Texas Employer Not Liable for Gross Negligence After Heat-Related Death

A Texas appellate court recently affirmed a trial court’s summary judgment in favor of an employer in a gross negligence action filed against it by the family of a worker who died of a heart attack at home several hours after working hard under strenuous, hot conditions [Niño v. Primoris Energy Servs. Corp., 2019 Tex. App. LEXIS 5757 (July 10, 2019). The appellate court acknowledged that the exclusive remedy provision of the state’s workers’ compensation law did not apply when the employee’s injury or death was caused by an intentional act or omission of the employer or by the employer’s gross negligence. It agreed with the trial court, however, that the family’s allegations of gross negligence were insufficient.

Background

On the day of the fatal incident, Niño, who worked for Primoris, worked with three other employees to change filters inside a vessel at a natural gas facility. At various times during the work day, which began about 10:00 a.m. and concluded about 5:30 p.m., the workers labored inside the vessel and were required to wear protective clothing and respirator equipment. The protective gear was described as heavy and hot. During the day, the crew took several water breaks and had lunch.

Near the end of the day, Niño went to a truck to rest. He was sweating heavily and told a supervisor that his vision was blurry and that he had tripped and fallen to the ground. He was transferred to an air-conditioned vehicle, provided with additional water. The incident was reported. Evidence indicated Niño was repeated asked if he wanted to go to the hospital or to a doctor and Niño refused.

One worker drove Niño home—an almost three hour trip. Niño appeared to talk without difficulties. They stopped 45 minutes into the trip at a convenience store, where Niño consumed a Gatorade and ate a banana. Niño was again offered medical assistance with the vehicle reached his house and he again refused. While showering a short time later, however, Niño collapsed and died from a heart attack. Niño’s family sued the employer for gross negligence and the trial court granted Primoris’ no-evidence motion for summary judgment.

Gross Negligence: Both an Objective and Subjective Component

The appellate court noted that gross negligence, as used in this context, had both an objective and a subjective component. Under the objective element, an extreme risk is not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the worker. In order to establish the subjective element, the plaintiff must show that the defendant employer knew about the peril, but the employer’s actions demonstrated that it did not care.

The Niño family contended Primoris was grossly negligent in failing to take Niño to the hospital for medical treatment. Indeed, the summary judgment evidence tended to show that the co-employees believed Niño was suffering from heat stress.

No Evidence of the Subjective Component

The appellate court stressed that while the evidence established that Primoris knew, through its employees, that Niño was potentially suffering from heat stress, no evidence established that the acts or omission of the Primoris employees demonstrated that they did not care. Instead, the evidence conclusively established that Primoris’s employees took precautions and repeatedly offered Niño medical assistance—which he repeatedly declined, and Niño appeared to be tired, but fine, when he was dropped off at his house. In as much as the Niño family had failed to establish Primoris Energy’s gross negligence, the trial court did not err in granting summary judgment in favor of Primoris.