*1 given, requested have been but instead quoted referring
instruction above COMPANY, UNIVERSAL SERVICES “principal reason” for the INC., Petitioner, retaliation and de- fining request term. believe this We preserved nevertheless error for two rea- Huy UNG, Hieng Khaov First, sons. TDHS took the instruction from al., Respondents. et concurring opinion Winters endorsed three Members of this Court. No. 94-1053. separate opinions While of Justices on this Supreme ordinarily authority, Court Texas. Court are accorded little guide there was no other Texas law to Argued 1995. Feb. Second, request TDHS. called the trial Decided June 1995. court’s attention causation element missing Question Depart- 2. In No. State Rehearing Sept. Overruled Highways Payne, ment (Tex.1992), we stated: “There should be determining party test for if a one preserved jury charge, error in the and that party
is whether the made the trial court complaint, timely plainly, ruling.” Payne,
and obtained a Under properly preserved
TDHS error on its
charge complaint.
rv complains ap- also
TDHS the court of
peals’ holding that the trial court’s award of
$18,000.00 anguish damages in mental supported by legally sufficient evidence. granted application for writ of error error, point
on this in addition to the one addressed, court
we have correct the (Mar.
appeals’ holding. Tex.Sup.Ct.J. 1994). disposition Because of our of this grounds, longer
case on other we no need to
reach this of error. as
Inasmuch we have concluded jury prop-
district court failed to instruct the reversible,
erly, and that this error was we
reverse the
and remand this case to the trial court for a
new trial.
I February working with a In while alongside Interstate 10 in cleaning crew Houston, Meng Ung struck and Bun was hitch by a loose trailer. The killed to its truck had a attached the trailer 1%" ball, 2" the than the ball for which rather designed, adequate trailer and lacked was safety pothole, the truck hit a chains. When came off. the trader accident, right lane At the time of the by orange highway was blocked steel Ung, sand. barrel barricades filled with along working the shoulder the barricaded road, clearing from was em- area debris ployed by petitioner Universal Services Com- (“Universal”), a contractor. pany state large Universal trucks at There were three site, bearing flashing sign each a arrow away Al- directing traffic from the workers. though Lyle Ung’s supervisor, being testified that the trucks were used as “buffer” or “shadow” trucks to shield the workers, the evidence most favorable to the the trucks were not verdict indicates positioned protection to afford from so as placed signs passing traffic. Universal advising motorists of in advance of the site Jackson, Price, George Lynne T. Mark T. ahead,” “sweepers but the record does not Liberato, Levy, Jeffrey T. Aleñe Ross No- or exact location of these disclose the number bles, Houston, petitioner. for signs. Ung wearing brightly colored Ung’s crew was Lewis, Glover, Houston, supplied vest James B. Arthur to be in the area for about respondents. for scheduled minutes, working only had been a few PHILLIPS, C.J., occurred. opinion of minutes when the accident delivered the Court, GONZALEZ, in which approximately two feet HIGHTOWER, HECHT, CORNYN, deep, passing to three inches wide and two ENOCH, Justices, OWEN, join. traffic. About way all the across the lanes of legally must determine whether suffi- We earlier, working year while eight months to a supports cient evidence area, in the same Strandlien had witnessed petitioner respon- caused the death loose after a vehicle hit another trailer come through gross negligence. dents’ decedent Fortunately, pothole. no one was the same appeals legally and The court of found both injured But it did make occasion. factually sufficient evidence to pothole, and he knew Strandlien aware of jury finding gross negligence. day it the that his crew was near conclude, however, the evi- We Ung’s death. legally support the dence is not sufficient to Universal, family Ung’s sued the State finding gross negligence. therefore Texas, the manufacturer of the trailer judgment reverse Although Ung was covered work- respondents take hitch. and render insurance, family his compensation nothing. ers’ damages necessary as a “reference sought punitive from Universal for were gross negligence, preempted gross negligence a claim not un- distinguishing from ordi- Compensation der the Act. See nary negligence.” Omitting Workers’ instruc- these (repealed by tions, art. 8306 according encouraged Tex.Rev.Civ.Stat. C.S., Leg., Acts 71st 2nd ch. to infer from evidence *3 1991). 16.01(7) (9), to Plaintiffs eff. Jan. only tending ordinary negligence. to establish subsequently settled with both the State and manufacturer, pro- argue
the hitch
and the case
Respondents
that Universal
only against
agree.
ceeded to trial
preserve
complaint.
failed to
Although
requested definitions of
Universal
trial,
charge
jury
At
the court’s
asked the
care,
negligence
ordinary
requests
and
these
1)
questions:
gross negli-
three
whether the
requested
were made at the same time as a
gence
any,
proximate
if
was a
regarding
negligence
issue
of various
2)
accident;
so,
appropri-
cause of the
if
Thus,
non-parties.1
apparent ei
it was not
3)
punitive damages;
ate amount
and
argument
the trial
ther from Universal’s
to
any punitive
in
manner which
award should
request
court or from the context of the
apportioned
plaintiffs.
be
between the
Be-
considered these definitions neces
Universal
Ung
compen-
cause
was covered workers’
sary
gross negligence
issue. The trial
insurance,
party requested,
sation
neither
easily
court could have
concluded that Uni
submit, questions
and the court did not
requested
desired the
definitions
versal
ordinary negligence
damages.
or actual
See
negligence question.
in
with the
connection
Co., Inc.,
Wright v.
726
&
Gifford-Hill
always necessary
party
it
for a
While
is
(Tex.1987).
S.W.2d 712
Universal unsuccess-
requested jury
explain
to
the reasons for
however,
fully requested,
negli-
that both
questions
pre
in order to
and instructions
gence
ordinary
and
care be defined for the
refused, in
requests
serve error if the
are
jury by instructions.
this ease we conclude that Universal’s re
grossly
found that Universal was
quest did not make clear to the trial court
negligent, assessing punitive damages of $2.6
present complaint
the nature of its
and thus
trial court
million dollars. The
rendered
Dep’t
preserve
did not
error. See State
on the
verdict.
235, 241
Highways
Payne,
v.
A divided court of
affirmed. The
(Tex.1992). Thus, we do not reach the issue
factually
legally
court found
and
sufficient
by failing
of whether the trial court erred
to
gross negligence,
it
evidence
and
conclud-
ordinary
negligence
and
submit definitions
punitive
ed that the
million
award was
$2.5
care.
not excessive.
II want of care which would raise the belief complained of was argues that the trial that the act or omission Universal first “negli of a conscious indifference to the by refusing to define the result court erred right persons “ordinary jury. or welfare of the gence” and care” for definitions to be affected it. contends that these Universal truck), question inquiring senger and the hitch manufacturer. requested about in the 1. Universal State, challenge court's negligence Universal does not the trial the driver of the truck, (who question. pas- to submit this the trailer was a refusal the owner of
641
Wal-Mart,
Walls,
See
negligence.
Royalty
gross
nent of
Burk
Co.
616
S.W.2d
868
at 327.
(Tex.1981).2
S.W.2d
recently empha
920
We have
gross negligence
the test for
con
respondents rely
sized that
on which
The evidence
subjective
objective
jury’s finding
and a
tains both an
may
as follows: Strandlien
be summarized
Transportation Ins. Co. v. Mor
See
prong.
pothole,
potential
knew about the
its
iel,
(Tex.1994);
Wal-
21-22
S.W.2d
danger, yet still allowed his crew work
Alexander,
Mart Stores Inc.
S.W.2d
taking
precau-
area
additional
without
Objectively,
the defen
trucks, although in-
The Universal
tions.3
“an extreme de
dant’s conduct must create
buffers,
properly posi-
as
were not
tended
Moriel,
22;
gree
risk.”
at
protect
the workers. Universal
tioned to
Wal-Mart, at 326. See also
*4
barriers,
put out
also did not
concrete
Industries,
Inc.,
v. Steves
Williams
699
traffic, as it
off an additional
lane of
close
(Tex.1985).
570,
component,
S.W.2d
573
also did not
might have done.4 Universal
magnitude and
being a function of both the
signs
flagperson
or a
to warn motor-
utilize
potential injury,
probability
is not
pothole or advise them to reduce
ists of the
merely
if the
conduct
satisfied
defendant’s
testimony
speed. There was
that
the ab-
injury;
possibility
creates a remote
of serious
warnings violated the Texas
sence of such
rather,
defendant’s conduct must create
Highway Department’s Manual on Uniform
injury”
plain
the “likelihood of serious
to the
Devices,
provides
which
stan-
Traffic Control
Moriel,
Subjectively,
at 22.
tiff.
controlling
Although
traffic.
Uni-
dards
actual, subjective
the defendant “must have
required by
versal was
its contract with
involved,
awareness of the risk
but neverthe
manual,
comply
to
with this
Universal
State
proceed in conscious
less
indifference to the
Jerry
provide
it to Strandlien.
Jas-
did
Moriel,
rights, safety, or welfare of others.”
manager,
per,
operations
former
Universal’s
simple negli
at 23. Evidence of
enough
that a
severe
to
testified
gence
prove
eompo- dislodge
trailers
an “ultra-
will not suffice to
either
two
constituted
slightly
going
2. A
different definition of
were
to have to work in this area where
provided by
is now
statute:
the debris was for about 30 minutes and that
you
negligence”
adjacent
spot
area was
to this bad
that
"Gross
means more than momen-
this
inadvertence,
tary thoughtlessness,
or error of
had seen the trailer come loose before?
judgment.
It means such an entire want of
morning
Yeah. I knew at the time in the
A:
care as to establish that the act or omission
working
going
what
were
to have to be
we
was the result of actual conscious indifference
here.
rights, safety,
to the
or welfare
that,
Q:
least for
30 minutes that
And
at
that
affected.
you anticipated
you
it
told us earlier that
41.001(5).
present
§
The
&
Tex.Civ.Prac.
Rem.Code
that
would have taken to clean the debris in
suit, filed before the effective date of section
area,
particular
you
barrelled-off
that
would be
41.001(5),
subject
statutory
is not
defini-
working
spot
you’d
this bad
where
seen
next to
20, 1995,
April
signed
tion. On
the Governor
eight months before?
the trailer come loose
legislation eliminating gross negligence as a ba-
spot
A: Correct.
I was aware of that. That
damages,
punitive
requiring
sis for
that all such
was there.
fraud,
or,
claims be based on either
malice
So,
certainly recognized
potential
Q:
you
cases,
wrongful
gross neglect.
death
See Act of
what
an accident or incident similar to
that
R.S.,
20, 1995,
19,
April
Leg.,
74th
ch.
you
eight
months before could occur
seen
(Vernon) (to
Tex.Sess.Law.Serv. 108
be codified
again.
a fair statement?
Is that
Chapter
as amendments to
Texas Civil Prac-
Code).
A: Correct. You never know.
requires
tice and Remedies
"Malice”
ei-
specific
injury,
to
ther a
intent
cause substantial
portable
disregard
degree
bar-
4.Strandlien
testified that
concrete
or a conscious
of an extreme
available,
gross neglect
The
been used
risk.
Id.
definition
riers were
and would have
mirrors the latter definition of malice. Id. This
in the
had the crew been scheduled to remain
legislation
September
time,
takes effect
period of
rather than
area for an extended
only
applies
that
on or
to causes of action
accrue
barrels,
had been
30 minutes. The
that date.
after
by
sometime earlier
someone other than Uni-
out
ongoing
with
road construc-
versal in connection
tion,
3. Strandlien testified as follows:
traffic,
not to
were intended
to direct
you
your survey
Q:
went
and did
When
shield workers from an errant vehicle.
morning,
you identify
you
that
did
the fact
incident,
unhitching
spe-
around which a crew earlier trailer
knew
hazardous situation”
precau-
cifically
risk
should not work without additional
extreme
but nonetheless
subjected
employees to it.
I dissent
tions.
majority’s holding
single
from the
that a
testimony
for some
We do not review
egregious prior incident is “no evidence” that
negligence
part
of mere
on the
evidence
employer
grossly negligent in
an
subse-
Universal,
gross
or for some evidence
quently exposing
employees
a similar
its
negligence
part
any
on the
other actor.
harm. The
was entitled
extreme risk of
sole concern is whether there is some
Our
enough.
than
to conclude
once was more
part of
evidence of
on the
Although
through
majority
departed
gener
from the
specific
hazards
a “no
al rule that to address
evidence”
road,
pothole in
facing Ung, including the
must take the evidence and inferences
we
there is no evidence that the risk created
disregard
favorable
conduct was so extreme as to
Alviar,
Universal’s
the rest. See Garza
injury.”
the “likelihood of serious
Al
create
states
though
ample
there is
evidence that
reviewing jury’s finding
gross
a
when
busy
inherently
alongside
highway
is an
something
negligence,
employ
must
more
we
dangerous occupation,
undisputed
it is
test, and would
than the “some evidence”
*5
Ung’s
working in an area barrelled
crew was
subjective
require a
test of “conscious indif
traffic,
period
of
off from
a scheduled
objective
ference” and an
test
that defen
minutes,
thirty
sign
about
with
trucks direct
degree
dant’s conduct created “an extreme
ing
away
area.
traffic
from the closed-off
Transportation
risk.” See
Ins. Co. Mor
though
adjacent pothole
previ
Even
the
had
iel,
10,
(Tex.1994);
21-22
Wal-
ously
at least one other trailer to
Alexander,
caused
Mart Stores Inc. v.
decouple,
as a matter of law is
this evidence
322,
entirely clarify
Without
“that entire want of
not sufficient
establish
objective
ing whether either the so-called
raise the belief that the act
care
would
degree
or the
“extreme
of risk” factor
sub
complained of
result of a
or omission
was the
jective
indif
“entire want of care —conscious
right or
conscious indifference to the
welfare
by
prong
unsupported
is
some evi
ference”
persons
by
to be affected
it.”
dence,
baldly
majority
concludes that
the
Royalty,
Burk
judgment and render huge pot- A volving a disconnected trailer. nothing. respondents take hole, repaired, known to exist still not was properly could infer that the there. The GAMMAGE, Justice, joined by potential danger supervisor SPECTOR, Justice, dissenting. “buffer” that area without the cans or wrong protection of construction obstruction plainly is to hold there devices, such as their trucks. There jury’s express other is no evidence to evidence, parked the trucks were behind finding gross negligence. The was evidence The foreman did not have light most favorable to the the workers. viewed protect the workers verdict, trucks moved forward to shows the risk was extreme crew moved forward. The “buff- supervisor, familiar with the when the and that employer to jury findings in order to allow an not moved and concrete barriers ers” were actions, escape liability for its unconscionable be- not erected to shield workers were area was to the scheduled work cause is some evidence
last 30 minutes. This an risk
of a conscious indifference to extreme harm.
of serious majority omits discussion of the testi-
mony employees of Uni- offered former they that “once general, In testified
versal. they never enough,” and that would COMPANY, Relator FORD MOTOR previous place in the location of a workers adequate protection. Mr. accident without LEGGAT, Bonnie The Honorable Little, safety supervisor a former for Uni- Judge, Respondent. versal, Jasper, former and Mr. Universal’s manager operations, testified that the acci- No. 94-0859. foreseeable, they dent was would Supreme of Texas. Court put near that had have workmen accident, placing caused the first Argued 1995. Feb. in that manner was workmen at site 22, 1995. Decided June “unreasonably dangerous” and “ultrahazar- dous,” and that Universal should have Rehearing Sept. Overruled flag person. warning signs out advance and a Searcy, supervisor a former for Univer-
Mr.
sal, given any testified that he was never read,
safety manuals to that he would not pothole.
have workmen near the testimony is also some evidence that major- grossly negligent. The
Universal was
ity’s conclusion that “once before is not
enough” to constitute evidence of usurps the function and creates
a standard for below what industry company, according and this
testimony employees, un- of its own former to be conscious indifference to an
derstood
ultrahazardous situation. legitimate no basis for this court
There is “super jury” nullify jury find-
to sit as a
ings it not like. The invades does jury’s province and function and substi- many findings. times
tutes its own fact How ignore foreman have had to
would the
danger to the crew for such action to consti- indiffer-
tute “some evidence” of conscious At what
ence? Two? Five? Ten? ultra- subjecting a worker to a known
would impermissible? I dis-
hazardous risk become precedent torture of
sent from this only apparent goal the nullification
as its