Texas Gross Negligence Statute Requires Showing of Both Objective and Subjective Elements

Construing Tex. Lab. Code Ann. § 408.001(b), which provides that the exclusive remedy provision of the Texas Workers’ Compensation Act does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of a deceased employee whose death was caused by the employer’s gross negligence, a Texas appellate court reversed a trial court’s judgment awarding such damages and post-judgment interest to the surviving spouse of a worker who died from mesothelioma [Bell Helicopter Textron, Inc. v. Dickson, 2019 Tex. App. LEXIS 7615 (Aug. 23, 2019)]. Noting that gross negligence consisted of both objective and subjective elements, the court agreed that the plaintiff had presented no evidence that the defendant had actual, subjective awareness of the risk involved in the deceased’s work, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of the deceased.

Background

The deceased, who worked as an engineer for Bell Hellicopter (“Bell”) from 1962 to 1968, did not perform any hands-on work with asbestos-containing materials, but supervised others who built testing enclosures that he designed. Because of union rules, the deceased was not allowed to touch any tools. As a result, the deceased was a bystander to the work performed by others in constructing enclosures for testing work. His exposure was intermittent, occurring several times per month during the six years of his employment. The enclosures were constructed of asbestos-containing millboard. While there was no exposure due to the millboard in its completed form, significant exposure occurred during the cutting of the boards for use in the construction of the enclosures.

Objective Component of Claim

The court initially observed that gross negligence consisted of both objective and subjective elements, that the plaintiff must prove by clear and convincing evidence that (1) when viewed objectively from the defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others and (2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.

The court then added that under the objective component, “extreme risk” was not a remote possibility or even a high probability of minor harm, but rather the likelihood of the employee’s serious injury. Moreover, the risk must be examined prospectively from the perspective of the actor, not in hindsight.

Subjective Component of Claim

On the other hand, the subjective prong required that the defendant know about the risk, but that the defendant’s acts or omissions demonstrated indifference to the consequences of its acts. In essence, said the court, the surviving spouse here was required to establish that Bell was aware that the cutting of boards and the deceased employee’s supervision of the construction of enclosures posed an extreme degree of risk and that Bell had actual, subjective awareness that the deceased could develop mesothelioma as a result of supervising the construction, but nevertheless proceeded to allow him to supervise the construction.

Testimony Before His Death

Here, the deceased employee testified before his death that he did not become aware of the presence of asbestos in the millboard until a few years prior to his testimony. The plaintiff offered no evidence that Bell was aware that the cutting of the boards and the deceased’s supervision of the construction of enclosures posed an extreme degree of risk. Nor was there any evidence that Bell had actual, subjective awareness that the deceased could develop mesothelioma as a result of supervising the construction but nevertheless proceeded to allow him to supervise the construction. All the studies relied upon by the plaintiff’s experts were conducted after the relevant 1962 to 1968 time frame and were, therefore, no evidence of Bell’s awareness of extreme risk posed by cutting the boards between 1962 and 1968. Bell could not be liable for exemplary damages, based on that evidence, and the trial court’s judgment was reversed. The court rendered judgment that plaintiff take nothing on the claims.