The family of a roofer who fell 33 feet to his death in 2016 can’t sue the employer because the employer did not know with certainty that disregarding its own safety policies and federal workplace safety regulations would result in an accident, the Supreme Court of South Dakota said on Wednesday.

Although the death of Justin Althoff in 2016 was “tragic,” the high court said the estate at best established only that Pro-Tec Roofing Inc. consciously disregarded a known risk or was negligent, and that’s not sufficient to escape the exclusive remedy of workers compensation, according to Lynn Althoff v. Pro-Tec Roofing Inc., filed in Pierre.

“Pro-Tec’s knowledge that a failure to strictly follow OSHA requirements or its own safety policies could result in a fall does not alone establish a material issue of fact in a dispute on the question (of) whether Pro-Tec committed an intentional act., i.e., that Pro-Tec knew that a fall was substantially certain to occur because of its conduct,” the court wrote.

Pro-Tec did not provide employees with safety harnesses but instead used a warning line system to mark the edge of the building. However, Pro-Tec did not follow standards established by the Occupational Safety and Health Administration for placing warning lines. And the company did not designate a person to monitor those working around the warning lines as required by OSHA.

Pro-Tec reportedly claimed it operated on the belief “that it was every employee’s responsibility to watch out for each other.”

OSHA fined Pro-Tec $77,000 for violations that included not training employees on fall hazards and not using a proper fall prevention system. OSHA designated Pro-Tec’s failure to properly set up its warning line and its failure to dedicate a safety monitor as “willful” violations.

OSHA had previously cited Pro-Tec for fall protection lapses and the estate argued that company was clearly aware that it was required to take steps to protect its workers from falling off of roofs, and its failure to do so meant that a serious injury or death “was absolutely certain.”

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