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Louisiana Pacific Corporation v. Gill3/23/2000
na Pacific's contentions as presented in issue two.
We next consider the issue of whether the evidence is legally sufficient to support an award of exemplary damages. In determining a no-evidence point, we are to consider all of the evidence in the light most favorable to the party in whose favor the verdict has been rendered, and to indulge every reasonable inference from the evidence in that party's favor. See Formosa Plastics Corp. v. Presidio Engineers and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). A "no-evidence" point may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
An act of "gross neglect" in wrongful death actions is an act or omission which, when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. Tex. Civ. Prac. & Rem. Code Ann. §§ 41.001(7)(B), 41.003(a)(3) (Vernon 1997); Tex. Lab. Code Ann. § 408.001(c) (Vernon 1996). The burden of proof of gross negligence is clear and convincing evidence. Tex. Civ. Prac. & Rem. Code Ann. § 41.003(b) (Vernon 1997).
The test for gross negligence contains both an objective and a subjective component. See Transportation Insurance Company v. Moriel, 879 S.W.2d 10, 21-22 (Tex. 1994). The defendant's conduct must involve an extreme degree of risk, a threshold significantly higher than the objective "reasonable person" test for negligence. Id. at 22. Extreme risk is a function of both the magnitude and the probability of the anticipated injury to the plaintiff. Id. The "extreme risk" prong is not satisfied by a remote possibility of injury or even a high probability of minor harm, but rather "the likelilhood of serious injury" to the plaintiff. Id.
Henry Land testified that he was employed by Louisiana Pacific at the time of Benjamin Gill's death in December, 1995. He stated that on that occasion there was a problem with the log hauler out in the wood yard because a chain was coming off the sprocket. He indicated that others present at the time of Gill's death told him that after Gill had turned the circuit breaker off of the machine before he began working on it, another worker pulled the circuit breaker back on, causing Gill's death when he became caught in the chain. According to Land, the worker, thinking the circuit breaker had just tripped out, went into the control room to turn it on. The incoming supervisor whom Gill had told about turning off the breaker was talking with workers who were getting off work at the time of Gill's death.
Land indicated that Louisiana Pacific had no procedures for training employees what to do when a circuit breaker was thrown. He indicated that after the incident Louisiana Pacific tried to get its employees to sign documents saying that they had training they had not received.
We hold that the evidence is legally sufficient to support the award of exemplary damages. Louisiana Pacific argues that it is not sufficient. This cause is to be remanded because the trial court abused its discretion by not granting its
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