Dyson v. Olin Corp.

The issue presented is whether the court of appeals, in disposing of the “insufficiency” point, erred in interpreting the elements of gross negligence as stated in Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981). Darrell Dyson sued the Olin Corporation after suffering personal injuries when the vehicle he was driving collided with a crane (“cherry-picker”), which was owned and operated by Olin. The trial court, based on the jury’s verdict, rendered judgment in favor of Dyson and awarded actual and punitive damages. The court of appeals determined that there was insufficient evidence to support the jury’s finding of Olin’s gross negligence and remanded for new trial, with one judge dissenting. 678 S.W.2d 650 (Tex.App.1984). We reverse the judgment of the court of appeals and remand the cause to that court.

The cherry-picker was parked on the side of the road and extended some four feet into Dyson’s lane. Dyson was attempting to pass the cherry-picker but ran into it when he swerved back into his lane to avoid oncoming traffic. The jury found Olin negligent in failing to do one or more of the following: (a) post a flagman; (b) erect barricades; and (c) provide flashing lights. Dyson was also found negligent in failing to keep a proper lookout and make timely application of his brakes. The jury determined Dyson to be 25 percent negligent and Olin to be 75 percent negligent. In addition, Olin was found to be grossly negligent in one or more of the following respects: failing to post a flagman, erect barricades, provide flashing lights and in leaving the cherry-picker on the road. Judgment was rendered in favor of Dyson and he was awarded $16,404.17 in compensatory damages and $115,000.00 in punitive damages.

The court of appeals sustained an insufficiency of the evidence point, challenging the jury’s findings of gross negligence. Initially, we recognize that this court does not have jurisdiction to review a point of error challenging factual insufficiency of the evidence. Tippett v. Brannon, 493 S.W.2d 511, 511 (Tex.1973); Tex.Rev. Civ.Stat.Ann. art. 1728 (Vernon Supp.1985). This court does, however, have jurisdiction to determine whether the court of appeals used the correct rules of law in reaching its conclusion. Harmon v. Sohio Pipeline Co., 623 S.W.2d 314, 315 (Tex.1981).

The court of appeals properly determined that an insufficiency of the evidence point required the intermediate appellate court to consider and weigh all the evidence and to reverse only if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). In addition, the court of appeals correctly stated the definition of gross negligence as follows:

The essence of gross negligence is not the neglect which must, of course, exist. What lifts ordinary negligence into gross negligence is the mental attitude of the defendant; that is what justifies the penal nature of the imposition of exemplary damages. The plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare and safety. In other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrated that he didn’t care. Such conduct can be active or passive in nature.

Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981).

The court of appeals, however, interpreted the Burk Royalty holding as “[sjtated another way, the Plaintiff must produce evidence to prove two elements: (1) the defendant knew of the existence of an unreasonable peril and (2) that defendant’s acts or omissions demonstrated he was indifferent to the safety of the plaintiff.” 678 S.W.2d at 657 (emphasis added). In applying the law to the facts, the court of appeals reviewed the evidence supporting the gross negligence finding, particularly Olin’s common practice of leaving the cherry-picker parked along the road partially obstructing one lane of traffic, and Olin’s failure to place warning signs or barricades. This was then balanced with evidence that the cherry-picker was parked in plain view during the daytime. The court also looked to the jury’s finding that Dyson failed to keep a proper lookout as evidence to support their conclusion that a driver, keeping a proper lookout, could have avoided the accident. The court of appeals concluded that Olin “under all the circumstances, did not know that parking the ‘cherry-picker’ in plain view created an unreasonable peril” and sustained the insufficiency point.

Burk Royalty does not require a new and independent examination of the unreasonable nature of the peril. Rather, the focus is on the mental attitude of the person charged and whether-acts or omissions by that person display a conscious and deliberate disregard for the interest or safety of others. Burk Royalty at 922; International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex.1985). The court of appeals injected an additional element of proof by re-evaluating the reasonableness of Olin’s conduct in determining the gross negligence issue.

The judgment of the court of appeals is reversed and the cause is remanded to that court for further proceedings consistent with this opinion.

ROBERTSON, J., concurs with opinion with which RAY, J., joins.

KILGARLIN, J., concurs with opinion.

. The trial court determined that Olin had failed to plead contributory negligence and, therefore, did not reduce Dyson's recovery. The court of appeals disagreed with the trial court’s interpretation of Olin’s pleadings and held that Dyson was given fair notice of the contributory negligence claim.