dissenting.
I cannot agree that the summary judgment proof raises a genuine issue of fact, material to gross negligence. I therefore dissent.
To prove that Pool Company was grossly negligent, appellants must establish that Pool Company lacked “... that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.” (Emphasis supplied.) Burk Royalty Company v. Walls, 616 S.W.2d 911, 920 (Tex.1981). Further, “[t]he 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.” (Emphasis supplied.) Burk at 922. The question I pose is: When the uncontested summary judgment proof establishes that Pool Company was not conscious of, did not know of, and was not aware of the peril that resulted in the death of the employees, is it, then, not entitled to summary judgment relief?
A brief understanding of the Pool Company business is helpful in our analysis. The Pool Company serviced over 500 oil wells in the immediate area of the accident. Most of these wells were owned by Shell Oil Company including the one located at the site of the accident. The wells were often serviced on an irregular basis, when specific need arose, and Shell and the other oil well owners were permitted to communicate directly with the service crews to instruct them to proceed to a given oil well. Each service truck was equipped with a two-way radio, which enabled the crew to relate their location to Pool Company Management — often after the crew had “rigged up.” This same radio could be used to advise management of any problems at the well site. Although the summary judgment proof is silent regarding how the three crew members were notified to go to the well site, it is undisputed that they arrived at *374the site, that they failed to notify Pool Company of an overhead power line, that they raised the derrick and that they were electrocuted. Their relatives now claim Pool Company was grossly negligent in causing the employee’s deaths, and majority agrees that there is a material fact issue pertaining thereto.
The majority, though it discusses a fine imposed by OSHA which I would hold to be immaterial, bases its holding primarily on the deposition testimony of Bobby Blundell. This testimony, excerpted by majority, was plucked from a fifty-page deposition which is otherwise replete with assertions by Blundell that most of the power lines were underground, and that he was unaware of any danger before the accident. In testimony not quoted by the majority, Blundell was asked what he meant by “near” when he previously testified that “... every one of them [power lines] in the Denver City area is near.”
A: (By Blundell) What I meant by near is it’s got to be close by but its its not a dangerous close by, there’s enough
Q: Okay.
A: —enough leeway. I couldn’t put it down into specific yards of feet or anything, but—
Q: Have you seen any of your employees raising a rig close enough to lines where it was dangerous.
A: No. (Emphasis supplied.)
A reasonable and fair interpretation of his testimony is that “near,” as he meant it, was not near enough to be a danger to raised derricks. Thus, his explanation of his words leaves no discrepancy to resolve in the appellant’s favor.
Further uncontested summary judgment proof establishes that Pool Company not only enacted Rule 29 as part of an employee safety program, but also employed a safety director who held periodic meetings to promote safety. It is undisputed that Pool Company was not conscious of the employees’ peril, and certainly this undisputed proof of its safety program demonstrates a lack of “indifference to the right or welfare” of the employees.
Finally, I would hold that any evidence of Pool Company’s “customarily” failing to de-energize overhead lines is of absolutely no value unless there is also evidence that Pool Company knew of a need to de-energize, followed by their failure to do so. There is not even a hint of such proof in the record.
Because the summary judgment record affirmatively establishes that the movant, Pool Company, was not conscious or aware of the dangerous condition at the site of the accident, it then becomes the burden of the non-movants, appellants, to come forward with summary judgment proof that establishes a material fact issue in dispute, or some other basis for recovery. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). Because appellants failed to meet this burden, I would hold that Pool Company was properly awarded summary judgment. I therefore disagree with the majority and would accordingly affirm.
CARVER, J., concurs in the dissent.