Otis Elevator Co. v. Joseph
| Citation | 749 S.W.2d 920 |
| Decision Date | 14 April 1988 |
| Docket Number | No. 01-87-00031-CV,01-87-00031-CV |
| Parties | OTIS ELEVATOR CO., Appellant, v. Jessie L. JOSEPH, Appellee. (1st Dist.) |
| Court | Court of Appeals of Texas |
Marie R. Yeates, D. Ferguson McNiel, Vinson & Elkins, Houston, for appellant.
Richard P. Hogan, Jr., Fisher, Gallagher, Perrin & Lewis, Houston, for appellee.
Before JACK SMITH, COHEN and HOYT, JJ.
In this worker's compensation, wrongful death action, the jury found that the appellant's gross negligence caused Donald Joseph's death. Based on the jury findings, the judge awarded exemplary damages of $175,000 to the appellee.
The appellee's husband, Donald Joseph, was killed while in the course and scope of his employment with the appellant. The deceased was installing an elevator for the appellant. While he was underneath the elevator, it moved downward and crushed him. Finding that the appellant had been grossly negligent and that this negligence was the proximate cause of the accident, the jury determined that the deceased's actions caused 65% of the damages and that the appellant's actions caused 35% of the damages. The jury, in a separate issue, found that actual damages occurred.
In its first and second points of error, the appellant contends that the trial court erred both in awarding the appellee exemplary damages, when the jury found the appellee's husband to be 65% at fault, and in failing to submit issues as to the appellant's ordinary negligence.
This Court has recently held that a "percentage finding of contributory negligence will not reduce punitive damages by the percent of the contributory negligence." Turner v. Lone Star Indus., Inc., 733 S.W.2d 242, 244 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.). This holding is premised on the concept that the primary purpose of punitive damages is not to compensate the plaintiff, but to punish the defendant and to set an example for others. Anderson v. Trent, 685 S.W.2d 712, 714 (Tex.App.--Dallas 1984, writ ref'd n.r.e.).
Although Tex.Civ.Prac. & Rem.Code Ann. § 33.001 (Vernon Supp.1988) bars recovery of actual damages by a plaintiff who is more than 50% negligent in a negligence action, that section does not apply to worker's compensation actions. Tex.Civ.Stat.Ann. art. 8306, § 3(a) (Vernon 1967) (under the Worker's Compensation Act, an employee waives a right of recovery in negligence, but not on gross negligence resulting in the worker's death).
The appellant further contends that the trial court erred in failing to submit issues on its ordinary negligence. The Texas Supreme Court has recently rejected the appellant's contention in Wright v. Gifford-Hill & Co., 725 S.W.2d 712 (Tex.1987). The trial court was correct in refusing to submit the appellant's issues inquiring about its ordinary negligence.
However, the trial court erred in submitting ordinary negligence issues, over timely objection, inquiring about the appellee's activities. In Wright, the court stated: Id. at 714. (citation omitted).
The appellant contends also that the trial court erred in awarding the appellee exemplary damages when the jury found the appellee's husband to be 65% at fault.
The trial court's charge inquired about the appellant's gross negligence and the appellee's negligence. The jury answered in the affirmative to each issue and also found in separate issues that each of the parties' actions was a proximate cause of the incident in question.
Predicated upon an affirmative finding to the above issues, the court asked the jury to answer the following issue:
Find the percentage of damage, if any, caused by the conduct of the following parties.
The percentage of damages attributable to a party is not necessarily measured by the number of acts or omissions found.
Answer by stating the percentage, if any, opposite each name.
Answer: Donald Joseph %
----
Otis Elevator Company %
----
Total 100%
----
The jury found Joseph 65% at fault and Otis Elevator 35% at fault.
The appellee's objection to the issue was that "it asks the jury to compare ordinary negligence with gross negligence."
We conclude, for two reasons, that the court improperly submitted the comparative negligence issue. First, because the trial court erred in submitting an issue on the appellee's ordinary negligence; there was no necessity for the comparative fault issue because there would have been nothing to compare to the appellant's gross negligence. Secondly, "gross negligence" inquires about intent, i.e., "conscious indifference," while ordinary "negligence" inquires about "ordinary care," regardless of intent. Because "negligence" and "gross negligence" are different theories on which a recovery may be obtained, and because a recovery under either theory depends on separate and distinct elements of proof, the two are not comparable.
We find that the trial court correctly awarded the appellee exemplary damages, and correctly refused to submit issues on the appellant's negligence.
The appellant's first and second points of error are overruled.
In its third, fourth, and fifth points of error, the appellant contends that the evidence was legally insufficient or, alternatively, that the evidence was factually insufficient to support the submissions of, or the jury's answers to, special issues two, three, and nine. Special issue number two asked whether the appellant's failure to provide the deceased with a safe control box was gross negligence; special issue number three asked whether such gross negligence was the proximate cause of the decedent's death; and special issue number nine asked what amount of money, if any, should be assessed against the appellant as exemplary damages.
In determining "no evidence" points, we consider only the evidence and inferences that tend to support the finding, and we disregard all evidence and inferences to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Legal insufficiency points of error must 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. Commonwealth Lloyd's Ins. Co. v. Thomas, 678 S.W.2d 278, 288 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.).
In reviewing all questions of "factual sufficiency," we consider and weigh all the evidence, in support of and contrary to the challenged finding. The finding must be upheld unless we find that the evidence is so weak or the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. In re King's Estate, 150 Tex. at 662, 244 S.W.2d at 660; Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex.App.--Houston [1st Dist.] 1987, no writ).
We may not substitute our opinion for that of the trier of fact merely because we might have reached a different fact conclusion. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951); Thompson v. Wooten, 650 S.W.2d 499, 501 (Tex.App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.). Further, the trier of the fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Rego v. Brannon, 682 S.W.2d 677, 680 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).
The test for gross negligence is both objective and subjective; a plaintiff may prove a defendant's gross negligence by showing that: 1) the defendant had actual subjective knowledge that his conduct created an extreme degree of risk; or 2) under the surrounding circumstances, a reasonable person would have realized that his conduct created an extreme degree of risk to the safety of others. Williams v. Steves Indus., Inc., 699 S.W.2d 570, 573 (Tex.1985).
Evidence adduced at trial indicates that the decedent was under the elevator when the temporary control box fell. This fall caused the electrical circuit to close, activating the elevator and causing it to move unexpectedly downward, crushing the decedent.
Mr. D.D. Bailey, the elevator mechanic in charge of the building site where the accident occurred, stated that his investigation into the cause of the accident indicated that the control box fell about four to five feet. This caused the contacts inside the box, held by spring-clips, to complete the electrical circuit and activate the elevator. Mr. Bailey stated that this movement occurred because the stop button on the control box had not been activated properly.
Otis safety regulations required the stop button to be pushed while work on the elevator was in progress, but Mr. Bailey admitted that, at times, even he failed to push the button. More importantly, Mr. Bailey stated that it was foreseeable that an employee working on the elevator would fail to do so.
John Donnelly, testifying as an expert for plaintiff, stated that the control box that Otis used during construction was not designed for use as a temporary box. He stated that the box was designed for the purpose of running the elevator, while standing on top of the cab, during elevator inspections.
Mr. Donnelly also...
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