10/19/1988 App for WOE / Disposed GRANTED 01/25/1989 Supreme Court opinion issued CARV/RMTC
This is an appeal from a summary judgment.
We affirm.
This is a personal injury suit for an intentional tort. The appellant is the spouse of Juan Rodriguez, who was injured in an accident that occurred while he was employed by the appellee, Naylor Industries. Summary judgment evidence showed that Cameron, one of Rodriguez' supervisors, told Rodriguez to drive a truck from Rockdale *Page 702 to Port Lavaca, and then to Corpus Christi.
The truck had several tires that were in shabby condition. In particular, they lacked treads and were so cracked and split that the inner tube was visible in one of them. Rodriguez examined the truck's tires and commented to Cameron on their appearance. Cameron responded, "You damn Mexicans, all you do is just bitch. . . . That truck has to go to Port Lavaca and then to Corpus Monday morning. . . . Either take it or walk."
As Rodriguez drove to Port Lavaca, one of the front tires exploded. Rodriguez asked Wallace, another supervisor, to get a spare tire from Houston. Wallace advised Rodriguez, instead, to rotate one of the back tires forward as a replacement.
Near Victoria, a second tire exploded, causing the truck to flip.1 Rodriguez survived and alleged that he was injured so severely that he was thereafter incapable of maintaining marital relations with his wife. Rodriguez testified (by deposition) that Cameron instructed him not to tell anyone about the truck's condition and the accident.
As far as claims of negligence and gross negligence are concerned, Rodriguez is limited to the exclusive remedy provided by Texas' Worker's Compensation Act ("the Act"). Tex.Rev.Civ.Stat.Ann. art. 8306, sec. 3(a) (Vernon Supp. 1988);Reed Tool Co. v. Copelin, 610 S.W.2d 736, 739 (Tex. 1985). The Act, however, does not bar an employee from suing his employer upon a claim of intentional tort. Massey v.Armco Steel Co., 652 S.W.2d 932, 933 (Tex. 1983).
In the instant case, the appellant alone seeks damages for loss of consortium, a wife's claim for loss of consortium being her separate property. Reed Tool Co. v. Copelin, 610 S.W.2d at 738. However, because a wife's cause of action for loss of consortium arising from an injury to her husband is derivative of her husband's suit, the appellant is barred from suing the appellee unless she can show that her husband's injury was the result of an intentional tort. Reed ToolCo. v. Copelin, 610 S.W.2d at 739.
The appellee won a summary judgment based upon the argument that the appellant failed, as a matter of law, to plead an intentional injury or to demonstrate an intentional injury by competent summary judgment evidence. The appellant's sole argument in support of her claim of intentional tort was, and remains, that Rodriguez was forced by Wallace to drive the truck in its dangerous condition and that Wallace told Rodriguez that "his very job depended on it."
The record contains no evidence that Wallace made any statement remotely similar to that which the appellant ascribes to him. In fact, the appellant failed to provide an affidavit from Rodriguez stating that anyone told him his job required him to drive the truck in its dangerous condition.
To the contrary, the appellee included deposition testimony by Rodriguez himself that Wallace never spoke harshly to him and never threatened him about his job. Indeed, the appellee points to Rodriguez' testimony that when he told Wallace that he was not going to drive the truck on the shoulder of the road because of the uneven condition of the shoulder, which might cause another tire to explode, Wallace told him to do whatever he thought was best. In short, the record does not reflect any threat made by an employee of the appellee to Rodriguez concerning his job.
The record reveals only three statements made by employees of the appellee that even approach the level of extremeness required to support a finding of intent: (1) Cameron's insensitive response to Rodriguez' concern about the tires; (2) Wallace's negative response to Rodriguez' suggestion that they seek a spare tire from Houston; and (3) Cameron's instruction to Rodriguez to "keep quiet" about the accident. Other than these statements, the only other possible evidence of the appellee's intent to injure *Page 703 its employee is in the form an affidavit of an expert that the appellant attached to her reply to the appellee's motion for summary judgment. The affiant stated that, in the affiant's expert opinion, a supervisor would know with substantial certainty that the condition of the truck would result in an explosion of the tires.
Neither the affidavit nor any of the above-listed statements are summary judgment evidence of intent to cause injury. These statements are evidence tending to show negligence or gross negligence. The rule in Texas is that "an injury caused by willful negligence or willful gross negligence is not an intentional injury [such as is] necessary to avoid the effect of the Worker's Compensation Act." Castleberry v. GoolsbyBldg. Corp., 617 S.W.2d 665, 666 (Tex. 1981). Intentional injury requires a specific intent to inflict injury.Reed Tool Co. v. Copelin, 689 S.W.2d 404, 407 (Tex. 1985). The Texas Supreme Court has adopted the definition of "intent" provided by Restatement (Second) of Torts section 8A (1965), "the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." Id. at 406.
For example, the intentional failure to furnish a safe place to work does not rise to the level of intentional injury except when the employer believes his conduct is substantially certain to cause the injury involved. Id. at 407; butsee Bennight v. Western Auto Supply Co., 670 S.W.2d 373 (Tex.App. — Austin 1984, writ ref'd n.r.e.). By analogy, we find that the intentional failure to provide an employee with safe transportation does not rise to the level of intentional tort except when the employer believes his conduct is substantially certain to cause injury.
Although Cameron's and Wallace's comments might create a fact issue as to the existence of negligence, or even gross negligence, the appellant has failed to raise a question of fact that the appellee knew with substantial certainty that Rodriguez would be injured. See at 408. The expert's testimony was not sufficient to establish the specific intent required by Reed Tool Co. v. Copelin, 689 S.W.2d at 404, because knowledge that a tire is substantially certain to explode is not the equivalent of knowledge or substantial certainty that a defective tire will injure an employee.
The judgment is affirmed.
LEVY, J., dissents.