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Sears8/24/1995
m there is no evidence of gross negligence in this case. "Gross negligence" means more than momentary thoughtlessness, inadvertence, or error of judgment. TEX. CIV. PRAC. & REM. CODE ANN. 41.001(5) (Vernon Supp. 1995). It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected. Id.
Gross negligence involves two distinct components: 1) an act or omission by the defendant; and 2) the mental state of the defendant. Moriel, 879 S.W.2d at 21. The first part, the act or omission, must "involve behavior that endangers the rights, safety, or welfare of the person affected." Id. Objectively, the defendant's conduct must involve an act or omission that created an extreme degree of risk. Id. at 21-22. "Extreme risk is a function of both the magnitude and the probability of the anticipated injury to the plaintiff." Id. at 22. To support a gross negligence finding, the act or omission must be unjustifiable and likely to cause serious harm. Id. Whether or not the act or omission involves an extreme risk must be viewed from defendant's perspective without the benefit of hindsight. Id. at 23.
The second part, the mental state, requires a showing that the defendant was subjectively aware of the extreme risk created. Id. at 22. The evidence must establish the defendant's actual conscious indifference; merely raising the belief that conscious indifference might be attributable to a hypothetical reasonable defendant is insufficient. Id. at 20. "Entire want of care" does not mean that evidence of "some care" automatically precludes a finding of gross negligence; rather, "`entire want of care' must be understood in the context of the whole [gross negligence] [definition]." Id. (second alteration in original) (quoting Burk Royalty Co. v. Walls, 616 S.W.2d 911, 918 (Tex. 1981)). Thus, reviewing courts must look for evidence of the defendant's subjective mental state, rather than the exercise of care, because what lifts ordinary negligence into gross negligence is the attitude of the defendant. Moriel, 879 S.W.2d at 20. This subjective mental state may, however, be proven by either direct or circumstantial evidence. Id. at 23.
The Sears/Sunbeam Relationship
In order to review the record for evidence of gross negligence, we must examine the relationship between Sunbeam and Sears with regard to the model 10783 grill. Robin Maurice Johnson ("Johnson") worked for Sunbeam for twenty-four years and was the senior vice-president of sales and marketing for Sunbeam Outdoor Products at the time of trial. Johnson explained the production process of a Sunbeam grill manufactured for Sears.
Discussions about the manufacture of the 1988 Sunbeam models began in January 1987. In approximately May 1987, Sears met with Sunbeam to look over the proposed grills Sunbeam intended to offer to customers. From this line-up, Sears would select grills they were interested in selling, and the grills would be "Kenmorized" for inclusion in the Sears-Kenmore product line.
Generally, a prototype would be finalized in June or July of the same year and would be shown to the Sears merchandising staff. Once the Sears merchandising staff approved the prototype, the Sunbeam engineering department would test the prototype.
The Sunbeam engineering department was responsible for preparing the assembly instructions for the grill. The use and care manual was created separately, however. Because Sears had been in the business of selling gas grills for a number of years, use and care manuals already existed for the Kenmore line.
Thus, instead of starting fr
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