dissenting.
I am astounded that the court has concluded as a matter of law that Seven-Up was not an appropriate intermediary through which Alcoa could have discharged its duty to warn ultimate consumers. I am absolutely flabbergasted that the court has effectively held that under these facts Alcoa was grossly negligent as a matter of law. To the best of my knowledge, this is the first time in the history of American *141jurisprudence that a court has held that a jury could not disbelieve a plaintiff’s case as to gross negligence when the issue is disputed, and that a court should determine this issue as a matter of law. The possible consequences of this unprecedented holding boggle the mind. I would remand this cause {“Aim IF’) to the trial court for a new trial on the issues of both negligence and gross negligence.
Facts
James Aim suffered a severe eye injury when an aluminum bottle cap exploded off of a Seven-Up bottle. Aim had purchased the bottle from a Lewis & Coker supermarket, which in turn had purchased the soft drink from a bottler, JFW Enterprises. Aluminum Company of America (“Alcoa”) designed and manufactured the equipment that was used to cap the carbonated soft drink bottle. JFW bottled the beverage for Seven-Up under a franchise agreement. Under its trademark rights and franchise agreement, Seven-Up controlled the labeling and any cautionary language on the bottle and cap. Alcoa had absolutely no control over the contents of the bottle or any aspect of the soft drink package which reached Aim.
Aim sued Lewis & Coker, JFW, and Alcoa under theories of strict liability, breach of warranty, and negligence. He settled with Lewis & Coker and JFW and entered into a Mary Carter agreement with JFW. The case proceeded to trial on Aim’s allegations that Alcoa was liable because it did not warn Aim of the dangers of explosive cap separation. Aim asserted at trial and on appeal that Seven-Up controlled the warning labels and that Alcoa could not satisfy its duty to warn the ultimate consumers by warning JFW because Alcoa had a duty to warn Seven-Up. Yet, when Alcoa presented evidence of this warning to Seven-Up, Aim objected that this testimony was irrelevant and self-serving. The trial court sustained the objection, but the evidence was admitted for other purposes.
The jury found against Alcoa on all submitted liability issues. The trial court disregarded the answers to special issues on strict liability, stating that strict liability did not apply to Alcoa. The court of appeals reversed the judgment, holding that the evidence of negligence was factually insufficient and that Alcoa had no duty to warn consumers. 687 S.W.2d 374. Aim brought forward only the negligence portion of the case for appeal.
Aim I
In Alm v. Aluminum Co. of America, 717 S.W.2d 588, 591-92 (Tex.1986) {“Aim /”), we held that Alcoa had a duty to warn the ultimate consumer of the dangers associated with bottle caps manufactured with a closure system which it designed, built, and sold. We further held that this duty to warn could be discharged by warning an intermediate user of the closure system if there were reasonable assurances that the warning would reach the ultimate consumer.1 Id. The court today seeks to avoid remanding the negligence portion of this case by asserting that Seven-Up “was not, as a matter of law, an appropriate intermediary through which Alcoa could have discharged its duty to warn the ultimate consumer.” Aim II, at 140. Arguably, under these facts, Seven-Up was a proper intermediary to warn, given our decision in Aim I.
Furthermore, we did not hold in Aim I, as the court today deceptively and erroneously maintains, that Alcoa's duty to warn the ultimate consumer could be satisfied by proof that “Alcoa’s intermediary, JFW, ‘was adequately trained and warned.’ ” Alm II, at 138 (emphasis added). Instead, we held that Alcoa could satisfy its duty to warn by proving “that its intermediary was adequately trained and warned.” Alm I, *142717 S.W.2d at 592 (emphasis added). We never mentioned JFW by name, nor does anything in the opinion suggest that it was the only appropriate intermediary. The court today in Aim II rewrites our opinion in Aim I to reach its desired result.
Under its franchise agreement with JFW, Seven-Up controlled the labeling on both the bottle and its cap. Accordingly, Seven-Up arguably was in the best position to warn the ultimate consumer of the danger of a bottle cap explosion. As such, Seven-Up should not be ruled out as a proper intermediary through which Alcoa could discharge its duty to warn. In fact, the passage from comment n to the Restatement (Second) of Torts § 388 (1965) cited by the court supports the conclusion that Seven-Up should not be excluded as a proper intermediary:
In all such cases the question may arise as to whether the person supplying the chattel is exercising that reasonable care, which he owes to those who are to use it, by informing the third person through whom the chattel is supplied of its actual character.
Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel. The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it.
(Emphasis added.) The purpose of the rule announced in Aim I is to insure that the ultimate consumer receive any warnings necessary to make the product in question safe, while recognizing the inherent difficulty of transmitting such warnings when the manufacturer is not in the direct chain of production.
Negligence
In the instant case, Alcoa could logically argue that an appropriate method of supplying the requisite information with reasonable assurance that it would reach the ultimate consumer was by communicating it to Seven-Up, which had control over the labeling of the bottle caps and bottles. The injury causing instrumentality was the bottle cap — not the closure system. The mere fact that JFW had control over the closure system did not give it the ability to transmit any warnings to Aim. The court’s reliance on the phrase “through whom the chattel is supplied” in comment n to the Restatement (Second) of Torts § 388 is misplaced in light of the language of the comment as a whole, as well as common sense.
At the trial of Aim I, Alcoa, unaware of our impending change of the law, did not obtain an instruction informing the jury that Alcoa’s duty to Aim could have been satisfied or discharged through a warning given to an intermediary. In light of the change in the law, an instruction of this nature should be given in order to insure a fair trial. See Costilla v. Aluminum Co. of America, 835 F.2d 578, 580 (5th Cir.1988) (holding that adoption of new rule in Aim I necessitated a remand for new trial). In the interest of justice, I would remand the negligence portion of this case for a new trial under the law as changed by Aim I. See L.M.B. Corp. v. Gurecky, 501 S.W.2d 300, 303 (Tex.1973) (remanding the cause to the trial court for a new trial in the interest of justice following a change in the law).
Gross Negligence
Furthermore, the gross negligence issue should be remanded for a new trial as well. The court of appeals made a determination that is constitutionally binding on this court by finding the evidence factually insufficient to support gross negligence. Tex.Const.Ann. art. V, § 6 (as amended in 1891); Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988); Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986). To circumvent the court of appeals decision, the court has taken the unprecedented step of finding gross negligence as a matter of law, thus denying Alcoa the right to a trial by jury on this the most basic of fact questions. As this court judiciously held in Burk Royalty Co. v. Walls, the leading case on gross negligence:
What lifts ordinary negligence into gross negligence is the mental attitude of the defendant; that is what justifies the *143penal nature of the imposition of exemplary damages. The plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare and safety. In other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrated that he didn’t care.
616 S.W.2d 911, 920 (Tex.1981) (emphasis in original); see also Williams v. Steves Industries, Inc., 699 S.W.2d 570, 573 (Tex. 1985) (conscious indifference denotes a decision to not care about the consequences of an act which may ultimately lead to harm).
After today, the court, not the jury, is empowered to determine, on the basis of plaintiffs proof alone, whether the defendant’s mental attitude is sufficiently “bad” to justify punitive as well as actual damages. In any case short of a confessed judgment, such a holding would be profoundly disturbing. - But in this case, where there clearly is some evidence that Alcoa attempted to warn of the dangerous propensities of the closure system, a holding of an entire want of care as a matter of law is an absolute travesty. Alcoa had a program for bottlers meant to demonstrate the hazards associated with misapplied caps and cap blowoff which included wall charts, slide shows, and other information from technical personnel. How can it be said that Alcoa “didn’t care” as a matter of law in the face of such evidence?
Henceforth, whenever five members of this court are displeased with a particular result, they can impose any result they desire, merely by holding that a party proved the necessary facts conclusively, i.e., as a matter of law. This result runs roughshod over the constitutional limitations on our jurisdiction and our concept of fairness to all parties.
For these reasons, I dissent.
PHILLIPS, C.J., and COOK and HECHT, JJ., join this opinion.. As Alcoa did not manufacture the injury-causing instrumentality — the bottle cap — the duty to warn that we imposed upon Alcoa was unprecedented. Prior to Aim I, there had never been a Texas case in which a duty to warn was imposed on a manufacturer that did not produce the injury-causing instrumentality. Thus, in Aim I, we announced a new rule for the jurisprudence of this state governing tort liability. See also Costilla v. Aluminum Co. of America, 826 F.2d 1444, 1448 (5th Cir.1987), vacated in part and remanded, 835 F.2d 578 (1988); Note, Alm v. Aluminum Co. of America: An Extension of Duty to Warn, 39 Baylor L.Rev. 339, 344-47 (1987).