*1 Jr., Appellees. JUNELL, Before MURPHY and No. C14-82-602-CV. DRAUGHN, JJ. Texas, (14th Dist.). Houston OPINION March
JUNELL, Justice.
This action comes to this supreme Court on remand from the court. Dy- It arose from the collision of Darrell (cherryp- son’s vehicle with a crane icker) Corporation. owned Olin supporting section pipe parallel overhead that ran to a two roadway by necessity lane extended Dyson’s four feet into lane. The Dyson negligent failing keep found in proper failing lookout and in to make time- ly application Corpora- of his brakes. Olin grossly negligent tion was found to in following one or more of the acts or omis- (1) (2) failing post flagman; sions: failing barricades; (3) failing to erect provide flashing lights; in leav- paved portion of the road. opinion,
This court issued its Dyson, (Tex.App S.W.2d . -Hous remanded, ton rev’d and [14th Dist.] 456), holding that the evidence factually insufficient to jury’s finding gross negligence against Corporation. The Texas opinion, Dyson Court in its v. Olin (Tex.1985), held that interpreting court erred in the elements of Royal as stated in Burk ty Co. v.
1981)and remanded to this court for recon insufficiency point. sideration of Olin’s supreme court stated that the correct definition was as fol lows: essence of must, course, neglect exist.
What lifts ordinary recognize into We supreme that the court’s gross negligence opinion is the mental attitude of constitutes the law of this case and defendant; the by we are bound it. justifies that is what the penal imposition nature of the of exem- As we in our original opinion, stated plary damages. plaintiff must show ample there is evidence in this record to that the consciously, i.e., defendant was parking show that Olin knew that the cher- knowingly, rights, indifferent to his wel- rypicker where it did peril. created a It safety. words, fare and In other partially obstructed one lane of traffic on a plaintiff must show that the defendant public traveling road. A vehicle in the lane knew peril, about the but his acts or by obstructed would have omissions demonstrated that he didn’t opposing to cross into the lane of traffic to care. Such pas- conduct can be active or safely pass it. sive in nature. supreme Under the opinion court’s we Burk Royalty Co. v. independently are not to examine the un- (Tex.1981). This court in its inter- peril. Therefore, reasonable nature of the pretation of that definition stated that to we conclude that there is sufficient evi- establish plaintiff “the prove dence to the first of the two elements prove (1) must two elements: the defend- gross negligence: that Olin knew of the ant knew of the existence of an unreason- peril. Having existence of the reached this peril able the defendant’s acts or conclusion, we next consider whether Olin’s omissions demonstrated he was indifferent conduct demonstrated indifference to the safety plaintiff.” We held people traveling Dyson in the that the evidence was insufficient to show absolutely vehicle. nothing Olin did about parking that Olin knew that cherrypick- peril. posted flagman, the known no plain er in view created an unreasonable barricades, provided erected no flashing no peril. Corp. Dyson, 678 S.W.2d at hold, therefore, lights. We that the evi- supreme 658. The court held this in- jury dence is sufficient to find- terpretation to be erroneous the follow- part Olin. ing reason: original opinion this court’s we held require Burk Royalty does not a new Dyson the trial court’s award to of actual independent examination of the un $16,404.17 damages of should be reduced peril.
reasonable nature of the
Rather
by twenty-five percent,
percentage
the focus is on the mental attitude of the Dyson’s comparative negligence as found
person charged and whether acts or
by
jury.
part
That
of our decision was
person
omissions
display
supreme
a con not affected
court decision.
scious and deliberate
original opinion
In the
we did not
Roy
interest or
of others. Burk
$115,-
question
rule on the
whether
922;
alty at
International Armament
punitive damage
Dyson
000.00
Corp. King,
twenty-five
should also
reduced
appeals injected
The court of
Dyson.
percent comparative negligence of
proof by
additional element of
re-evaluat
requires us
Olin’s seventh
of error
ing the reasonableness of Olin’s conduct
Appellant
pass
question.
on this
now
in determining
is
Cooperative,
relies on Pedernales Electric
sue.
(Tex.Civ.
Schulz,
posted flagman, no erected no barricades But what standard should it be deter- provided flashing no lights, the evi- mined whether the defendant was “con- dence was support sufficient to sciously safety indifferent” to the of the finding gross negligence. In consider- plaintiff? Supreme giv- The Court has not insufficiency error, factual points of guidance en clear question. on this the court examines the whole record to Supreme appears Court to have estab- only determine not that there is some evi- First, following guidelines. lished the dence finding, conscious, but also to indifference must be which considering determine whether all the evi- means that the defendant must know or dence, finding manifestly unjust. should have of the known existence of a Indeed, holding questionable. 1. I consider this recently to be Court has said: contrary “Thus, is §to 500 of Second Restatement of the test for is both an Torts which states: objective subjective and a test. A Disregard Safety 500. Reckless may prove gross negligence by Defined a defendant’s The actor’s conduct is in reckless proving subjec that the defendant had actual of another if he does an act or knowledge tive that his conduct created an intentionally fails to do an act which it is his addition, degree plain extreme a of risk. do, duty knowing having to the other to gross may objectively prove tiff a defendant’s reason to know of facts which would lead a negligence by proving that under the sur realize, man reasonable that his rounding person circumstances a reasonable conduct creates an “unreasonable risk" of would have realized that his conduct created another, physical harm but also that such degree an others", extreme of risk to substantially greater risk is than that which is added). (emphasis Renee McCrack necessary negligent, to make his conduct Industries, en Williams et al. v. Steves Inc. added) Ingram Equipment Company, 29. TEX. d/b/a knowledge requires The Restatement of an un- 16, 1985) (November SUP.CTJ. justify punishment reasonable risk. To aof test, me, require This it seems does a new and ought defendant to be shown that the defend- independent examination of the nature or char- ant knew or should have known that the risk of peril. acter of the physical harm was unreasonable. Second, injury of which the com- the attitude of indifference degree is to be inferred from the nature or factor is also de- plains. The mental negligence of the want care. Burk reports by the terms “mal- scribed Royalty, 616 S.W.2d at But at what ice,” “fraud,” “oppression,” “reckless- negligence or care does the want of ness,” Regardless like. great enough prove “conscious become it, used to describe expression is which indifference?” purpose intention of the defendant I propose not the standard be liability for of his exem- determinative ” changed, developed that it further be p. 241, Tex.Jur. plary damages.’ A objective. objective true and more 133. (emphasis § exist- test “conscious indifference” degree language a “acted ... with degree probability high ence approximates negli- harm will result from defendant’s bring fixed about of care. If a defendant or want suggests ...” that the indif- knows that his or should know that his ferent” defendant is aware injury, act or will cause omission injury. to cause conclude that “con- reasonable to sciously culpable the consequences. indifferent” to mental state of “conscious knows if the defendant or should in the rule indifference” is described know, creates An element of “reckless- “recklessness.” injury, remote it is far certain less act or knowledge ness” is omission *5 that indifferent.”2 injury. to The Second Re- is cause statement of 500 defines Reckless Torts concept that “conscious indiffence” § by knowledge Disregard Safety is or as: indicated act im- probably injury omission will cause is in reckless dis- The actor’s conduct is in plicit Supreme Court’s statements of if he another does regard of the relating punitive damages. rule to fails to do an act intentionally act or Howard, 101, 141 Tex. 170 Bennett v. do, to duty other which is his 709, S.W.2d and 712 Divi- Sheffield knowing having to know of or reason sion, Jones, Corp. v. 376 Armco Steel lead a reasonable man facts which would (Tex.1964)3 825, S.W.2d 828 the court realize, his conduct cre- to not adopted following as the statement physical ates an unreasonable general relating exemplary to rule another, also that such risk harm to but ages: substantially greater than is “ ‘In of exemplary order that a his necessary to make conduct which sustained, damages may added) negligent, (emphasis show, merely must that the defend- degree The Restatement focuses ought ant or to have foreseen could have It must be by the actor. sub- risk created prevented the loss or of which stantially greater that which neces- than plaintiff complains, but that he acted negligent. Com- sary make his conduct intentionally wilfully, degree or with a 500, f, intentional miscon- contrasts ment “gross approxi- § which negligence” and recklessness: duct bring about mates a fixed ultimately may lead recognized act apparently 2. The Court has Williams, 29 TEX. Williams in the Renee McCracken harm.” dilemma 16, case, 54, (November supra, stated: when it SUP.CT.J. at negli- “No can be drawn between exact line Royalty overruled the court 3. In Burk Sheffield test” care in of the “some because of its use required the actual act is deter- character of determining sufficiency points. But the gross negli- legal define the terms used to mined gence: as disapprove indifference” denotes a de- of the rule stated "conscious did not court impending harm to anoth- cision in the above. face of consequences party, about the er to not care ... While an act to be reckless In Texas must be “wantonness” has been defined actor, intended as: the actor does not
intend to cause the harm which results party doing where the failing act or or, from it. It is enough that he realizes to act is conscious of his knows, from facts which he having should real- without the intent to injure, is ize strong that there is a probability knowledge conscious of existing may conditions, harm result ... circumstances and that his conduct will probably result g, Comment contrasts § injury. and recklessness: Lundell, Brown v. The difference between reckless 1960), (Tex.Civ.App. on - Amarillo aff'd misconduct and involving grounds, Tex. S.W.2d quantum such a necessary of risk as is (1961). Because “conscious indifference” make it is a difference virtually “wantonness” are identical in degree risk, this difference meaning, the existence of such mental degree sois marked toas amount sub- ought state be determined the same to a stantially difference kind. means, namely probability injury. Division, Armco Steel Cor Sheffield jurisdictions In other that follow the Tex- poration Jones, 829-830 approach culpa- (Tex.1964), equates the court “conscious in state, ble mental whether described as with difference” “wantonness.” indifference,” “wantonness,” “conscious It may be said that the accident in this “recklessness,” includes an awareness that case result of be- probably actor’s conduct will cause in- company cause the did not use the care jury. required that was to avoid the accident. doing “Wantonness” the conscious But care the absence of this does not duty or the some act omission some levy damages upon authorize knowledge existing under the con- beyond limit company compen- ditions, and conscious that from the do- injury actually sation for the inflicted. duty of such act or omission such *6 justify penalty To there must have injury likely probably will result. wilful been some misconduct or that en- Harris, (Ala. v. So.2d 797 Kilcrease of tire want care which would raise the presumption of a conscious indifference Idaho, then, as the long In so evidence consequences. to The same rule is fol- injury shows that there has an to been jurisdictions. most lowed in See 98 act from an which is an A.L.R. 262. deviation reasonable extreme from 23, Dawson, conduct, Hinson v. 244 N.C. and that the act standards of 393, 62 806 holds that performed by S.E.2d A.L.R.2d was the defendant with an understanding disregard injury of or a its when an caused appropriate likely consequences any attempt to variations ... differentiate punitive trier award of fact to slight damages, fraught difficulty. maximum with Wan- hand, tonness, on the other connotes in- Co., Linscott v. Ranier National Ins. Life wrongdoing. Where malicious tentional (1980). 100 Idaho 606 P.2d involved, injury wanton wilful Superior Los Taylor Angeles Ct. of alleged must be shown to Cty., 24 Cal.3d 598 P.2d Cal. punitive puni- warrant held Rptr. 693 the court ages. personal is wanton when in con- damages Conduct tive are recoverable disregard injury against intentional of and driver. scious and action an intoxicated rights justify indifference to the of The court stated that to punitive damages on the basis conscious others. others, the safety dence “the show the road to be no dip level with large enough must establish to conceal a that the defendant vehicle. probable was dangerous aware of con- highly probable these conditions it is sequences he will- that a cherrypicker driver would see the fully deliberately failed to avoid those stop time safely to either maneuver consequences.” Taylor, P.2d at 856. Although around it. cre- dissenting opinion 598 P.2d Taylor, ated injury, some risk of was not at requires stresses that “test one. This is demonstrated fact probable dangerous consequences.” previous Dyson’s accident had used cherrypickers repair pipe along the road Although “probability injury” ap- many years times for several without mis- proach yet applied by has not been Texas hap. Because there is no direct evidence of courts, application its would be harmonious conscious indifference and the circumstan- with and in principles furtherance of the weighs tial heavily evidence towards the developed by as thus far conclusion that created Court. Because sound- remote, Olin’s I was would approach ness of this we should use it in hold that the evidence is insufficient reviewing sufficiency point before us. jury’s finding gross negli- Thus, the issue before us whether gence. evidence is sufficient to show that Olin Corporation indifferent” and this should be
tested whether there is sufficient evi-
dence which shows Corporation
or should have leaving known that on the road without warn-
ing devices or barricades was cause injury. INDUSTRIES, CHEMICAL EXCHANGE The cherrypicker extended several feet INC., Appellant, into the supporting air pipe. section of in broad daylight and was VASQUEZ, Jr., Appellee. Benito plainly visible drivers on the road. The straight exception road was with the of a No. A14-85-301-CV. curve about 300 feet from it.4 The cher- Texas, rypicker obstructed four feet of the (14th Dist.). Houston lane and did block a vision driver’s *7 any on-coming Dyson traffic. testified that March 1986. dipa beyond the road Rehearing April Denied 1986. prevented him from seeing a van opposing lane traffic. This is contradict- testimony Darryl
ed A. Pillans bystander
who was a at the accident scene.
He there testified that was no van or He
other vehicle. further states that the one,
dip was a not the road small more inches, large
than five not four or
enough photographs to conceal van. The
of the accident scene admitted into evi- forty fifty give did testified that he was about to the distance yards cherrypicker. from the before realized the curve to the moving. parked in the it was road and not He