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Sears8/24/1995
st show that appellants were "consciously indifferent." Moriel, 879 S.W.2d at 25. The question is whether Sears and Sunbeam were actually aware of an extreme risk -- some genuine and unjustifiable likelihood of serious harm to the appellees and were consciously indifferent to the risk. Id.
Our review of the record shows that appellees produced no witnesses who testified that Sears had knowledge of the danger of storing a spare cylinder under the grill at the time the use and care manual for the grill in question was finalized. Further, appellees do not cite any place in the record for their assertion that Sears had knowledge of any prior accidents of this type or of warnings from authorities in the industry. Further, we find no circumstantial evidence, and appellees point to none, which indicates that Sears had actual knowledge of the risk. After reviewing the record in the light most favorable to the verdict for objective evidence that Sears was actually aware that its conduct involved an act or omission that created an extreme degree of risk, we find no evidence in the record, and appellees have cited none, supporting the conclusion that Sears had actual awareness of the risk created by failing to warn consumers about the danger of storing spare cylinders under the grill body. See Moriel, 879 S.W.2d at 22. Accordingly, we find the evidence legally insufficient to support a finding of gross negligence against Sears and reverse the exemplary damage award entered against Sears.
Regarding the gross negligence finding against Sunbeam, we first review the record in the light most favorable to the verdict for evidence of an act or omission, that created an extreme degree of risk to appellees. Id. at 21-22. First, the record establishes that Sunbeam was aware of the danger of storing a spare cylinder under the grill body, but failed to include or suggest inclusion of a specific warning against this practice in the Kenmore use and care manual. The record shows that Sunbeam was cognizant enough of the hazard to put a warning in their own manual and to issue a press release, yet Sunbeam failed to suggest or push for the inclusion of the warning in the Kenmore use and care manual. Although final decisions on how the Kenmore manual was to read were to be made by Sears, the record supports the conclusion that the Kenmore use and care manual was reviewed by Sunbeam engineers for their suggestions, Sears relied on Sunbeam for information on what should be included in the manual, and Sunbeam was aware of Sears' reliance. Second, Sunbeam was aware of the danger of storing a spare propane cylinder under the grill body, but took no action to "design out" the flaw that made owners view the grill body as the natural place to store the spare. Further, the danger of having a spare cylinder of propane stored under the grill explode while someone was using the grill constituted an extreme degree of risk. This constitutes more than a mere scintilla of evidence supporting the conclusion that Sunbeam's actions created an extreme degree of risk to appellees.
Next we review the record in the light most favorable to the verdict for evidence of appellant's mental state. The record must show that Sunbeam was subjectively aware of the extreme risk created. Id. at 22. The record reveals that Sunbeam was aware of the danger of storing spare cylinders under the grill body as early as 1986. Duncan, a Sunbeam employee, testified that he attended meetings of the AGA and ANSI which specifically encouraged the use of warnings against storing spare propane tanks under grills. In addition, Long testified that Sunbeam was alerted to his accident sometime after July 19, 1987, and Sunbeam admitted learning about the "Davis accident
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