DISSENTING OPINION
GONZALEZ, Justice,dissenting.
I respectfully dissent. In my opinion, there is no evidence to support an award of exemplary damages and attorney’s fees.
The parties sharply disagree as to what the record shows. Appellants assert that the record shows that appellee’s shotgun could fire while on safety with no engagement of the trigger only because that particular gun had a manufacturing defect. Appellee asserts that the record shows that his gun, and other shotguns of the same design, could fire while on safety without engaging the trigger with or without a manufacturing defect. Therefore, a more detailed explanation of the contentions of the parties and what transpired in the trial court is necessary in order to properly evaluate appellants’ points of error.
In September 1979, appellee purchased the shotgun from one of the Oshman’s sporting goods stores in Houston. The shotgun was manufactured in Spain by Ar-mas Erbi S. Coop, and was marketed under the brand name “Star Gauge” in this country by International Armament Corporation (Interarms), a Delaware Corporation. In November 1979, appellee was severely injured in the leg in Marlin, Texas. This happened when the shotgun was accidently discharged as his father-in-law closed the breach while it was on safety.
Appellee filed suit against Interarms, Ar-mas Erbi and Oshman’s, alleging, among several theories of recovery, strict liability in tort for which appellee specifically pled that “The shotgun was unreasonably dangerous due to the defective design and/or manufacture of its cocking and safety mechanism and further defective due to the defective manufacture of the left sear and left hammer, all of which were, collectively or singularly, a producing, or alternatively, a proximate cause of the damages suffered and sustained by the plaintiff.” Appellee also alleged liability under the Deceptive Trade Practices Act.1
*421Though served through the Secretary of State’s Office, Armas Erbi did not file an answer. Oshman’s filed a general denial, and further answered that appellee was negligent in the use of the shotgun. Inte-rarms also filed a general denial and also answered that appellee was negligent: (1) by failing to return his shotgun to Inte-rarms for repairs after discovering that it was malfunctioning; (2) by failing to have the gun examined or repaired by a gunsmith after discovering that it was malfunctioning; and, (3) by continuing to use his shotgun after discovering that it was malfunctioning. Interarms also filed a cross-claim against Armas Erbi for indemnity and contribution.
After the jury was selected, appellee filed a trial amendment and alleged: (1) that Interarms knew that the shotgun could fire while on safety without engaging the trigger; (2) that it failed to warn potential users of this fact; and, (3) that this was an unconscionable action. After the jury argument, appellee filed another trial amendment alleging that the failure of Interarms to warn of the danger that the shotgun could fire while on safety and without engaging the trigger was gross negligence.
Before submission of the case to the jury, appellee abandoned its claim of a manufacturing defect, and the only product defect issues submitted to the jury were pertinent to claims of a defective design and a marketing defect (failure to warn).
In response to the special issues submitted, the jury found:
1. That the shotgun was defectively designed at the time it was manufactured by Armas Erbi;
2. That the shotgun was defective at the time it left the possession of Inte-rarms;
3. That such defect was a producing cause of the occurrence in question;
4. That the shotgun supplied by Inte-rarms and Oshman’s was unfit for the ordinary purposes for which such shotguns are used;
5. That said unfit condition was a producing cause of the occurrence in question;
6. That Interarms failed to give an adequate warning at the time it sold that shotgun of the danger that such shotgun would fire when on “safety” and with no engagement of the trigger;
7. That such failure to warn by Inte-rarms rendered that shotgun unreasonably dangerous as marketed;
8. That the failure of Interarms to warn of the danger was an unconscionable action;
9. That such failure was a producing cause of the occurrence in question;
10. That Interarms knowingly engaged in such unconscionable action;
11. That the failure of Interarms to adequately warn of the danger that the shotgun in question would fire on “safety” and with no engagement of the trigger constituted reckless, wanton and grossly negligent conduct;
12. That appellee was 33% negligent on the occurrence in question, and Inte-rarms was 67% negligent;
13. That such conduct by Interarms was a proximate cause of the occurrence in question;
14. That appellee should be awarded $234,053.00 actual damages, $45,000.00 attorney’s fees, $1,500,000.00 in exemplary damages against Interarms and $4,000,000.00 exemplary damages against Armas Erbi.
The trial court granted appellee’s motion to disregard the jury findings as to his negligence and rendered a $1,799,053.00 judgment for appellee against appellants.2
*422On appeal, appellants do not challenge the judgment as to the award of actual damages but by legal and factual insufficiency complaints, appellants do challenge the way the case was submitted to the jury, the jury responses and the award of exemplary damages and attorney’s fees.
EXEMPLARY DAMAGES
Guns are inherently dangerous. See 94 C.J.S. Weapons § 28(a). It is obvious to most adults that they should be handled with great caution. The record shows that both appellee and his father-in-law were well aware of the potential danger of shotguns and prior to its use on the occurrence in question, both were aware that the shotgun had a malfunction. In this connection, there is no evidence that the Star Gauge shotgun is any more dangerous when compared to other models. It is therefore incredible to me that the majority has based liability for punitive damages on the basis that the supplier failed to warn the user of the danger of accidental discharge, particularly when there was no evidence that the Star Gauge models in general had a propensity to fire while on safety with no one engaging the trigger. See Restatement (Second) of Torts, Sec. 402, Comment j. (1965); Blackwell Burner Co. v. Cerda, 644 S.W.2d 512 (Tex.App.—San Antonio 1982, writ ref'd n.r.e.); Dougherty v. Santa Fe Marine Inc., 698 F.2d 232 (5th Cir. 1983).
The common thread in the cases from all jurisdictions that have allowed punitive damages in products liability cases is that liability for exemplary damages depends almost exclusively on the degree of the defendant’s prior knowledge of the specific defect of which complaint was made by the plaintiff.3 The recklessness must be close to criminal and must be clearly established, and punitive damages will not be imposed unless it is shown the defendant authorized, participated in, consented to, or, after discovery, ratified the conduct giving rise to the damages. The evidence need manifest a deliberate disregard for human welfare.
In the case at bar, the record shows that before Interarms marketed Star Gauge shotguns in this country, they completely inspected and test-fired some shotguns of the same model. Furthermore, thereafter, two out of every twenty-five shotguns were similarly broken down and inspected. Many of the guns were rejected for cosmetic reasons, but none were rejected for manufacturing defects. Therefore, I disagree with the majority’s conclusion that the record supports a jury finding that Inte-rarms was completely indifferent to appel-lee’s rights by consciously disregarding his rights, welfare and safety. This is particularly true since there is no evidence that Interarms was aware or should have been aware of any special hazards not ordinarily connected with shotguns. For these reasons, I believe that the majority has too broadly read our Supreme Court’s holding in Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex.1981), (which is not a strict liability in tort case). While I agree that the evidence of gross negligence may come from all of the surrounding facts, circumstances and conditions, Id. at 922, there must also be evidence that the conduct was knowingly committed by the defendant. “The plaintiff must show that the defendant was consciously, i.e. knowingly, indifferent to his rights, welfare and safety.” Id. (Emphasis added.)
As the majority points out in its opinion, there is really very little evidence in the record even to establish a defective design. At most, the record shows that Star Gauge shotguns that are improperly manufactured may accidentally discharge. There is absolutely no evidence that appellants had any knowledge of said defect, and I do not believe that any such knowledge is implied in any of Interarms’ actions, or should be implied from Interarms’ inactions.
There are two recent decisions in this State wherein exemplary damages were awarded in a products liability case. In comparing these cases with the case at bar, *423I find appellee’s evidence of gross negligence totally insufficient. In Rawlings Sporting Goods Co., Inc. v. Daniels, 619 S.W.2d 435, 440 (Tex.Civ.App—Waco 1981, writ ref’d n.r.e.), the evidence clearly showed that the defendant knew of the dangerous propensity of its product from the happening of the specific occurrence of which the plaintiff complained and yet took no steps to correct the defect or warn the plaintiff. Likewise, in Ford Motor Co. v. Nowak, 638 S.W.2d 582, 593-594 (Tex.App.—Corpus Christi 1982, writ ref’d n.r.e.), the basis for the majority opinion was that the evidence clearly showed that the defendant had specific prior knowledge of the defect in question from its own test results and from occurrences of the exact nature of which the plaintiff complained, and that the record established that the defendant made a conscious decision not to correct the defect or warn the user of the potential danger.
Returning to the case at bar, the record only reflects that this particular design has been in existence for 104 years and has been used by manufacturers other than Armas Erbi, the manufacturer of the weapon in question. There is no evidence in the record that any other Star Gauge shotguns had ever fired while on safety without engaging the trigger. There is no evidence of any test results which indicate this propensity, nor is there any evidence of one single previous occurrence similar to the one which caused the appellee’s injuries.4 There is no evidence of any of the factors listed in Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979), and reiterated in Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 62 (Tex.1983) with which the jury was to weigh the utility of the product verses the risk involved in its use. There was no evidence that accidental discharges are less likely in any other design. In other words, there was no evidence of a “fix”, that is that an alternative design existed that was mechanically and economically feasible and that such a safety (one which blocks the hammer rather than the sear) would in fact prevent more accidental discharges than the safety in the Star Gauge shotguns. Simply demonstrating that an alternative design is available (one that blocks the hammer) is not sufficient to establish that an existing design is defective. Daberko v. Heil Co., 681 F.2d 445 (5th Cir. 1982).
Simply stated, there is no evidence of the aggravated element which raises appellants’ conduct to gross negligence; that is, that appellants knew or should have known that this weapon could fire, in the manner in which it discharged and that appellants consciously and deliberately chose not to warn appellee of the known danger. Absent this evidence, there is no evidence to support the jury’s finding that appellants’ conduct was “reckless, wanton and grossly negligent” and that appellants’ conduct was an “unconscionable action.”
I am therefore of the opinion that the judgment of the trial court should be reversed and rendered that appellee recover only his actual damages.
. The suit was brought in Matagorda County on the basis that Oshman’s had a retail outlet there. Oshman’s filed a plea of privilege to be sued in Harris County and thereafter filed a motion for *421substitution of counsel. The trial court overruled the plea of privilege on the basis that Oshman’s waived its plea of privilege by invoking the jurisdiction of the court, that is, by not making such motion subject to the plea of privilege.
. This case was tried prior to the Supreme Court decision in Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984).
. See generally, Annot., 13 A.L.R. 4th 52 (1982).
. In special issues numbers 9, 10, and 14, the trial court assumed a controverted fact when it spoke “of the danger that such gun could fire on ‘safety’ with no engagement of the triggers." The court in effect told the jury that it believed that such "danger” existed in all shotguns of a similar design, and that such "danger” was known to Interarms.