concurring and dissenting.
I concur with all aspects of the majority’s opinion with the exception of Torring-toris tenth point of error and the appel-lees’ two cross-points.
The tenth point of error challenges the legal sufficiency of the gross negligence findings. The majority finds there is no evidence of the objective element of gross negligence. In Transportation Ins. Co. v. Monel, 879 S.W.2d 10, 21-23 (Tex.1994), the court stated:
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. Tex.Civ.PRAC. & Rem.Code ANN. § 41.001(5) (Vernon Supp.1994). Gross negligence, then, differs from ordinary negligence with respect to both elements — the defendant must be “consciously indifferent” and his or her conduct must “create an extreme degree of risk.” Williams, 699 S.W.2d at 573; see also Wal-Mart, 868 S.W.2d at 326 (“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.”).
As we have recently reiterated, the test for gross negligence “contains both an objective and a subjective component.” Wal-Mart, 868 S.W.2d at 326. 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. Extreme risk is a function of both the magnitude and the probability of the anticipated injury to the plaintiff. As we said in Wal-Mart, the “extreme risk” prong is not satisfied by a remote possibility of injury or even a high probability of minor harm, but rather “the likelihood of serious injury” to the plaintiff. Id. at 327. (emphasis omitted).
An act or omission that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent. Only if the defendant’s act or omission is unjustifiable and likely to cause serious harm can it be grossly negligent.
It should not be surprising, perhaps, that many efforts to analyze gross negligence findings confuse the defendant’s mental state with the nature of the defendant’s act or omission. The mental state involves awareness of the risk, and thus the two are interrelated. As Pros-ser and Keeton point out, most jurisdictions distinguishing gross from ordinary negligence have focused on either the difference in the defendant’s mental state or the difference in riskiness of the defendant’s act, but the two definitions have tended to merge and “take on the same meaning, of an aggravated form of negligence.... ” Prosser & Keeton § 34 at 214 (5th ed. 1984), cited in Williams, 699 S.W.2d at 572. But this is not so in Texas. Ours is “a hybrid definition, distinctive to this state ... combining] both of the traditional tests for gross negligence.” Williams, 699 S.W.2d at 572-73.
Williams also suggested that gross negligence could be proved if “under the surrounding circumstances a reasonable person would have realized that his conduct created an extreme degree of risk to the safety of others.” Id. at 573. This language is potentially misleading, however. It is true that the relative riskiness of the defendant’s action can be determined by an objective “extreme risk” test, but before a gross negligence finding can be sustained the evidence must show both that the act was likely to *525result in serious harm and that the defendant was consciously indifferent to the risk of harm. Wal-Mart, 868 S.W.2d at 326. The requirement of conscious indifference, which our law requires, is superfluous unless it requires proof that the defendant had actual subjective knowledge of an extreme risk of serious harm. Williams, therefore, should not be read to import the objective “reasonable person” standard for ordinary negligence into the distinctly different process of determining subjective mental state in gross negligence cases.
Recognizing the practical difficulty of producing direct evidence of conscious indifference short of the defendant’s admission, Williams quite reasonably stated that “the plaintiff need not prove the defendant’s subjective state of mind by direct evidence,” and authorized proof of this element by circumstantial evidence. Williams, 699 S.W.2d at 573 (“reaf-firm[ing][the] holding in Burk Royalty [Co. v. Walls7,” 616 S.W.2d [911] at 922). We hereby reaffirm our holding that the defendant’s subjective mental state can be proven by direct or circumstantial evidence.
Determining whether an act or omission involves extreme risk or peril requires an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight. In every negligence or gross negligence case, some injury has allegedly occurred. However, the magnitude of the injury may be entirely disproportionate to the riskiness of the behavior. For example, inadvertently dropping a wooden board into the metal hold of a ship may constitute negligence, but cannot be gross negligence. This is so even though the board, upon landing, triggers a Rube Goldberg chain reaction, eventually causing the whole ship to explode. See In re Polemis, [1921] 3 K.B. 560. If somebody has suffered grave injury, it may nevertheless be the case that the behavior which caused it, viewed prospectively and without the benefit of hindsight, created no great danger. In such a case, punitive damages are not appropriate. In summary, the definition of gross negligence includes two elements:
(1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.
There was testimony that the tail rotor drive shaft system provided directional control of the helicopter. Bell Helicopter, the manufacturer, issued an air worthiness directive concerning the -5 bearings to “prevent possible failure of a tail rotor driveshaft hanger bearing which could result in catastrophic failure of the tail rotor driveshaft and subsequent loss of control of the helicopter,.... ” A Torrington employee acknowledged he knew people were riding in helicopters with their bearings and knew that if the grease was bad the bearing might fail and it might leave widows and orphans. Clearly there is some evidence to satisfy both elements of the Moriel test. Therefore, I would overrule point of error ten.
The cross-points deal with the trial court’s remittitur of both the actual and punitive damages. The majority holds the appellees are estopped from raising the issue because they invited the error. The record does not support this conclusion. The trial judge signed a final judgment on August 15, 1996, reflecting the jury award. On September 9, defendants/appellants filed a motion for remittitur. On October 28, the judge entered an order suggesting a lump sum remittitur amount for each plaintiff/appellee. On October 29, the plaintiffs/appellees filed an acceptance of *526the remittitur. On October 30, the defendants/appellants filed their objection to the Order of October 28th. There were several objections, but the one pertaining to this issue was that the judge had ordered the damages reduced in a lump sum amount as to each plaintiff/appellee, while the jury had allocated damages among various elements. On November 13, defendants/appellants filed another motion for remitti-tur, this one addressing the October 28 Order and again asked the judge to specify which jury findings were excessive and to further reduce the amounts. On November 21, the plaintiffs/appellees again filed a remittitur in accordance with the October 28 order. They also filed a response to the objections which recognized the court’s remittitur should be specific as to the individual elements of damage and included suggestions as to how the lump sum amounts in the October 28 Order should be allocated among the various elements submitted to the jury. A hearing was held on November 25 regarding the remittitur issue. At that hearing counsel for the plaintiffs/appellees stated:
... not knowing what the court would do, I have filed and am prepared to accept remitttur; and I did it three different ways. I have three different orders. One is the original. If the Court disagreed with us, both of us, the original.
The second one is where the noneco-nomic damages are reduced; and the third one is where all of them, just proportionately, to get to that figure.
And in my response I am arguing for the noneconomic damages. They are smaller, but we won’t get to that point. I didn’t know any other way. But if the Court has another — I have got a blank thing. Whatever the Court says, we will do.
It is clear that the Court had long since determined there was going to be a remit-titur. The plaintiffs/appellees were simply trying to accommodate the court in providing three possible options; the original lump sum remittitur; a specific order and a blank order. This accommodation should not be viewed as any acquiescence to the remittitur, thus we should consider the cross-points.
In reviewing a trial court’s order of re-mittitur, the proper standard of review is factual sufficiency, not abuse of discretion. Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex.1987); Pope v. Moore, 711 S.W.2d 622, 623-24 (Tex.1986); Stokes v. Puckett, 972 S.W.2d 921, 927 (Tex.App.— Beaumont 1998, no pet.). We must examine all of the evidence in the record to determine whether sufficient evidence supports the damage award, upholding a remittitur only if some portion of the award is so factually insufficient or so against the great weight and preponderance of the evidence as to be manifestly unjust. Pope, 711 S.W.2d at 624. Furthermore, because the question of whether damages are excessive and that a remittitur is appropriate is a factual determination, the Texas Supreme Court lacks jurisdiction to review such findings. Tex.Const. art. V, § 6; Tex.Gov’t Code Ann., § 22.225(a) (Vernon 1988 & Supp.1999); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).
In assessing personal injury damages, the jury has wide latitude in determining the amount of the award. Matters of mental anguish and loss of love, companionship, society and support, which are necessarily speculative and not subject to precise mathematical calculations, are particularly within the province of the jury to resolve and to determine appropriate amounts. Maritime Overseas Corp., 971 S.W.2d at 402; Southwest Texas Coors, Inc. v. Morales, 948 S.W.2d 948, 951-52 (TexApp.— San Antonio 1997, no writ). Likewise, the court of appeals may not pass upon the witnesses’ credibility or substitute its judgment for that of the jury, even if the evidence would clearly support a different result. See Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986).
*527Therefore, I would hold the trial court erred in ordering a remittitur of both the actual and punitive damages and would reinstate the jury’s verdict.