Universal Services Co. v. Huy Hieng Khaov Ung ( 1995 )

GAMMAGE, Justice,

joined by SPECTOR, Justice,

dissenting.

The majority is plainly wrong to hold there is no evidence to support the jury’s express finding of gross negligence. The evidence, viewed in the light most favorable to the jury’s verdict, shows the risk was extreme and that the supervisor, familiar with the earlier trailer unhitching incident, knew specifically of that extreme risk but nonetheless subjected the employees to it. I dissent from the majority’s holding that a single egregious prior incident is “no evidence” that an employer was grossly negligent in subsequently exposing its employees to a similar extreme risk of harm. The jury was entitled to conclude that once was more than enough.

The majority has departed from the general rule that to address a “no evidence” point we must take the evidence and inferences favorable to the jury verdict and disregard the rest. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). The majority states that when reviewing a jury’s finding of gross negligence, we must employ something more than the “some evidence” test, and would require a subjective test of “conscious indifference” and an objective test that defendant’s conduct created “an extreme degree of risk.” See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 21-22 (Tex.1994); Wal-Mart Stores Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.1993). Without entirely clarifying whether either the so-called objective “extreme degree of risk” factor or the subjective “entire want of care — conscious indifference” prong is unsupported by some evidence, the majority baldly concludes that “[e]ven though the adjacent pothole had previously caused at least one other trailer to decouple, this evidence as a matter of law is not sufficient.” This conclusory holding is not supported by precedent or the facts of this case. I would hold there is evidence to justify the jury verdict under both prongs of the majority’s test.

Ung’s supervisor, Lyle Strandlien, testified he had seen a similar accident at the same site approximately one year before also involving a disconnected trailer. A huge pothole, still not repaired, was known to exist there. The jury could properly infer that the supervisor was aware of the potential danger of working that area without the “buffer” protection of construction obstruction cans or other devices, such as their trucks. There was evidence the trucks were parked behind the workers. The foreman did not have the trucks moved forward to protect the workers when the crew moved forward. The “buffers” were not moved and concrete barriers were not erected to shield the workers because the scheduled work in this area was to last only 30 minutes. This is some evidence of a conscious indifference to an extreme risk of serious harm.

The majority omits discussion of the testimony offered by former employees of Universal. In general, they testified that “once was enough,” and that they would never place workers in the location of a previous accident without adequate protection. Mr. Little, a former supervisor of safety for Universal, and Mr. Jasper, Universal’s former manager of operations, testified that the accident was foreseeable, that they would not have put workmen near the pothole that had caused the first accident, that placing the workmen at that site in that manner was “unreasonably dangerous” and “ultrahazar-dous,” and that Universal should have put out advance warning signs and a flag person. Mr. Searcy, a former supervisor for Universal, testified that he was never given any safety manuals to read, but that he would not have put workmen near the pothole.

This testimony is also some evidence that Universal was grossly negligent. The majority’s conclusion that “once before is not enough” to constitute evidence of gross negligence usurps the jury’s function and creates a standard for gross negligence below what the industry and this company, according to testimony of its own former employees, understood to be conscious indifference to an ultrahazardous situation.

There is no legitimate basis for this court to sit as a “super jury” to nullify jury findings it does not like. The majority invades the jury’s province and function and substitutes its own fact findings. How many times would the foreman have had to ignore the danger to the crew for such action to constitute “some evidence” of conscious indifference? Two? Five? Ten? At what point would subjecting a worker to a known ultra-hazardous risk become impermissible? I dissent from this torture of precedent that has as its only apparent goal the nullification of jury findings in order to allow an employer to escape liability for its unconscionable actions,