Williams v. Steves Industries, Inc.

• Decision Date: 13 November 1985
• Docket Number: No. C-3666,C-3666
• Citation: 699 S.W.2d 570
• Parties: Renee McCracken WILLIAMS et al., Petitioners, v. STEVES INDUSTRIES, INC., d/b/a Ingram Equipment Company, Respondent.
• Court: Texas Supreme Court

Page 570

699 S.W.2d 570

55 A.L.R.4th 1087

Renee McCracken WILLIAMS et al., Petitioners, v. STEVES INDUSTRIES, INC., d/b/a Ingram Equipment Company, Respondent.

No. C-3666.

Supreme Court of Texas.

Nov. 13, 1985.

Long, Burner & Cotten, Larry Parks and Tom Long, Austin, for petitioners.

Huson, Clark, Hooks, Stephenson & O'Connor, Hobart Huson, Jr., San Antonio, for respondent.

CAMPBELL, Justice.

This case arises from a collision of a truck owned by Steves Industries and a car driven by Renee McCracken Williams. Mrs. Williams was injured and her two minor children were killed in the accident. Mrs. Williams and her husband, Kenneth Williams, sued Steves Industries for personal injuries Mrs. Williams suffered as well as wrongful death and survival actions for the deaths of their two children. Tex.Rev.Civ.Stat.Ann. art. 4671 (Vernon Supp.1984) (Wrongful Death Act); Tex.Rev.Civ.Stat.Ann. art. 5525 (Vernon 1958) (Survival Act). The Williamses alleged that Steves Industries was negligent and grossly negligent in allowing its employee, Robert Robinson, to drive the truck. The jury found Steves Industries both negligent and grossly negligent and awarded $250,000 in punitive damages. The trial court disregarded the jury's findings of gross negligence and limited the award to actual damages. The court of appeals affirmed the judgment of the trial court in part and reversed and rendered in part. 678 S.W.2d 205 (Tex.App. 3 Dist.1984). We affirm the judgment of the court of appeals.

On July 30, 1981, Mrs. Williams was driving her car on a four-lane segment of Interstate 35 in Austin. Her two children were riding in the back seat. The car ran out of gas and stalled in one of the center lanes. Mrs. Williams restarted the car but continued only a short distance before it stalled again. There was testimony the car was hidden from the view of approaching traffic by shadows of an overpass. Robinson, who was driving an eight-ton equipment repair truck owned by Steves Industries, hit Mrs. Williams' car from behind. Mrs. Williams and her children were injured and the children died from those injuries.

The Williamses seek to recover punitive damages under a theory of negligent entrustment. The Williamses argue there is some evidence to support the jury's finding that Steves Industries was grossly negligent in entrusting the truck to Robinson. The elements of negligent entrustment are: (1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, incompetent, or reckless; (4) that the driver was negligent on the occasion in question; and (5) that the driver's negligence proximately caused the accident. Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587, 591 (1947).

Punitive damages may be awarded against the owner of a vehicle if the driver was unfit and the owner was grossly negligent in entrusting the vehicle to the driver. Montgomery Ward and Co. v. Marvin Riggs Co., 584 S.W.2d 863 (Tex.Civ.App.--Austin 1978, writ ref'd n.r.e.); See North Houston Pole Line Corp. v. McAllister, 667 S.W.2d 829 (Tex.Civ.App.--Houston [14th Dist.] 1983, no writ); Webster v. Carson, 609 S.W.2d 850 (Tex.Civ.App.--Houston [14th Dist.] 1980, no writ); Southwestern Bell Telephone Co. v. Davis, 582 S.W.2d 191 (Tex.Civ.App.--Waco 1979, no writ); Cf. King v. McGuff, 149 Tex. 432, 234 S.W.2d 403 (1950) (punitive damages for negligent hiring recoverable if agent was unfit and the principal was reckless in employing him).

The act of negligence in this case was allowing Robinson to drive the equipment repair truck. Our question is whether there is some evidence of gross negligence. In answering this question, we review the law of other states and Texas law.

Courts in other jurisdictions use a wide variety of language to describe conduct constituting gross negligence. Tests for gross negligence fall into two general catagories. These tests are distinguished by the importance placed on the mental attitude of the defendant. Some courts define gross negligence as conduct which exhibits "an entire want of care." Annot. 98 A.L.R. 267, 268. These courts attempt to distinguish gross negligence as being different in degree from ordinary negligence. W. Keeton et al., Prosser and Keeton on the Law of Torts, § 34 at 212 (5th ed. 1984). Other courts define gross negligence as "reckless disregard for the rights and safety of others." Annot. 98 A.L.R. 267 at 269. This test focuses on the nature and quality of the conduct requiring that the defendant be conscious of a very high degree of risk. Prosser and Keeton, supra, § 34 at 212-13.

Most states that have used the "entire want of care" definition have applied the elements required under the "reckless disregard" test. Williamson v. McKenna, 223 Or. 366, 354 P.2d 56 (1960). As a result the two definitions have tended to merge "and take on the same meaning, of an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care." Prosser and Keeton, supra, § 34 at 214. Regardless of the language, in almost all jurisdictions the distinguishing factor between negligence and gross negligence is the degree of risk of which the defendant was aware or should have been aware:

Although, with some exceptions, there is no precise uniformity among the terms used by all jurisdictions to describe the character of the conduct on the part of a defendant which will justify a punitive or exemplary damage award, an analysis of the authorities clearly indicates a conceptual uniformity among all jurisdictions. The conduct which the varying terms are used to describe is generally of two distinct types. The first type is that in which the defendant desires to cause the harm sustained by the plaintiff, or believes that the harm is substantially certain to follow his conduct. With the second type of conduct the defendant knows, or should have reason to know not only that his conduct creates an unreasonable risk of harm, but also that there is a strong probability, although not a substantial certainty, that the harm will result but, nevertheless, he proceeds with his conduct in reckless or conscious disregard of the consequences. Neither form of conduct, therefore, involves mere inadvertance or what, in the traditional tort sense, would be called ordinary negligence.

J. Ghiardi and John J. Kircher, Punitive Damages: Law and Practice, § 5.01 (rev. 1984).

The Texas definition of gross negligence is, "that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it." Burk Royalty Co. v. Walls, 616 S.W.2d 911, 920 (Tex.1981). The Texas definition is a hybrid definition, distinctive to this state and unusual by comparison to the law of other states. It combines both of the traditional tests for gross negligence. Comment, Exemplary Damages for Gross Negligence: A Definitional Analysis, 33 Baylor L.Rev. 619, 622 (1981). Until our decision in Burk Royalty Co. v. Walls, this court most often emphasized the "entire want of care" element of the definition of gross negligence. See Burk Royalty, 616 S.W.2d at 916-19. We defined "entire want of care" as a negative absolute-the absence of any care. Id. In addition, we used the "some care" standard to review a no evidence point. Id. at 918-19. Since Burk Royalty we have continued to emphasize the "conscious indifference" component. International Armament Corp. v. King, 686 S.W.2d 595 (Tex.1985); Trenholm v. Ratcliff, 646 S.W.2d 927, 933 (Tex.1983).

We held in Burk Royalty that the defendant's state of mind distinguishes gross negligence from negligence; however, we also recognized that a test requiring the plaintiff to prove gross negligence by direct evidence of a defendant's subjective state of mind would leave outrageous conduct unpunished. Therefore, we held that "[a] mental state may be inferred from actions. All actions or circumstances indicating a state of mind amounting to a conscious indifference must be examined in deciding if there is some evidence of gross negligence." Burk Royalty, 616 S.W.2d at 922. We reaffirm our holding in Burk Royalty that the plaintiff need not prove the defendant's subjective state of mind by direct evidence.

Thus, the test for gross negligence is both an objective and a subjective test. A plaintiff may prove a defendant's gross negligence by proving that the defendant had actual subjective knowledge that his conduct created an extreme degree of risk. In addition, a plaintiff may objectively prove a defendant's gross negligence by proving that under the surrounding circumstances a reasonable person would have realized that his conduct created an extreme degree of risk to the safety of others.

No exact line can be drawn between negligence and gross negligence. However, the character of the actual act required is determined by the terms used to define gross negligence: "conscious indifference" denotes a decision, in the face of an impending harm to another party, to not care about the consequences of the act which may ultimately lead to that harm. Burk, 616 S.W.2d at 922; Ogle v. Craig, 464 S.W.2d 95 (Tex.1971). If the situation is one in which the act would reasonably be thought to be highly dangerous, the courts have not hesitated to allow punitive liability upon a finding of gross negligence. See, Kraus v. Alamo National Bank of San Antonio, 586 S.W.2d 202 (Tex.Civ.App.--Waco 1979), affirmed, 616 S.W.2d 908 (1981) (building under demolition known to exist as dangerous condition); Wilson N. Jones Memorial Hospital v. Davis, 553 S.W.2d 180 (Tex.Civ.App.--Waco 1977, writ ref'd n.r.e.) (employment history of hospital orderly not checked prior to allowing him to render medical services to patients); Claunch v. Bennett, 395 S.W.2d 719 (Tex.Civ.App.--Amarillo 1965, no writ) (ninety mile...