr.’s back. Sargent then tried to dig his nephew out with his bare hands, but the backhoe operator warned him to get out of the trench because it was about to collapse again. Sargent escaped the second cave-in and the crewmembers began digging out John, Jr. Their attempts were in vain because the collapsed trench wall had buried and suffocated him almost instantly.

After John, Jr.’s body was recovered, Price had the trench filled in because it was located near a street in a residential area. Work on the project was halted for two days. Once work resumed, Steve Rogers (“Rogers”), a Kentucky OSHA inspector, was called to the site to investigate. Although Rogers could not investigate the trench because it had been filled in, he noted that the decision to fill in the trench was reasonable given that it was in a residential area. Rogers talked to Price and two other employees who were work*16ing the day of John, Jr.’s death and issued four serious citations.4 Rogers stated that all his citations were based on facts that Price had relayed to him and he noted that Price appeared forthcoming and truthful. At trial, Rogers testified that he saw no evidence to indicate that Environmental had a deliberate intention to injure or Mil John G. Moore, Jr.

At trial, all parties involved recognized the safety precautions for trench work and acknowledged a risk of injury or death from failure to take the proper precautionary measures.5 The Appellants believe that Environmental’s failure to take the proper precautions constituted a deliberate intention to kill their son, such that the exclusivity provisions of the Workers’ Compensation Act would not apply:

If injury or death results to an employee through the deliberate intention of his employer to produce such injury or death, the employee or his dependents may take under this chapter, or in lieu thereof, have a cause of action at law against the employer as if this chapter had not been passed, for such damage so sustained by the employee, his dependents or personal representatives as is recoverable at law.6

Although the jury’s verdict confirmed the Appellants’ position, the trial judge determined that the safety violations did not amount to a deliberate intent on the part of Environmental to bring about the death of John G. Moore, Jr. and entered a JNOV for Appellee.

III. ANALYSIS

Upon review of the Order Granting JNOV, we must examine the trial court’s decision under the clearly erroneous standard.7 That is to say, we must review all the evidence presented to the jury and must uphold the trial court’s decision if “after all the evidence is construed most favorably to the verdict winner, a finding in his favor would not be made by a reasonable [person].”8

As provided in Fryman v. Electric Steam Radiator Corp,,9 “ ‘deliberate intention’ [has been interpreted to mean] that the employer must have determined to injure an employee and used some means appropriate to that end, and there must be specific intent.”10 “ ‘The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be character*17ized as reckless or wanton, but it is not an intentional wrong.’ ”11

The United States District Court for the Eastern District of Kentucky recently encountered the exception to the exclusivity provision of the Kentucky Workers’ Compensation Act and determined that without evidence that the employers acted to harm employees, evidence that the employers knew that employees would be exposed to chemicals that caused cancer but did not take measures to reduce or alleviate risks, was insufficient to give rise to a tort cause of action under the deliberate intention exception to the exclusivity provision of Kentucky’s Workers’ Compensation Act.12

In Tennessee, where a deliberate intention must also be established to avoid the exclusivity of the Workers’ Compensation Act, evidence of an employer’s failure to follow safety regulations and a history of disregarding safety regulations13 or permitting dangerous working conditions14 has been found insufficient to establish that an employer had actual intent to injure an employee. Many other states in which Workers’ Compensation exclusivity is abrogated when the employer intentionally causes injury or death, have concluded that violations of OSHA regulations or other safety standards alone do not rise to the level of an intentional wrong necessary to overcome the Workers’ Compensation exclusivity provisions15 because mere knowl*18edge and appreciation of the risk involved in an act is not the same as the intent to cause the injury.16 Mere carelessness or negligence, however gross, wanton or reckless, does not establish such intent.17

From a review of the trial proceedings and the evidence presented therein, we determine that the trial court’s grant of JNOV was appropriate, as “it is the duty of the court to set aside a jury verdict which imposes liability upon sympathetic considerations, where fault is not shown.”18

The evidence presented at trial, taken in the light most favorable to the Appellants, shows that since the trench was over five feet deep Environmental failed to comply with Kentucky OSHA regulations regarding safety precautions for trench work by not sufficiently sloping the trench, shoring the trench walls, or installing a trench box. Environmental failed to provide the proper means of escape from the trench and failed to report John G. Moore, Jr.’s death to Kentucky OSHA officials within the required eight hours. Environmental also failed to have a competent person perform daily inspections of the site.19 Environmental knew that injury or death could result from a failure to take the proper precautions. Nevertheless, Environmental’s violation of OSHA regulations and acknowledgement of the possible eonse-*19quences does not amount to a deliberate intention to produce John G. Moore, Jr.’s death.20

Appellants’ reliance on the inferred intent approach in homicide cases is misplaced as the actions of defendants in such homicide cases involve intentional action directed toward the victim. In the case of Parker v. Commonwealth,21 on which Appellants rely, the actions of the defendant involved one blow to his 22 month-old stepson’s head with his fist and other blows to the child’s head by striking it against a fixed object.22 There, the defendant’s intent could be inferred because of the direct action he took and the extent of the victim’s injuries. Had the blows to the child’s head been an accident they would not have been so numerous or severe. In Hudson v. Commonwealth,23 the defendant strangled his girlfriend to death, bound and gagged her and left her body in the trunk of a car. In Stopher v. Commonwealth,24 the defendant killed a sheriffs deputy by shooting him in the face and in Smith v. Commonwealth,25 the defendant shot an acquaintance at point blank range. The intentional and vicious actions by the defendants in each of these cases eliminated the possibility that the deaths were caused by accident and justified the inferred intent approach. Absent actions of the same nature, this approach cannot be used to infer deliberate intent under KRS 342.610(4).

In rejecting the plaintiffs argument that “constructive intent” would satisfy the requirement necessary for “wilful misconduct” under Arizona’s exception statute, the court in Serna v. Statewide Contractors, Inc.,26 stated that the statute required that there be a “deliberate” intention as distinguished from some kind of intention presumed from gross negligence. Affirming a summary judgment in favor of the defendant, the court concluded that there had been a failure to establish that the employer had acted with the intent required by the statute.27

“It must be remembered that it’s not the depravity of the employer’s conduct that is being tested, but the narrow issue of the intentional versus the accidental quality of the precise injury.”28 There*20fore, a “[vjiolation of a safety statute [ajlone does not constitute intentional injury,” and neither does “failure to follow recommended procedures or to take standard precautions.”29 “[T]o say that a safety statute was violated is only to say that an employer has failed to use reasonable care.”30

In the case sub judice, the Appellee’s actions involved a failure to follow safety regulations. Although Environmental was cited for serious Kentucky OSHA violations, from the evidence presented to the jury, viewed in a light most favorable to the Appellants, there is no indication that Environmental’s failure was done with the deliberate intention to produce John Moore, Jr.’s death. Without more, Environmental’s violation of Kentucky OSHA regulations does not amount to the deliberate intention necessary to pursue remedies outside of the Workers’ Compensation Act.

IV. CONCLUSION

For the above reasons, we affirm the Court of Appeals.

dissenting.

I respectfully dissent from the majority opinion that affirms the trial court’s grant of the judgment notwithstanding the verdict (“JNOV”) in favor of Appellee, Environmental Construction Corporation. The trial court overturned the jury award of damages in favor of Appellants, Sharon and John Moore, Sr., for the wrongful death of their son, John Moore, Jr. The majority held that “the trial court’s grant of JNOV was appropriate, as ‘it is the duty of the court to set aside a jury verdict which imposes liability upon sympathetic considerations, where fault is not shown.’ ”1 I believe that Appellants presented more than sympathy; that their evidence was sufficient for the jury to reasonably find that Appellee acted with deliberate intent to bring about the death of the decedent.

The evidence presented at trial revealed deliberate actions on the part of Appellee in forcing its employees, including the deceased Mr. Moore, to work in a manifestly unsafe environment. Appellee purposefully did not provide safe working conditions for the digging of the trench. It refused to install a trench box or adequately slope the sides of the trench. Kentucky OSHA standards require safety precautions when trenches are over five feet deep, and the trench in question was at least seven feet deep. These actions by Appellee were intentional and fully supported the jury finding of liability against Environmental.

At trial, management personnel of Environmental admitted that Appellee knew of the dangers, hazardous conditions, and potential consequences associated with placing Mr. Moore in an unsafe trench. The testimony also revealed that Appellee knew that cave-in of the trench was likely and that anyone in the trench at the time of the cave-in would be seriously injured or even killed as a result. Furthermore, testimony disclosed that Appellee had knowl*21edge of specific risk factors that greatly increased the likelihood of a cave-in: 1) an exposed gas line, 2) vibrations from an adjacent highway, and 3) unstable soil. Even with all of these known risks and probabilities of death or serious injury, Appellee ordered the decedent to work in the trench. The evidence also showed that Appellee failed to report the decedent’s death in a timely manner, even though it knew that the death was the result of its actions.

Upon review of a JNOV motion, the court must “consider the evidence in a light most favorable to the party opposing the motion and to give that party every reasonable inference that can be drawn from the record.”2 Additionally, the motion should not be granted “unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable [persons] could differ.”3 It is erroneous to declare that the death of Mr. Moore was caused by Appellee’s omissions, because the decedent’s death was the direct result of Appellee’s deliberate and intentional act of ordering him to work in death-probable conditions. Moreover, the jury was entitled to infer intent based upon Appellee’s actions following the incident. Its failure to report the decedent’s death and filling the trench subsequent to the removal of the body, Appellee impeded or prevented inspectors from fully investigating the incident. The evidence and allowable inferences were sufficient to create a material issue of fact as to whether Appellants met their burden of proving deliberate intent to cause death.

Kentucky is not alone in having an exception to the exclusive remedy provision of the Workers’ Compensation Act and allowing recovery for injuries as a result of intentional or deliberate actions by the employer. Some other jurisdictions use a substantial certainty test. The majority opinion relies on Dunleavy v. Yates Constr. Co.4 for the proposition that Environmental’s actions did not meet the substantial certainty test.

In Dunleavy, the North Carolina Court of Appeals held that summary judgment granted by the trial court to the defendants was proper, because the plaintiff had failed to produce sufficient evidence to support a finding under the exception in Woodson v. Rowland,5 In Dunleavy, the trench did not exceed five feet deep in all areas of the trench. For this reason, the company did not supply a trench box. In spite of what appeared to be stable soil, there was a partial cave-in and an employee was killed. The court distinguished these facts from the situation in Woodson where the high court of North Carolina recognized a narrow exception based on egregious facts. The facts included several safety citations, showed required work in a fourteen-foot deep trench, and showed the failure to provide any safety precautions. The Supreme Court of North Carolina recently described the Woodson exception as one that “applies only in the most egregious cases of employer misconduct” and where “there is uncontroverted evidence of the employer’s intentional misconduct and where such misconduct is substantially certain to lead to the employee’s serious injury or death.”6

*22We hold that when an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury of death to employees and an employee is injured or killed by that misconduct, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer. Such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the Act.

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This discussion in Pleasant [v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985)] makes clear that an actual intent to cause injury is not a necessary element of an intentional tort generally, nor is it required for intentional tort claims based on work-related injuries.7

The facts of the present case are disturbingly similar to those in Woodson v. Rowland,8 Here the employer knew that the trench depth required safety precautions due to the likelihood of cave-in, but the employer deliberately did not make available or use a trench box. Rather the employer left all safety equipment behind instead of taking it to the work site. As in the Woodson case, the deceased employee was forced to work under manifestly unsafe conditions. Further, it appears from the testimony and other evidence that it was substantially certain that a serious injury or death would occur as a result of the actions by Environmental.

KRS 342.610(4) allows recovery outside of the exclusive remedy provision of the Workers’ Compensation Act upon a showing of intent. The legislature has not eliminated liability when employers act egregiously and cause the death or serious injury of employees. But, this Court has effectively immunized employers from payment of damages despite egregious behavior by a draconian construction of the statute. Instead of analyzing this case as a civil action for damages and allowing the jury to draw proper inferences, the majority has held Appellants to a standard that would be appropriate for a homicide prosecution.

For the reasons stated herein, I would reverse the trial court’s grant of JNOV and reinstate the jury verdict.

GRAVES and STUMBO, JJ., join this dissenting opinion.