Louisiana-Pacific Corp. v. Andrade

WALKER, Chief Justice,

dissenting.

I respectfully file this dissent to the majority opinion, believing, under law and fact, that a rendition on the question of gross negligence is the proper holding. I would hold that the trial court erred in failing to grant Louisiana-Pacific and Kirby’s motion for directed verdict and motion for judgment notwithstanding the verdict.

A no evidence point must be sustained if the court finds a complete absence of evidence to support the verdict or only a scintilla of evidence exists to support it. McKnight v. Hill & Hill Exterminators, 689 S.W.2d 206 (Tex.1985). Where we conclude that the evidence is legally insufficient to support the jury verdict, we must render for appellant. Tex. R.App. P. 81(c); Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176 (Tex.1986).

I part ways with the majority in its analysis of the legal sufficiency of the evidence to sustain what is referred to as the “subjective” prong of the jury’s gross negligence finding. The two-prong concept of gross negligence is explained in Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 21 (Tex.1994), as follows:

Gross negligence thus involves two components: (1) the defendant’s act or omission, and (2) the defendant’s mental state. As defined, the act or omission element must involve behavior that endangers the rights, safety, or welfare of the person affected, [footnote omitted] Tex. Civ. Prac. & Rem.Code Ann. § 41.001(5) (Vernon Supp.1994). Gross negligence, then, differs from ordinary negligence with respect both elements — the defendant must be “consciously indifferent” and his or her conduct must “create an extreme degree of risk.” Williams [v. Steves Indus., Inc.], 699 S.W.2d [570,] at 573 [(Tex.1985)]; see also Wal-Mart [Stores Inc. v. Alexander], 868 S.W.2d [322,] at 326 [(Tex.1993)] (“We reaffirm that a gross negligence finding may be upheld on appeal only if there is [legally sufficient] evidence that a) the defendant’s conduct created an extreme risk of harm, and b) the defendant was aware of the extreme risk.”)
*953As we have recently reiterated, the test for gross negligence “contains both an objective and a subjective component.” Wal-Mart, 868 S.W.2d at 3261 Subjectively, the defendant must have actual awareness of the extreme risk created by his or her conduct. Id. Objectively, the defendant’s conduct must involve an “extreme degree of risk,” a threshold significantly higher than the objective “reasonable person” test for negligence. Id.

The Moriel Court summarized the “subjective component” by requiring proof that the actor have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. Id. at 23.

In the instant case, the majority correctly observes that Moriel’s subjective prong may be proven by direct or circumstantial evidence. See Moriel, 879 S.W.2d at 23. The majority then summarizes the testimony from a number of witnesses regarding whether or not the electrified crane was locked out on the day of, or several days prior to, the accident. The majority then comes to the following conclusion:

There was clearly conflicting evidence. There was evidence the crane was locked out but, in fact, the crane was not locked out. The jury could determine either the crane was unlocked or that it was never locked out to begin with. Controverted trial issues are properly within the province of a jury if reasonable minds could differ as to the truth of the controlling facts. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). Whether the crane was never locked out or was subsequently unlocked, Kirby employees would have been aware the crane was energized and hence aware of the risk. We find the second prong of Moriel is satisfied.

I do not take issue with the majority’s factual summary of the events surrounding the accident. It clearly cannot be disputed that the crane was energized when Andrade came in contact with it. This means that at some point the crane was unlocked by someone, energized, and then not de-energized and re-locked. I have no problem with the inference from the evidence that a Kirby employee must have been responsible for unlocking, energizing, and failing to re-lock the crane. However, the contradictions notwithstanding, all of the testimony indicated that the Kirby employees involved in the chain of the lock-out process actually, subjectively believed that they personally had either locked-out the crane, or that their personal subjective recollection of various events led them to believe that the crane had been locked-out by someone prior to Andrade beginning work on the day in question. An-drade’s trial counsel read into the record the fact that there were warning signs in the area of the crane rails stating, “Danger, High Voltage,” and that Ollie Pike of Kirby walked through the area with Andrade’s supervisor and discussed the overhead crane. The clear import of the evidence was that everyone, Kirby personnel as well as employees of Patton Asbestos, was aware of the existence of the potential risk the crane posed in the event it was energized, but as far as both Kirby and Patton Asbestos personnel were concerned, the inference was that there was no risk in working near a de-energized crane.

What is further lacking from the evidence, even inferentially, is proof that any Kirby personnel were consciously indifferent to the risk of electrocution if the crane was energized. So long as the evidence reflects that Kirby personnel were attentive to the risk, admittedly to a greater or a lesser degree, how can it be said that they acted with conscious indifference to the safety or welfare of Andrade? I believe that it is not enough to find, as does the majority, the inference of knowledge on Kirby’s part without also finding at least an inference of conscious indifference. Again, all of the testimony indicates “actual, subjective awareness” that the crane was de-energized at the time Andrade began working. Even a visual check of the breaker panel by Donald Her-rin, a Patton Asbestos supervisor, on the morning of the accident indicated that the disconnect switch appeared to be in the off position. Under all of the facts and circumstances in the record, I cannot say that a fact issue has been raised that Kirby had either the “actual, subjective awareness of the risk involved,” or the conscious indifference to *954any such nsk required to sustain the gross negligence finding. Thus, my dissent.