dissenting.
I dissent.
*705The majority affirms the punitive damage judgment even though it holds the Armstrong1 “clear and convincing” evidence rule applies to pure tort punitive damage cases and recognizes the rule has retrospective application under Don Medow Motors, Inc. v. Grauman, (1983) Ind.App., 446 N.E.2d 651. Contrary to the majority’s affirmance, Grauman mandates at least a reversal for a new trial on the issue of punitive damages.
As succinctly stated by Judge Staton in Grauman:
“[Tjhere is substantial evidence of probative value from which the jury could have found that Grauman established by clear and convincing proof that punitive damages were recoverable. However, we can not affirm the award of punitive damages because to do so would usurp the function of the trier of fact to weigh the evidence under the standard of clear and convincing proof.” (citation omitted)
446 N.E.2d at 655.
Furthermore, I vote to reverse the punitive damage judgment with instructions to enter judgment thereon in favor of Orkin.
It is the position of both Orkin and Traí-nas that willful and wanton tortious misconduct support an award of punitive damages. Assuming, arguendo, their position is correct,2 nevertheless, as a matter of law, the evidence is insufficient to support an award of punitive damages under the standard of preponderance of the evidence, let alone under the standard of clear and convincing proof.
Insofar as the issue involves Orkin’s conduct in hiring Coleman as an employee I agree with the majority’s conclusion Or-kin’s conduct failed to rise to the level of willful and wanton misconduct. However, I disagree with the majority’s conclusion Orkin’s conduct in failing to discharge Coleman upon discovering the pen gun or retaining him in its employ without “giving him positive training or furnishing him nonlethal instrumentalities with which to deal with large dogs” rises to the level of willful and wanton misconduct. Majority opinion at 703.
Willful and wanton conduct is described by our supreme court in Conder v. Hull Lift Truck, Inc., (1982) Ind., 435 N.E.2d 10 as requiring knowledge of an impending danger or consciousness of a course of misconduct calculated to result in probable injury and the actor’s indifference to the consequences of his conduct. The Condor court stresses the probability or likelihood of injury differentiates negligent conduct from willful and wanton misconduct.
The evidence in this case, construed most favorably to the judgment, leads only to the conclusion Orkin did not willfully and wantonly fail to discharge the duty it owed Traina. When Orkin personnel became aware of Coleman’s possession of the illegal weapon he was “strongly told not to carry the weapon, it was against company policy. Coleman agreed not to carry the weapon, saying he understood why he should not.” Majority opinion at 697. In addition, at that time, Coleman was again told how to conduct himself around a dog.
Conceding3 Orkin’s conduct was negligent, a reasonable fact finder could not conclude this conduct was “of such a nature that under the known existing conditions injury will probably result therefrom.” Mazza v. Kelly, (1970) 147 Ind.App. 33, 258 N.E.2d 171, 173-74. Rather, the evidence is totally consistent with the hypothesis that Orkin’s tortious conduct was the result of an honest error of judgment or some other such noniniquitous human failing. As such, it does not and can not support an award of punitive damages. Travelers Indemnity Co. v. Armstrong, (1982) Ind., 442 N.E.2d 349, 362.
*706Therefore, I vote to reverse the punitive damages judgment with instructions to enter judgment therein in favor of Orkin. Accordingly, I must also address Traínas' asserted cross-error.
For cross-error Traínas’ asserted error is the trial court’s refusal of their tendered final instruction no. 9. Specifically, they argue error in the trial court’s failure to instruct the jury that: (1) Charles could recover “the loss of enjoyment of his life experienced since the injury, and reasonably certain to be experienced in the future as a result of the injuries,”4 (2) Michelle’s loss of consortium damages “may not be susceptible of direct proof, nevertheless, when the facts of such loss are shown by a fair preponderance of the evidence the assessment of the amount of damages must be determined by you in the exercise of your sound judgment and discretion”5 and (3) Michelle’s damages may be assessed “at such sum that you believe and find in your judgment from a preponderance of the evidence ... will fairly and adequately compensate her ... (lost consortium) as a proximate result of the wrongful conduct ... charged ... and ... proven by a fair preponderance of the evidence.”6
There is no error because the trial court otherwise adequately instructed the jury. Among other factors, the jury was advised it could consider the nature, extent and permanency of Charles’s injuries, his physical pain and mental suffering, past and future, his disfigurement and his lost earnings and lost or impaired earning capacity. “Loss of enjoyment of life” is an aspect of or reflected in each and every of the foregoing considerations.
Similarly, the claimed omissions as to Michelle’s damage were adequately covered by the trial court’s instructions otherwise given to the jury. In the event it found liability, the jury was advised it “must” determine the amount of money which would “fairly” compensate her for her damages resulting from Orkin’s negligence and further it should determine the amount from a consideration of the evidence relating to damages. The term “fairly” is sufficient without the use of the further term “adequately”. The necessity, if any, of direct proof is an appellate principle used in the review of a judgment. See Hooper v. Preuss, (1941) 109 Ind.App. 638, 37 N.E.2d 687.
Because there is no error in refusing to give a tendered instruction if it is otherwise adequately covered, there is no merit to Traínas’ asserted cross-error. Dahlberg v. Ogle, (1978) 268 Ind. 30, 373 N.E.2d 159.
I vote to reverse the punitive damages judgment and remand this cause to the trial court with instructions to enter judgment thereon in favor of Orkin.
. Travelers Indemnity Co. v. Armstrong, (1982) Ind., 442 N.E.2d 349.
. For a full discussion of the quality of tortious conduct necessary to support a punitive damage award the reader is referred to Miller Pipeline Corporation v. Broeker, 460 N.E.2d 177 (Ind.App.1984).
.Orkin does not appeal the judgment for compensatory damages.
. Plaintiffs tendered final instruction no. 9, Record at 598.
. Id. at 600-01.
. Id. at 601.