Burk Royalty Co. v. Walls

9H Prosser, ref’d); writ W. illo Law of (4th 1971).

Tоrts ed. See Restate § BURK ROYALTY COMPANY et (Second) 368,414A (1965).3 ment Petitioners, Torts al., §§ Delegating independent this duty to an con tractor does not relieve the owner or occu Sally WALLS, Individually K. and a/n/f own pant liability negligence. for his Jeffery and Natural Guardian Paul Savage Kopplin, Moore & 135 S.W. 1033 Walls, Jr., Respondent. ref’d); Prosser, (Tex.Civ.App. W. 1971). (4th Law of Torts ed. No. B-9439. § The trial court submitted definition of Supreme of Texas. Court inherently dangerous work which Alamo May 1981. National Bank is contends incorrect because June Rehearing Denied 1981. does inherently dangerous not limit work peril to that work which creates no mat- how skillfully performed.

ter We do not question

reach this because the Court of Appeals judgment

Civil reformed the

trial court properly judgment rendered

against upon Alamo Bank the neg- National

ligence Error, findings jury. any,

in submitting this of inherently definition

dangerous work was harmless because it

was not reasonably calculated to cause nor

did it probably cause rendition of an

improper judgment. Rule Tex.R.Civ.

Pro. judgment Court of Ap- Civil

peals affirmed. Dangerous Duty 368. § § Conditions to Travelers 414A. of Possessor of Land to Prevent Adjacent Highway. Dangerous Activities and Conditions possessor permits A of land creates or who Those Outside of Land. possessor employed to remain thereon excavation or an other A permitted who of land has existing high- independent artificial condition so near an to do contractor way land, that he realizes or should realize that it work on the and knows or has reason involves an unreasonable risk to others acci- to know that the activities the contractor dentally brought into contact such con- him conditions created involve an un- traveling dition while upon with reasonable care physical reasonable risk of harm to those subject highway, liability land, subject liability outside of the physical thereby persons harm caused to them for if he fails to such harm exercise who against protect reasonable them care to it. (a) highway, traveling are on the (b) foreseeably from it in the ordi- deviate nary course of travel.

913

Groce, Hebdon, Locke & Thomas H. Crofts, Jr., Antonio, Carter, San Wich- Stan Falls, petitioners. ita Smith, Gilmer, J. Michael Clifton L. Holmes, Kilgore, respondent. SPEARS, Justice. exemplary damages

This suit for was Walls, brought by respondent Sally individ- and ually guardian as next friend and Walls, Jr., son, Jeffery Paul her minor against employer of her deceased hus- band, Paul Jeffery Walls. Mrs. al- Walls leged that the employer, Royalty both Burk Company, through its superintend- district ent, Swetnam, Swetnam, indi- Kenneth vidually, Having were grossly negligent. already compensation received workers’ benefits, damages for exemplary this suit brought by pursuant Mrs. Walls article XVI 26 of the Texas Constitution § statute, Judgment and a article 5.1§ statutory 1. All references are to Texas Revised Civil Statutes Annotated. tubing on the in the hole into the “cellar” from

was rendered for Walls based appeals jury's verdiсt. The court civil be hauled off truck. which it judgment the amount of the but conversation, reformed During the Swetnam said remanded the cause the trial court nothing safety. remained his about He Walls allocate the award between Mrs. extinguishers fire car did check for We son. 596 affirm the her safety equipment. other appeals. civil judgment of the court of left, began crew pull- After Swetnam question presented principal tubing job up on the ing tubing. Walls’ support there is some evidence to whether to take the 30-foot sections board was jury’s finding that Kenneth Swetnam pulled up (“joints”) pipe they as were on the grossly negligent occasion place He had a them in a rack. concedes question. Since strapped his shoulders and belt around vice-principal, that Swetnam was the prevent attached to the derrick to waist and evidence, jury finding supported by some Stephen falling. David Barnes and Van his exemplary Royalty Burk liable for Meter, members, crew were two other damages. Underlying issues concern the directly working on floor below the the the definition of and stan- working tubing Billy was from Lay board. gross negligence jury of review of dard rig he “goat oper- stand” on the where the findings. point A third concerns broаd sub- pulled (drum) cable that ated the winch and mission of issues. tubing up. the deceased, Walls, employ- The Jeff was an tubing the The closest to surface con- 8, 1974, on November ee noon Shortly no fluid. before after tained he an oil well when was burned death at joints, twenty dry pulling approximately fire County. site in Rusk The fatal oc- e., tubing, wet i. full of the crew reached working he a member curred while as joint could be fluid. Before the next tubing wet pulling from four-man crew gas escaped, pulled, pressurized pump so the at the bottom an oil well that up causing spew tubing oil to out of the replaced and production could restored. derrick, covering body the working tubing on board or into Walls’ Walls was the feet in twenty-five up about gas ignited derrick board and shot oil. Somehow the the the well. derrick above floor of derrick, the top like a torch to the of the flames begun Billy Lay, day, work that Before had body. the oil on fire igniting Walls’ well, charge in of the had operator Burk’s struggled Walls lasted for about a minute. get his look for intended to in truck and get belt safety out of his but couldn’t. Ehl, charge Boyd toolpusher in of the jump- Walls “kind witness described One crew, they to find how should remove out side, ing jumped ... over to the around he trapped tub- the fluid that would know, clothes and stuff was and his you (wet standing ing held in tubing) his falling him. It burned all of clothes off tubing. In the valve the bottom the at kicking and he was around bit.” off up meantime, drove to deliver Swetnam unsuccessfully to of the crew tried Some Lay asked him in- crew’s paychecks, throwing extinguish the fire on Walls stead. at There were of water him. buckets Royalty’s District Su- was Burk Swetnam rig. on After extinguishers fire charge company’s all the perintendent mid-air, suspended fire, body hung in Walls’ including in the East Texas area operations belt, down two safety until taken by his Lay that suggested safety for that district. later. hours dropped in the well charge be explosive jury to the Special issue No. submitted tubing and let the hole in the to blow a you preponderance from a “Do find asked: bottom, process drain out at fluid the occasion the evidence that on However, tube.” “shooting called failed follow question Kenneth Swetnam method, not to use that Lay told Swetnam pulling wet safety practices they tubing until pull but rather approvjed “Yes.” The tubing?” jury answered fluid, “swab” the remainder reached then jury negli- perform next such ty actually position found that failure was the task of gence proximate and a cause occur- Further, fire ing extinguishers. they question. finding rence in After substan- is no that say, there Swetnam son, damages actual for the widow tial knew should have known there were jury special found in issue No. 8 that extinguishers positioned properly no fire at question, the occasion in “the failure They number of cases well. cite a Kenneth negligence. Swetnam” if there “some care” hold accompanying instruction issue exercised, necessarily cannot be “an was instructed: care,” thus, exemplary entire want You are instructed connection with Division, are damages improper. Sheffield foregoing Special “gross Issue that Jones, Corp. Armco Steel negligence” is the exercise of so little (Tex.1964); Howard, Bennett v. 141 Tex. to justify care as the belief such (1943); Loyd Electric action a heedless and disre- reckless (Tex.Civ. DeHoyos, Co. v. gard of Jeffrey Paul Walls App. ref’d); Antonio Del — San others. Construction, gadillo Utility v. Tex-Con disregard” “Heedless and reckless Inc., S.W.2d 208 — Dallas means more momentary thought- than e.). They writ ref’d n. r. contend that lessness, inadvertence, judg- or error of since there is evidence in the record that ment. It means such an entire want exercised care” Swetnam “some there is no as to care indicate that the omis- act or care, of an оf justify evidence entire want question sion in the result of con- ing damages. an of exemplary award welfare, scious to the rights, indifference applied The to be by traditional standard or of persons by the affected it. appellate testing court in a “no evi- by This instruction is not attacked here the point dence” is for the court to consider defendants the although general court’s evidence, only the when viewed in its most negligence submission of the issue is at- light, support favorable that tends to the special tacked. In issue No. the jury’s finding negligence of gross and to $150,000, damages found exemplary of disregard leading all evidence contrary to a which the appeals court of civil to reformed Alviar, conclusion. Garza v. $100,000 plaintiffs’ to conform to pleading. (Tex.1965); King's Estate, re appeals The court of civil held there that (1951); 150 Tex. see some to support evidence jury’s Calvert, “No Evidence” and “Insufficient finding gross negligence. of fur- The court Error, Evidence” Points of 38 Tex.Law Rev. ther held that there that (1960). negligence defendant’s was a proximate cause of Walls’ in To death determine whether there is some evi- Swetnam prescribed posi- failed “to have available at support finding thе jury’s dence to (2) extinguishers pre- tions two fire negligence, we will first examine defini- by paragraph company scribed No. 14 of the Second, gross negligence. tion of we must safety rules.” gross neg- discuss our standard of review in ligence development cases. The of the con- Swetnam Royalty and here contend cept gross negligence in Texas has been is no evidence such an entire confusing. somewhat Various definitions part want of care on the of Swetnam as approved by have been courts depend- would to conscious amount indifference ing type on the of case involved. A discus- support damages. exemplary an award of concept’s They argue although development in sion of the historical Swetnam was charge safety, responsibili gross negligence by it was not his and the used definitions safety policies pro- tinguishers, equivalent, good working Company 2. Burk or in extinguishers operating, vided: While these order. placed opposite will in directions within be production rigs equipped 14. All will be ten of the feet well head. (2) twenty-pound dry ex- two chemical arriving Baker, helpful Ry. supra, will in T. at La- courts at the C. 423-424. ter, correct definition in art. Texas Constitution compensa- right its this workers’ tо application expanded XVI recover § exemplary damages tion case. when the situations through willful homicide was committed OF GROSS HISTORY NEGLIGENCE omission, act, gross negligence. willful or statute, implementing which was never 1. Texas Railroad Statute Period. unconstitutionality for attacked its before law, Under the common a cause of action recovery its amendment limited injuries personal for resulting in death ter- Sayles, damages. supra, actual article upon minated either death of the vic- gross neg- Most 2899.3 definitions tim, wrongdoer. 22 Am.Jur.2d ligence today used period, come from this by Death Tex.Jur.2d Death § “Texas which can be termed the Railroad Wrongful (1960). Act Because the rule § period.” Statute legislation a great hardship, created such During period Railroad Texas Statute modifying, abrogating, and even the rule attempts there were at least four different began appear around the middle of the to define court Century. 19th 22 Am.Jur.2d Death 2§ first Press and was Southern Cotton (1965). The first such statute was Lord Bradley, 52 Tex. 587 Manufacturing Co. Act, Campbell’s England passed in 1847. plaintiff sought recovery in which Annot., Damages—Senti- See Death Act— for the death of his wife caused Loss, (1931). mental 74 A.L.R. 13-23 discharge of the defendant’s steam from Texas enacted its own version of Lord plant. said: The court at 600-601 1860, allowing Act Campbell’s suit ground negligence, Gross damages recovery actual to survive a damages, exemplary should be that entire “by decedent reason pre- which would raise a want care proprietor, proprie- carelessness sumption of a conscious indifference tors, owner, charterer hirer of rail- consequences. indifference mor- Such is steamboat, road, stage-coach, or other vehi- criminal, ally it leads to actual passen- cle of or conveyance goods for the injury may regarded be as criminal unfitness, well gers, by gross negligence or law A mere of or .... act omission their or agents or carelessness of servants ” non-feasance, 35, punishable to be exem- 1860, by Leg. p. .... Acts 8th ch. 32. plary damages, should reach the border- damages were not recoverable Exemplary quasi-criminal a of T. C. v. line of act commission Ry. under the act. Houston & Baker, 419, (1882). or 57 Tex. 423-424 See malfeasance. Bradley, Ry. Tex. Houston & T. C. 45 Bradley The cites the case of Milwau- court (1876); Sayles’ 171 Tex.Civ.Stat. art. II Arms, 489, Ry. and St. 91 kee Paul U.S.

2899-2909, (1888). at 26-28 (1875). L.Ed. The Arms court said at 495: 1869, the Texas art. XII Constitution 30, It recovery negligence” the allowance of a for “Gross a relative term. added § meaning as damages for a “homicide is doubtless to be understood exemplary omission,” regardless greater implied by of than through willful act or a want care but, af- any proceeding “ordinary negligence;” term of the existence of criminal all, of arising from the homicide. See Houston & ter the absence the care means unfitness, gross negli- by passengers, 3. Art. 2899 or provided: gence, or or carelessness of their servants damages on An action for actual of account * * * added) agents. (emphasis any person injuries causing may death requirement gross negligence brought following cases: in the agents recovery part person any of servants or for the When death 1. ordinary negli- ‍‌​‌‌​​‌‌‌​​‌‌​‌​‌​‌​​​‌​​‌​‌​​​‌​‌​​‌​‌‌‌​​‌​​‌‌‍damages changed by negligence actual was carelessness of caused or 1887, charterer, by owner, by gence legislature proprietor, or amendment hirer of coach, 1887, railroad, steamboat, Leg., p. stage oth- 44. or to art. Acts 19th ch. goods conveyance vehicle er again, writing, negli- the circum- necessary Stayton gross under defines gross negli- gence: stances. to constitute [But exemplary

gence authorizing damages] case, given While in a “ordinary cаre” must have willful mis- there been some exist, may exist, at yet may conduct or that entire of care which want least, slight negligence, care .... Gross presumption would raise the of a con- ground exemplary to be the damages, consequences. indifference to scious should be that entire want of care which would raise the belief that the act Texas Next came the case of & Pacific omission of was complained the result Milley, De 60 Tex. Ry. v. right conscious indifference to the injury plaintiff an was caused by person persons welfare of the broken rail on a track was in bad added) (emphasis affected by it. Although condition. that court did not gross negligence, the term define Justice period, Of the definitions from the Shu- Stayton’s many discussion influenced trial ford definition is the most cited time charge courts to construct a through Texas years courts down upon following: based has never been overturned. unsafe, the road ... and for a long Under the Railroad period Texas Statute prior injury time was known to be cases, jury findings gross who, the [railroad], so to notwithstanding against the were usually railroads set aside knowledge, such conscious and by this court which held the definition criminal indifference to the pas- сharge in the not that of negli sengers, continued to its trains run with- gence ordinary negligence. but of Galves repairing out its road .... ton, Harrisburg Antonio Ry. & San v. Ku charge A upon Milley based De was given tac, (1890); 76 Tex. 13 S.W. 327 Mis Mitchell, Ry. in Missouri Pacific 72 Tex. Brown, Ry. souri Pacific Tex. 174-175, (1888). 10 S.W. 413-414 Hays cf. S.W. but v. Houston and Great R. R. Northern 46 Tex. 272 Stayton’s Justice next discussion of (1876) (suit damages to recover for forcible negligence came in International & Great ejectment passenger). of a railroad Ry. Cocke, Northern Tex. There, (1885). the court included in the Compensation 2. Worker’s Cases. phrase, slight definition a new degree “so of care.” The definition was: legislation major next to influence the definition

Negligence was the “gross” cannot be considered passage Compensation the Workmen’s unless evidenced entire failure to 1913, 179, Act in 1913. 33rd care, Leg., Acts ch. exercise by or the exercise of so 429. p. original pre- Section 5 of that act slight degree a justify of care as to the served right the deceased belief that worker’s person the whom care on was surviving spouse and heirs to recover exem- incumbent was to the indifferent interest plary damages the employee’s when death and welfare of others.4 homicide, is through occasioned “the wil- 1888, By Milley cases in which the De gross negligence” ful act or omission or type charge reaching was used were this employer. the v. See Middleton Texas court. In three down the cases handed Co., Light 96, Power & 108 Tex. 185 S.W. day, same them court ruled erroneous. (1916). language 556 This is retained in the Mitchell, Ry. supra; Missouri Pacific v. Mis- present statute, article 8306 5.§ Brazzil, 233, Ry. souri Pacific 72 v. Tex. 10 403, (1888); compensation S.W. 408 and Missouri Pacific Worker’s cases which deal Shuford, 165, 171, Ry. v. with the awarding 72 Tex. 10 S.W. of exemplary damages 408, Shuford, (1888). 411 In the court three an periods: can divided into time Rowe, 190, years by many (Tex.Civ.App. 4. This definition is cited in later 119 S.W.2d 193 — El 1938, discussing gross negligence ref’d). courts in under the Paso writ Statute, Texas Guest art. See Raub v. 6701b. 918 in, permitted to, period, active/passive period, and

early confined cases where period wilful, early “some In the where period. negligence care” is or it is so 1934, plaintiffs some gross from 1913 until around as to indicate wantonness malice.” 831; compen worker’s recovered under both the Then the holds court at 79 S.W.2d a claim sation statute and under enough. is Mere indifference Wells, v. 123 Morton Salt Co. negligence. indifference must be conscious. The in- 151, 70 409 Ft. Worth Tex. S.W.2d rights is difference welfare 128, Russell, 123 Tex. Elevators v. 70 Co. may pеrson persons who be affect- (1934); Chronister Lumber S.W.2d 397 Co. ed the act or omission. Thus 207, Williams, v. Tex. 288 402 116 S.W. im- doctrine of becomes foreseeableness (Tex.Comm’n opinion adopted), App.1926, portant. certification, (Tex.Civ. 28 844 S.W.2d after test, active/passive plaintiff Under this 1927, writ); People’s App. no — Beaumont damages seeking exemplary employee (Tex.Civ. Nowling, 16 .2d 976 Ice Co. v. S.W has against employer an never won.5 1929, writ). During no this App. — Amarillo applying The last of ac the cases period, several decisions also held that there gross negligence tive/passive test also no Rob test introduced the “some care” into Co., v. Petroleum 255 S.W. Magnolia ertson gross negligence In findings. review of 1923, (Tex.Civ.App. 223 writ — Beaumont Division, Corp. Armco Steel Sheffield Co., dism’d); Tracey Wichita Ice 30 Jones, (Tex.1964), 825 the court S.W.2d Worth S.W.2d — Ft. ex embraces the “some care” test while writ). during early It active/passive tending distinction. period that the first hint of “some care” Armstrong v. Sheffield was followed in Magnolia In Petroleum Co. test surfaced. Light Texas Power and Ford, (Tex.Civ.App.— (Tex.Civ.App. Tyler writ ref’d n. r. — ref'd, curiam, 1929), per writ Eastland e.) again Loyd Electric Co. v. DeHo the court Tex. (Tex.Civ.App.—San to yos, 409 S.W.2d 893 An said, evidencing very “This act itself ref’d). DeHoyos, at nio care takes the transaction out of the defini an appeals of civil noted that court gross negligence.” tion allowing plain recovery earlier case began period with the active/passive tiff, Wells, had supra, Co. Morton Salt Co. v. decision of Texas Pacific Coal & Oil recovery disapproved been allowed Robertson, (1935). Tex. showing without the of an entire want of requirement There the added a court Division, care. Armco See Sheffield Steel by holding Shuford definition Jones, Corp. supra at negligence positive or affirmative rather is care” The rationale of the “some cases merely negative ordinary as passive than degrees of entire want there cannot is. The court focused often care; there is either an entire want phrase indifference” “conscious care, If i. care or there not. key stressed that e., care, then there cannot be “some” person attitude mental thorough A search entire want care. approval charged. quoted The court has statement, recovery appellate is that decisions of state “The rule e.); following n. writ ref'd r. v. Texas Electric 5. cases this test and Nichols Some Howard, 101, Co., (Tex.Civ.App.— 141 Tex. Sеrvice 206 S.W.2d 860 result are: Bennett v. 1947, Zachry e.); Magnolia (1943); H. Petroleum Eastland writ ‍‌​‌‌​​‌‌‌​​‌‌​‌​‌​‌​​​‌​​‌​‌​​​‌​‌​​‌​‌‌‌​​‌​​‌‌‍ref'd n. r. B. S.W.2d 709 170 Fullilove, (Tex.Civ.App. Booth, (Tex.Civ.App.— Co. v. 177 S.W.2d 980 v. 105 356 Co. S.W.2d 1943, m.); 1937, ref’d); o. Rio v. Gulf Paso writ ref'd w. writ Cutler —El Beaumont Hocut, Co., (Tex.Civ. Valley Telephone 93 221 v. States Utilities 361 S.W.2d Grande Co. 1962, 1936, e.); (Tex.Civ.App. App. refd r. J. S. Paso writ writ n. 167 S.W.2d — El — Beaumont Scott, (Tex. Cross, dism’d); 206 93 v. 267 S.W.2d Co. v. Abercrombie Co. Southwestern Sewer 1954, e.); 1936, Civ.App. (Tex.Civ.App. n. r. writ ref'd no S.W.2d 202 — Galveston — Austin Co., Langston writ). Four 211 v. Tex-O-Kan Mills 1948, (Tex.Civ.App. Antonio S.W.2d 1020 — San

919 produce single failed to case which the time adoption act, of Texas’ of the had jury’s finding against gross negligence already language construed the “caused employer upheld appeal has been disregard his heedless or his reckless under the “some care” test. Divi Sheffield rights negli “gross of others” to mean sion, Jones, Corp. Armco v. 376 Steel gence.” 1077, Green, v. 102 Pfeiffer S.W.2d (Tex.1964); Loyd S.W.2d Electric Co. 825 v. 1937, (Tex.Civ.App. 1084-5 no — Beaumont 893 DeHoyos, (Tex.Civ.App.— 409 S.W.2d writ). construed, first The Texas act was 1966, ref’d); writ Amrstrong San Antonio oddly enough, by the Tennessee Court Light, v. Texas Power & 399 S.W.2d 922 Appeals Swink, 627, Fly v. 17 Tenn.App. 1966, (Tex.Civ.App. Tyler writ ref’d n. r. 902, (1933), — 69 906 S.W.2d e.); Putman, Valley, Missouri Inc. v. 604 court held the term “heedless and reck (Tex.Civ.App. 1980, S.W.2d 545 — Amarillo less” is equivalent granted); Delgadillo writ v. Tex-Con Utili 1142, Perry, Hamilton 109 1143 v. S.W.2d Contractors, Inc., ty (Tex. 526 S.W.2d 208 1937, writ). (Tex.Civ.App. no — Texarkana 1975, Civ.App. e.); writ n. ref’d r. — Dallas adopted ap This construction was then Co., Thomas v. T.C. Bateson 437 S.W.2d 386 proved by Supreme Court of Texas. 1969, (Tex.Civ.App. writ ref’d n. r. — Dallas Allen, 215, Rowan v. 134 Tex. 134 S.W.2d Dunn, e.); (Tex. v. 417 Stephens S.W.2d 608 1022, (Tex.Comm’n App.1940, 1024 opinion 1967, Civ.App. Tyler writ); no LeJeune v. — Rice, adopted); 116, v. 151 Schiller Tex. 246 Co., Gulf Utilities States 410 44 S.W.2d 607, (1952). S.W.2d 615 (Tex.Civ.App. 1966, writ ref’d — Beaumont traditional evidence test has been Co., e.); Ballenger n. r. v. Mobil 488 Oil reviewing guest used in statute cases.6 (5th 1974); F.2d 707 Cir. v. Woolard Mobil active/passive Rather than an or “some Pipeline (5th 1973); 479 F.2d 557 Cir. test, care” meaning Bennett, see Recovery Nations and of Ex guest accomplished by statute cases was emplary Damages Under the Texas Work examining record evidence of Act, Compensation ers’ 19 S.Tex.L.J. 431 care, looking an entire want to all (1978). circumstances, surrounding facts and just individual elements or facts. McPhear 3. Guest Statute. Sullivan, (Tex.1971); son v. 463 174 S.W.2d 1931, In legislature enacted the Texas Seale, (Tex.1970); Harbin v. 461 591 S.W.2d Statute, 6701b, Guest prohibiting article Lochausen, 289, Burt v. 151 Tex. guest in a recovering motor vehicle from 194, (1952). The 199 “heedless and reck from the owner operator of the vehicle less” definition “unless such shall accident have been inten traditional no evidence test have come to part tional on the operator, of said ownеr or generally. used in cases automobile Sieben caused his heedlessness or his reckless Harville, 113, 596 (Tex. list S.W.2d disregard of rights of others.” Acts 1980). 1931, 225, (Amend Leg., p. 42nd ch. 379. types several other of eases not involv- 29, ment by Leg. pp. Acts 63rd ch. ing 41-43, compensation, workers’ language unchanged.) exemplary dam- left this § ages have guest patterned statute after the been allowed without reference care,” guest Connecticut, rather, statute “some Gen.St.Conn. but the court has courts, § and the Connecticut at focused on whether the acts the defend- guest e.); Building Some cases are: Fancher ref 'd statute n. r. Goff v. Lubbock Prod Cadwell, ucts, (1958); (Tex.Civ.App. 159 Tex. 314 S.W.2d 820 267 S.W.2d 201 — Amarillo Seitt, Neal, e.); Kirkpatrick Bernal v. (1958); 158 Tex. n. r. writ ref'd Puckett, (Tex.Civ.App. Bowman Tex. 153 1941, S.W.2d — Beaumont Rowe, m.); S.W.2d 571 Raub w. writ ref'd o. Glassman v. Feld man, (Tex.Civ.App. ref'd); Paso — El — Amarillo O’Keefe, Higgenbotham writ); Napier Mooneyham, v. 94 v. (Tex.Civ.App. (Tex.Civ.App. ref'd n. writ r. S.W.2d 564 writ — Amarillo — Eastland Braun, e.); Transports, dism’d). Union Inc. v. 318 (Tex.Civ.App. 927 S.W.2d writ — Eastland 920 complained that the act or and deliberate disre omission

ant show a conscious of others so that his gard of the interest was the a indifference result of conscious willful, wrongful or may conduct be called right person welfare of the Phillips, 554 160 S.W.2d wanton. Hood persons it. to be affected (Tex.1977) (medical malpractice); Atlas substantially This the same is definition Anderson, Industries, 524 Inc. Chemical Jury Charges, in su- contained the Pattern (Tex.1975) (pollution); Clements 3.11, pra, Bar promulgated by the State § (tor- Withers, (Tex.1969) Texas, defining in and reckless “heedless contract); with Wilson interference tious in automobile disregard” suggested use Davis, Hospital N. Jones Memorial cases: — Waco disregard” means “Heedless reckless e.) (negligent employment).7 ref n. r. 'd thoughtlessness, momentary more than inadvertence, judgment. error It Negligence. of Gross 4. Present Definition entire want care as means such an not the first time this court This is ques- that act or omission in indicate question defining has wrestled with indiffer- tion was the result conscious 1943, in gross negligence. In Bennett v. welfare, or rights, ence to Howard, Tex. S.W.2d 709 it. persons affected Sharp writing for the court Justice above, and reckless As “heedless discussed as we the cases much have done reviewed syn- disregard” “gross negligence” are the “entire here. The court reasserted Thus, rejected they should be onymous the idea terms. want of care” rule in Morton Co. v. Salt terms. The jury advanced defined to the same Wells, supra, gross negligence can ex Jury by the Pattern suggested definition ist entire want of care whether there essential elements. Charge contains the slight degree “so when exercise of OF NEGLIGENCE REVIEW GROSS justifies of care” the conclusion that FINDINGS indiffer party acting a conscious others. rights ence to the and welfare of We the correct def- have determined that review of this same his Another exhaustive gross negligence is that set out inition of Division, in 1964 in Sheffield tory made in the problem the Shuford case. The Jones, supra, by Corp. v. Jus Armco Steel however, case, not so much the present reaffirmed Bennett tice Culver. The court We application of it. definition as further observed Howard and of our standard now to an turn examination guest being used in definition was Shuford findings of involving jury of review in cases Finally, in others. statute cases as well as contends case, Electric Loyd a 1966 “writ refused” gross no evidence of here that there is supra, the definition of Co. v. DeHoyos, negligence. again approved “entire want of care” finding testing jury degree care” was slight the “so test same no evidence negligence, us rejected. lead back All roads any other fact issue. apply should as to definition which acceptance of the Shuford prove the burden plaintiff has reads: If grossly negligent. the defendant was ground negligence, to be Gross negligence, the defend finds exemplary damages, that entire should establishing that belief ant has the burden raise the want of care which would Appellate practice guides Trial and Texas Forms: Civil West’s are of Texas There a number Felts, Practice, (1978); & gross negligence: Mitchell attempt Vol. 9 at 88 to define Anno., at Ferguson, Book Texas Form Moffett’s Charges, Jury Bar of State Texas Pattern Generally, (1958). all fol- ed. these 10th Tillman, Texas, (1969); Tillman’s Trial at 70 except for Professor Elliott, low the Shuford definition Guide, (1970); Personal at 65 Thode and phrase “or exercise who Texas, Texas, adds Dorsaneo litigation Injury Bar of State slight degree of Dorsaneo, Litigation care.” so 5 Texas at Guide, Jr., Edgar, (1980); Elliott & at 122-51 support finding. (Tex.1975), there is no evidence the 688-9 we upheld a The prior “some utilized in work- care” test gross negligence for finding of the dis- compensation ers’ cases improperly reverses charge resulting of industrial waste in dam- the “some care” burden. Under test age to another’s land. Despite defendant’s defendant, the proving instead of there of its efforts the “to reduce harm- support verdict, the evidence to would by ful quality accepted effluents show there is some evidеnce that does not devices, and control and to reduce eventual- support finding jury gross negli- the solids,” ly suspended eliminate the this e., gence, want i. entire of care. The bur- court said: to the plaintiff negate den is thus shifted Conceivably pollution the of Potter’s the care. existence of some This is almost despite Creek could have ef- continued impossible an since anything may task which, though forts to correct not Moreover, amount to care. the “some meeting reasonableness, the standard of care” violence to test does the rule for would have demonstrated that Atlas act- testing legal insufficiency the of the evi- ed with at least some concern for the dence requires only the evidence consequences to downstream property light viewed in favorable its most and tend- made, owners. If efforts were this rec- ing jury’s to support finding may the years ord is silent about For them. Atlas all, jury, considered. The after does not permit was in violation of its state have to believe evidence that “some care” doing public harm to the waters and the was exercised. When is some evi- property of others. Atlas shows no ex- dence of defendant’s entire want of care planation justification or apparently and also some evidence of “some care” nothing did significance meet defendant, the jury finding gross the problem. The entitled to negligence through entire re- want of care conclude that Atlas made business issue, solves appellate court is discharge decision to continue the of its finding bound testing legal for waste and did so with conscious indiffer- insufficiency.8 rights ence of others. Therefore cases, In automobile the existence of proper we have a basis for award to “some not finding care” will vitiate a plaintiff this exemplary damages, applies because the court supplied) (emphasis the traditional no evidence test to see if Appeals States United Court there is to support jury’s some evidence Circuit, applying Fifth Texas law to finding negligence. The court railroad, wrongful against death action looks surrounding to all of the facts rejected urged by the “some care” test circumstances, just not individual elements railroad. Broussard v. Pacific Southern Sullivan, facts. McPhearson v. (5th Transp. 1980). F.2d 1242 Cir. (Tex. 1971); Harbin v. Chemical, Citing Atlas the court observed: Seale, (Tex.1970). If applied “some care” test were auto holding in Atlas Chemical establishes cases, jury’s finding gross negli mobile of slight that evidence care will not al- gence (1) would be defeated if the driver enough to ways exemplary bar dam- wheel, (2) had both hands Instead, ages. determining whether a watching driver was going, where he was negligence, is liable defendant (3) attempt the driver did to “brake” whether, light question of all the when in a his car was skid. circumstances, surrounding the defendant care, failed to exercise exercised so

This court has refused to follow degree care, slight say that one can type “some care” standard review in other invoking gross negligence. consciously cases the defendant was indifferent In Atlas Industries, Anderson, Chemical Inc. v. interest Id. at of others. opinion dissenting 8. The fails to rule discuss cause the cannot be reconciled with the elementary significant rule of law. This is be- “some care” test advocated in dissent. 922 e.). n. We testing jury finding of r. further hold that the same “no

In phrase “entire want of gross negligence, the test utilized in McPhearson and evidence” understood in the context care” must be proper method review to be Harbin is jury is sim the whole sentence. The not compensation cases as in used in workers’ it must find an plistically instructed negligence all cases. grоss care,” “... but such an “entire want of determining In there is whether care as ... shows or entire want of the act gross jury’s finding some evidence result omission was the of conscious indif reviewing must look negligence, the court ” one ference If more than act or .... facts, surrounding circumstanc to all of produced alleged omission is and evidence es, conditions, just not individual ele and them, phrase support “acts or omis Harville, facts. su ments or Siebenlist sions” should be used. The essence of pra, glance may at 115. At first must, negligence neglect is not appear utilizing in to be some conflict course, ordinary negli What exist. lifts considering no evidence test traditional and gence gross negligence into mental and determine all the facts circumstances to defendant; attitude of the is what gross negligence. The McPhearson justifies penal the imposition nature of that the existence of Harbin cases indicate damages. plaintiff must exemplary upon need not a sin rest consciously, show that the defendant was i. omission, gle, may from a act but result e., rights, ‍‌​‌‌​​‌‌‌​​‌‌​‌​‌​‌​​​‌​​‌​‌​​​‌​‌​​‌​‌‌‌​​‌​​‌‌‍knowingly, indifferent to his wel omissions, acts negligent combination words, safety. plain fare and other may many and elements circumstances tiff show that the defendant knew must determining in whether considered peril, but his acts or omissions about gross negligence. A mental act constitutes that he didn’t care. demonstrated Such from All may in be inferred actions. passive nature. state conduct can be active indicating a state disapprove language prior sug We in cases actions or circumstances gesting that a distinction should be made indiffer amounting of mind to a conscious determining in the existence between them deciding in if there ence must be examined gross negligence. evidence of determination, justification having exists evi- making No “In all reviewing gross a different standard for light in most dence must considered negligence findings employer cases than favor the party favorable to the whose Accordingly, disap in other we type cases. rendered, rea- every been verdict has prove use of the “some care” test the evi- sonable inference deducible from determining legal sufficiency points and fa- indulged party’s is to be in such dence it. applying overrule those cases Sheffield Seale, 461 592 vor.” Harbin S.W.2d Division, Jones, 376 Corp. Armco Steel Alviar, (Tex.1970). 395 Accord: Garza v. (Tex.1964); Loyd Electric Co. S.W.2d (Tex.1965). S.W.2d (Tex.Civ.App.— DeHoyos, 409 S.W.2d 893 The evidence favorable rеf’d); Armstrong San Antonio writ finding jury’s was: Light, & 399 S.W.2d 922 v. Texas Power Baker, director, company’s safety Harlan 1966, writ n. r. (Tex.Civ.App. Tyler ref’d — spent military service and years Putman, e.); Valley, Missouri Inc. Petroleum not familiar with the American (Tex.Civ.App. — Amarillo standards, was safety industry Institute’s granted); Delgadillo v. Tex-Con Utili relating any safety standards aware Contractors, Inc., (Tex. ty tubing, wet and was not familiar pulling e.); writ ref’d r. Civ.App. n. — Dallas gas about knowledgeable oil Co., 437 T. C. Bateson S.W.2d 386 Thomas v. Meter, production. Stephen Van one of 1969, writ n. r. ref’d — Dallas meeting, crew, had never been to a Dunn, (Tex. e.); Stephens v. rules, any safety copy shown a was never writ); LeJeune v. Civ.App. Tyler — safety in nor he been instructed about had Gulf States Utilities Lay’s Nei- Billy six weeks on crew. writ ref’d five or (Tex.Civ.App. — Beaumont Swetnam, type, Superintendent ther the District but a just you buckle “like a belt put Baker responsible safety, nor had ever on your jeans.” The jury blue was entitled anything safety. said to him about On the got believe that could have he death, day nothing Walls’ said Swetnam buckle, safety quick-release belt off a safety. fires or Van Meter and about the and geronimo if there had a a been line or other crew members smoked on the rig; mechanism, quick escape Walls could have any Van Meter was not aware of rule saved his own life. against it. He didn’t believe there was a Further, prior beginning pulling to the rig. no-smoking sign on the The crew had operation foreman, day, Billy Lay, that the where they a fire built in a bucket would Swetnam, super- consulted with the district just themselves. The fire was warm behind district, charge safety intendent in in his jack pump rig the of the and burned diesel problem. told and him about the Swetnam Barnes, member, David another crew fuel. was told of of the presence the flammable the fire testified was 40-50 feet from the tubing, substances in but he the did noth- Billy Lay, operator, well. the said he didn’t ing. car, get He did not out of his he did if there any extinguishers know were fire not check safety safety for conditions or rig on the or not. He he said smoked on violations, give any safety and he did rig as did the others. He didn’t know if he fact, instructions. he instructed that assigned was even any extinguishers. fire they Baker, tubing. not drain the Harlan placed He the fire 25-30 about feet from the Lay safety well. director for Burk Royalty, said there were said safety two meetings year during supper a any safety at a restau- he not aware of standards rant, but required. attendance was not tubing. pulling for wet If there were no Contrary assertion, to Lay Swetnam’s stat- standards, safety jury as could believe monthly meetings ed no safety were ever witness, from the would that constitute still Lay held. stated that he “never did really jury another basis for believing pay much attention extinguish- to the fire Moreover, was an entire want of care. and ers” “I don’t know if we had [fire jury also could well infer that the testimony extinguishers] rig on the or not.” Van Me- of Swetnam and Baker about the existence ter testified unequivocally and without con- safety meetings, safety rules on bulletin tradiction that there were no fire extin- boards extinguishers and fire was untrue or guishers rig. on the any safety which rules did exist were There was also evidence that Walls had just for hold “show.” We there was quick-release safety “ger- his belt or upon jury which the could base its get ground onimo line” to quickly to the finding negligence on Swetnam’s emergency This, too, such as this. was a part. violation of company’s own safety Burk concedes in Royalty appli its rules.9 The appeals court of civil held there to cation this court that Swetnam awas nowas evidence that the failure to furnish principal vice company and in charge quick-release a safety geronimo belt and district, safety for argues his but proximate line was a cause of his death personally responsible Swetnam was not for he was because never able to extricate him- implementing safety regulations. That safety self from his belt. This is circular responsibility, says Royalty, Burk was dele reasoning, however, begs ques- gated rig to Billy Lay, operator. In Ft. minute, tion. fire lasted about a dur- Russell, Worth Elevators Co. ing which time the Tex. deceased was seen jump- around, this ing trying get to court held safety belt off. corporation The buckle on the that a safety non-delegable belt was described has quick-release one witness as duty provide not of regulations rules and company’s published safety wearing 9. Rule 13 of the quick insure that he release safety geronimo reads: quick rules belt and that a line or escape prior mechanism is installed operating pulling While unit or a workover trip. first man, utilizing unit derrick driller will and the un- employees, proved to furnish safe facts that were were its instrumentalities, provide machinery and pleaded. pleadings between Variance work, and select careful place a safe proof complain only when entitled one servants. Viewed in competent fellow substantial, un- the “wide” variance is cannot claim that light this waived, opposite party has been follow failure to its оwn principal’s its vice mislead, surprised, prejudiced. Brown was the approved safety standards fault Storage supra v. American Transfer & responsibility employee. The for the 937-938; Lawyers Title Ins. at Stone meaningful safety pro- to have failure (Tex.1977). Corp., gram employees, its if the so be- case issue lieves, scope falls within Russell as whether the defendant failed to follow non-delegable duty. practices pulling wet

approved safety BROAD OF SUBMISSION separate no need to ask tubing. There was ISSUE NEGLIGENCE questions each reason that defendant about has the trial do so. This court may Burk attacks have failed to negligence court’s broad submission of the be written that Rule 277 will repeatedly ap the court of civil issue. We hold that In Mobil Chemical Co. applied as written. correctly trial peals approved the court’s Bell, (Tex.1974), we de 517 245 v. S.W.2d which broad submission of an issue asked case, issue a clared following negligence in the words: about negli in terms of may broadly be asked you preponderance Do find from a gence breaking specific inquir without into question, that on the occasion further We that rule and state ies. restate ap- failed to follow Kenneth Swetnam ordinary negligence applies that this rule pulling wet proved safety practices for cases, just ipsa concern res not cases which tubing? of sub approved this form loquitur. We was a vari Royalty argues Burk Harville, v. 596 again in mission Siebenlist pleadings proof. and ance between the we (Tex.1980), upheld 113 when S.W.2d pleading problem, This a one is han issue single submission one objections to the evidence and dled requiring rule It is understandable that a objections to requires which distinct “distinctly sepa- and issues to be submitted specifically which advise court charge from 1913 until rately” prevailed 274. The ob each variance. Tex.R.Civ.Pro. upon its slowly relinquish would hold 1973 charge by Roy jections leveled at 1973, 277, as practice, but after Rule trial any specific alty distinctly point do amended, issues permits submission of variance; point waived. Da thus the though they include a combi- broadly even 660, (Tex. Campbell, 663 vis v. 572 S.W.2d court, in or issues. This nation elements 1978). the- has written in to the times it addition Brown v. American Transfer and Stor In cited, a has on number opinions already Co., (Tex.1980), we re age 601 931 S.W.2d occasions, broad submis- approved other of Rule 277.10 We fur purpose stated the Corp., 584 v. General Motors sions. Turner Atchison, v. ther that Scott pointed out 844, v. (Tex.1979); n. 1 847 Scott S.W.2d Ry., Fe 572 S.W.2d 273 Topeka, and Santa Pаcific, Inc., 554 489 S.W.2d Ingle Bros. (Tex.1978) situation where concerned Na- (Tex.1972); Drilling Co. v. First unproved Haas alleged were left plaintiff facts accomplished by part: than provides instructions rather 277 Rule question. inclusion in the discretionary with the court It shall be case, submitting sub- the court shall questions separate whether submit explanatory and defini- such instructions mit respect a case to sub- to each element of proper jury to enable the as shall be broadly. objection- tions It not be issues shall mit and in such instances general render verdict question or includes that a able objection subject charge not be shall or issues. Inferen- of elements combination tial charge. general not be submitted. that it rebuttal issues shall may placing proof burden of 925 Bank, 886, (Tex.1970); ing tional 456 889 S.W.2d a submission of distinctly “each issue Co., Tellepsen Pate v. Const. 596 S.W.2d 548 separately, avoiding intermingling” all (Tex.Civ.App. 1980, [1st Dist.] stating “issues should restricted — Houston e.); n. writ ref’d r. Partida v. Park North specific negligence alleged acts prov 38, Hospital, General 592 S.W.2d 39-40 en.” those we now Among cases overrule 1979, writ ref’d — Beaumont Barclay disapprove are: v. C. C. Pitts e.); Hudgins, n. r. 898, Stoner v. 568 S.W.2d Co., (Tex. & 387 644 Sand Gravel S.W.2d 1978, 902 (Tex.Civ.App. Worth — Ft. 1965); Walker, Kainer v. 377 613 S.W.2d e.); Farms, ref’d n. r. Jon-T Inc. Good (Tex.1964); Agnew Coop., v. Coleman Elec. Inc., pasture, 743, (Tex.Civ. 554 S.W.2d 750 Inc., 587, (1954); 153 Tex. S.W.2d App. 1977, e.); writ ref’d n. r. — Amarillo White, Roosth Prod. & Genecov Inc. v. Norris, 386, (Tex. State v. 550 S.W.2d (1953); 152 Tex. S.W.2d Sol Civ.App. Corpus Christi writ ref’d n. — R., gaard v. Texas & N. O. R. 149 Tex. e.); Rawson, r. Co. Gaber 549 S.W.2d (1950); City of Fort Worth 21 (Tex.Civ.App. [14th Dist.] — Houston Lee, 551, 186 (1945); Tex. e.); Baytown writ ref’d n. City r. Walgreen-Texas Shivers, Co. v. 137 Tex. Townsend, (Tex.Civ. 548 S.W.2d 493, 154 Wichita &Falls App. 1977, writ ref’d [14th Dist.] — Houston Ry. Pepper, O. 134 Tex. e.); n. r. Feeders, Herrera v. Balmorhea (1940); Co., Fox Dallas Hotel 111 Tex. Inc., 84, 539 S.W.2d 85 (Tex.Civ.App. — El 461, S.W. Coleman v. Texas 1976, Paso e.); writ n. r. ref’d Members Ry., Pac. (Tex.Civ.App.— & 241 S.W.2d 308 Mutual Ins. Co. v. Muckelroy, 523 S.W.2d 77 1951, Stott, ref’d); Dallas writ Weidmer v. (Tex.Civ.App. ‍‌​‌‌​​‌‌‌​​‌‌​‌​‌​‌​​​‌​​‌​‌​​​‌​‌​​‌​‌‌‌​​‌​​‌‌‍ 1975, [1st Dist.] — Houston (Tex.Civ.App. 48 S.W.2d 389 Worth e.); writ ref’d n. r. v. Mid-Conti Shasteen — Ft. 1932, Co., ref’d). Refrigerator 437, nent 517 S.W.2d writ ref’d n. r. — Dallas other Royalty’s points of error are e.); Sulphur Gladys Texas Gulf Co. City judgment overruled. the court of Co., 506 S.W.2d 281 (Tex.Civ.App . —Beau civil appeals is affirmed. mont e.). writ ref’d n. r. practice non-negligence in Dissenting opinion McGEE, J., cases has by in

never required the specificity same rule of BARROW, JJ., join. DENTON and required that was Fox by v. Dallas Hotel GREENHILL, opinion Concurring by C. (1922). 111 Tex. 240 S.W. 517 Pri J. or to practice there one for the GREENHILL, Chief Justice. submission of issues non-negligence in cases and a different for one cases. agree I in viewing the as a record expressly This was articulated in Roosth & whole, there is to support evidence the White, Genecov Production Co. 152 Tex. jury’s finding that in- there conscious (1953). 262 S.W.2d 99 The court in safety Jeffery difference to the Walls. Roosth & Genecov cited as examples careful, opinion The Court’s re- evidences unequal City treatment Houston Lu improve search and strikes out to and settle rie, (1949), 148 Tex. a difficult area of the law. While it over- Howell, Howell v. 147 Tex. long opinions rules a to bring line the (1948). rule, simplified Court to one it to clings may continuing question There be some reviewing jury another test for findings holdings about concerning our issue submis “conscious indifference” which seems me previously sion because we not have over unrealistic. required ruled those cases which have My problem opinion with the Court’s specific specific issue for each element of use its of the “traditional no evidence test” negligence. We expressly now overrule whether determining evidence those cases that before arose the 1973 revi support jury’s sion of Rule 277 the verdict. While saying and which followed the test, of Fox requir mandate v. Dallas Hotel Co. opinion follows the “traditional” the support evidence to the part jury’s finding not. A of the “traditional no does disregards (or test” is that this Court We evidence conscious indifference. did not I did jury’s evidence unfavorablе the an- opinion) all the not as author the use “tradi- me, opinion, swers. The Court’s it seems to tional no evidence test.” part the consciously removes that “tradi- Industries, Inc. An- Atlas Chemical another; i. and moves down to tional” test derson, original the e., the must be viewed [all] opinion points of this Court out several jury’s ver- light most favorable the “care,” exer- instances of or “some care” dict. guest by cised the defendant. The statute all, say, trying our we are After as cases one not The case was involved. acted to determine whether defendant by the chemical com- pollution of a stream safety with conscious indifference to the Sheffield, Citing original the Court’s pany. line, I read the The bottom as others. “complete opinion “no of a found evidence” cases, is mind of the defendant. the state of company. want of chemical care” he or she act with callous or conscious Did On items of “care” are listed. Several To do indifference to the of others? rehearing, itself. We the Court reversed reviewing that, suggest court I case, in the wrote that from other evidence look at all the facts. must to conclude that was entitled cases, the In a number of our Court large act with company chemical did conscious acts of the disregarded has not all discharging pollutants indifference It has considered the bad and defendant. into the stream. The Court did use not-bad elements of defendant’s be- test,” or the “com- “traditional no evidence legal reaching conclusion that havior reached its plete want of care test.” It support jury’s ver- there is evidence to all of the evidence. legal conclusion from dict, “any,” or not. The use of words guest cases There several statute are not, my opinion, “some” evidence should in which, opinions I as this Court from dispositive gross negligence cases. them, The consider all evidence. read example: For there evidence that case opinion Royalty in this Burk Court’s car, defendant, in a non-defective continued lip holdings by saying pays to those service per into a small drive at 65 miles hour to no apply that the the “traditional Court will light and runs a red town. The defendant test,” look to the evidence will —but line passes a over the center before car I am a loss “facts and circumstances.” at is “some evi- accident. That “the facts and circum- to understand what If the Court dence” if it not meаn that stances” are does evidence, it must affirm only that considers Looking at the evidence. Court will look all finding. Then the court applying at all the evidence and also daugh- that defendant’s wife finds are, me, to no evidence test” “traditional ter, bleeding to death are persons, or other contradictory. car; and the back seat of defendant’s Puckett, 144 Tex. Thus in Bowman v. not immedi- they they will do receive die gross 188 found Will S.W.2d 571 the Court then ate medical attention. opinion points out negligence. test” to This no evidence Court’s use “traditional He may There negligence? by items of “care” the defendant. gross evaluate in- per But is there conscious hour negligence, yes. 70 or 80 miles slowed his car from life? to human difference small town. 40 or 50 as he entered the to the accident. applied his brakes to avoid He Harville, 113 v. 596 S.W.2d Siebenlist the car “grabbed” The brakes caused “drag- (Tex.1980), young defendant that defendant There was evidence skid. damp a small town. on the streets of ging” might “grab.” Justice knew that his brakes except reason for this conduct There was no Smedley us that “the facts wrote for did involve the case excitement. prove that strongly ... tend evidence that from Court held statute. This guest acting in hеedless circumstances, respondent there was the facts and all

927 ” disregard reckless .... damages justifies 188 S.W.2d at to be recovered [Emphasis 574. suggest I this is a higher mine.] standard review for worker’s com- cry far from the “traditional no evidence pensation cases. We said: test.” ground negligence, “Gross to be the exemplary damages, should be entire opinion Court’s in this case sets out on pages 922 to 923 much evidence of want of care which would raise the belief complained conscious indifference by agent the act omission agents Royalty of Burk Company. The dis- was the of a conscious indifference result senting opinion sets out evidence of “some right person welfare of the Considering page care” on all of the persons by (Emphasis to be affected it.” evidence, my conclusion is that there is added). support jury’s finding There overruling is no reason for sound this by there was a conscious indifference settled rule law and I would follow the of Jeffery Walls. Sheffield, holdings Howard, Bennett Loyd Electric. Recent civil appeals Justice, McGEE, dissenting. following court decisions the Sheffield rule Community Properties, include: Inc. v. I respectfully dissent. Neely, 947 (Tex.Civ.App. Tyler 611 S.W.2d — Recovery exemplary dаmages pending); writ Bell under Southwestern Tel compensation Davis, the worker’s requires ephone (Tex. statute Co. v. 191 S.W.2d showing negligence, which has Civ.App. writ); Jay Fikes — Waco consistently been defined this Court as Walton, and Associates v. that entire want of care would raise (Tex.Civ.App. writ ref’d n. — Amarillo presumption a conscious indifference e.). Withers, r. See also: Clements v. Division, to the consequences. Sheffield (Tex.1969); S.W.2d 818 N. Wilson Jones Jones, Corporation Armco Steel Davis, Hospital Memorial (Tex.1964); Howard, Bennett (Tex.Civ.App. writ ref’d n. r. — Waco Tex. 170 S.W.2d Loyd e.). Company DeHoyos, Electric The majority after full consideration Antonio — San holds that the definition of ref’d). cases, In each of these the court as reaffirmed Court in Sheffield is considered the correct standard of review to Yet, by changing correct. the manner of recovery of support exemplary a damages review, significant- this definition would be compensation in worker’s cases. Each case ly changed. is held reviewing It that the concluded that if there is some evidence of the apply court should “no evidence” test. alleged negligence care relative to the on require reviewing Such review would the defendant, part the of the the evidence fails only court to consider the evidence when to meet the requirement that be an there light viewed in most its favorable entire want of care. support jury finding tends to a of gross Sheffield, plaintiffs urged the the negligence to disregard of all evidence apply court to the same standard for re- care. This results in an abandonment of viewing the evidence to both automobile long “gross negli- the settled definition of compensation cases and worker’s cases. gence.” applying It is fundamental that in conceding that Without a different stan- test, reviewing the evidence the court is applied, distinguished dard in fact we the would at the of totality not look the evi- statute, guest automobile cases. Under the if dence to determine the act or omission negligence had to gross be shown to recover complained was the result of of conscious However, compensatory damages. the right the indifference to or welfare of the plaintiff compensation in a worker’s case person persons by to be affected it. already compensatory has recovered dam- seeking “Entire of care” is ages only exemplary puni- and is want now misnomer. damages. strictly punitive By changing scope gross tive The nature for the review well, this pump have The broke on necessitat-

negligence, changed way we that we The ing pulling tubing. define The was well opinion Court’s leaves us with a definition field, old in a pressure an well low that is called an “entire prefer drop- gave company no reason to care,” by but of care want evidence swabbing the wet tub- ping charge over to defendant becomes irrelevant determine ing. pulling crew consisted of three if been gross negligence has established. operator, Billy Lay, who was men and the If, review, disregard we all evidence of job-site supervisor. experi- was He care, clearly are permitting recovery we for operations. conducting pulling enced less than entire want of The es- care. they is There uncontradicted evidence that ordinary neg- tablished distinction between gas at all properly pressure bled off the ligence negligence has gross disap- operation. There is no evi- stages this peared. particularly is true if the re- This cause of the fire. dence viewing court considers evidence an em- usually Boyd consulted with Billy Lay ployee’s conduсt which was not found to be Ehl, superin- one of the assistant district jury, as has been operations, tendents for Burk’s East Texas in this done case. fluid concerning removing the method of I not Burk Royalty do believe that tubing pulling operations. On during from guilty negligence under facts Swetnam, day, particular Kenneth of this case. Under the circumstances well came to the superintendent, district today, rule announced the Court there paychecks to at about the time site deliver must be some evidence Swetnam to be made concern- that a decision needed grossly negligent Royalty Burk for ing the method to be used. decision punitive damages. held liable for Under swabbing method. was made to use the test, we would look see “some care” only a few job was at the site Swetnam part is on the evidence care minutes, present at the time and was not proved has her Royalty. of Burk Walls not Roy- fire. that Burk There standard. case under either alty swabbing has method since used clearly All of the evidence in this case time it to be and does consider operations that the on the well in this shows it highly dangerous. If had been con- highly were and not considered case routine dangerous operation, a potentially sidered dangerous by industry. those in the There con- Boyd present Ehl would been have removing are two methods discussed for stantly supervise. tubing process pulling fluid from operator tubing servicing while a well. The being held liable because drop charge either and shoot a hole could gross negligence of its vice- alleged drain, tubing, allowing in the the fluid principal, Kenneth Swetnam. There The cost is pull tubing dry. and swab nothing that it suggest in this record to Pulling tubing the same for either method. well site job inspect the Swetnam’s servicing, of well and well part is a normal rules, pres- namely the violation of servicing operation. Roy- is Burk a routine extinguishers, ence and location of fire operations pulling at the alty did a lot of line, quick- a or the use of geronimo use of accident, pulling and had three time of this not Swetnam’s safety release belts. It was There evi- working at the time. is units job job place extinguishers at each to fire percent of all wells dence that about 90 site. meaning “gas” operations, these during previously recovery This Court has denied There is gas rise to the surface. that will plaintiff where the exemplary damages unusual, but that was more also evidence duty personal not that it was the did show rare, to flow out certainly for oil not in the lawsuit. employee of the named However, gas. this was first with the corporation general employer duties of the in nine this field that years time in at least personal duties automatically are not such force that spewed oil had ever with Weingarten, every managerial employee. a there had been fire. Moore, (Tex.1970). required Inc. v. a quick-release use of safety Selph, See S. H. Kress & Co. v. geronimo during line pulling belt and a operations. — Beaumont e.). ref'd n. r. is There no it was evidence Swet- Howard, supra, Bennett v. a case with job personally physically to inspect nam’s remarkably facts similar to this one. The safety, a job site for either on routine every plaintiffs right to based the recover exem- spot-check basis. Ehl Boyd basis or was plary damages superintendent’s on the field responsible supervision for immediate alleged negligence instructing in site, each well as he was the field foreman. crew running foreman on the manner job among job His was to circulate locations tubing into well. We concluded: he so that was at each site to three four nothing “There is in this record to show daily. constantly supervised po- times He disclosed Smith an ‘entire want tentially dangеrous situations. care’ or a ‘conscious indifference’ to direct, testimony There uncontradicted rights working men of the on the well at Lay’s job operator was Billy that it as the explosion. time of the It is true that extinguishers to see that fire checked are gave general Smith orders as to how well, for no proper placement. There were tubing placed to be in the but concerning negligence as to details of how the work issues submitted done, should be these to seem have been gross negligence Ehl Boyd either judgment left of the men .... Lay. Billy judgment ordering Smith’s running The issue submitted asked if “Kenneth tubing way may his have been approved safety Swetnam failed to follow wrong. justify This alone would practices for pulling tubing.” wet There is recovery exemplary damages.” any ap- evidence that violated Swetnam Royalty’s Burk safety director was Har- proved safety practices the choice of lan Baker. He was not made a party removing for fluid tubing. method from the lawsuit, and there no jury issue There is no evidence to indicate that Swet- inquiring negligence about Baker’s personally nam should have supervised op- negligence, any. approved erations under safety standards. There two were levels оf supervisory per- short, evidence there is no that Swetnam Swetnam, sonnel below both which had guilty carrying safety responsibilities. Swetnam was the out of his duties. safety superintendent district for the entire East The court relies on evidence of Texas His area. duties were to out carry part many people on other than management wishes. district superin- As inspection It also duties Swetnam. creates tendent, responsible he was generally attempts It also make Swetnam. area, safety within the insure oil operation something routine field into so people working equipment were aware personal highly unusual as merit of safety regulations. standards and Safe- supervision capac- of someone Swetnam’s ty promulgated, posted rules were on bulle- boards, given every ity. tin employ- new conflicting ee. There This record also shows evidence of “some

regularity safety meetings, but part care” on the of Kenneth Swetnam meetings held. were There were “no smok- Therefore, ‍‌​‌‌​​‌‌‌​​‌‌​‌​‌​‌​​​‌​​‌​‌​​​‌​‌​​‌​‌‌‌​​‌​​‌‌‍Royalty. Burk I would not hold ing” rig signs posted on this and rules con- liable under either standard cerning smoking. extinguishers Fire were judgment would reverse required every rig, in every on truck. appeals. court of civil contradictory The evidence is as to the loca- tion extinguishers and number fire BARROW, JJ., rig. extinguishers join DENTON and this clearly Fire were

provided by dissenting Burk Royalty. Safety opinion. rules

Case Details

Case Name: Burk Royalty Co. v. Walls

Court Name: Texas Supreme Court

Date Published: May 27, 1981

Citation: 616 S.W.2d 911

Docket Number: B-9439

Court Abbreviation: Tex.