Reversed and Remanded, and Majority and Concurring and Dissenting 

Opinions filed June 30, 2015. 

In the

Fourteenth Court of Appeals

NO. 14-13-00352-CV

BP OIL PIPELINE COMPANY, Appellant

V.

PLAINS PIPELINE, L.P., Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2011-39550

CONCURRING AND DISSENTING OPINION

Shakespeare wrote, “What’s in a name? That which we call a rose by any 

other name would smell as sweet.”1

 The majority, however, seems to reject this 

notion. I agree with the majority that the trial court erred in granting Plains’s 

motion for summary judgment. However, because I believe that the trial court 

erred in denying BP’s motion for summary judgment, whether construed as a no-

 

1 William Shakespeare, Romeo and Juliet, act 2, sc. 2, line 43. 
2 

evidence or traditional motion, I respectfully dissent. 

Among the many pleadings filed by the parties in this matter is an 

instrument styled, “BP’S RESPONSE IN OPPOSITION TO PLAINS’ 

AMENDED MOTION FOR SUMMARY JUDGMENT AND BP’S AMENDED 

CROSS-MOTION FOR SUMMARY JUDGMENT.” Within that filing, after 

discussing and providing authority for the two distinct objective and subjective 

elements of gross negligence (and of willful misconduct), BP asserted that there 

was no evidence of either element: “Plains must demonstrate a ‘specific intent’ on 

the part of BP to cause ‘substantial injury.’ Of course no such evidence exists.” 

(Emphasis added.) BP also specifically contended that Plains provided only 

assertions of BP’s intent “without any evidence whatsoever” (emphasis added). 

This language is contained within the section of BP’s motion providing argument 

and authorities regarding BP’s position that “Plains has no evidence that BP 

engaged in any gross negligence or willful misconduct.”

Based on the language and substance of BP’s amended cross-motion for 

summary judgment, I believe that BP sufficiently asserted no-evidence grounds 

under rule 166a(i) as to gross negligence with regard to BP’s “specific intent,” or 

the subjective element of gross negligence, and with regard to “substantial injury,” 

or the objective element. See Chrismon v. Brown, 246 S.W.3d 102, 120–21 (Tex. 

App.—Houston [14th Dist.] 2007, no pet.) (supp. majority op.) (discussing Binur 

v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004), and rejecting position on 

rehearing that no-evidence ground attacking duty was not raised in motion despite 

lack of words “no evidence” in title or headings of motion, lack of citation to rule 

166a(i) or otherwise to no-evidence standard of review, movant’s attaching and 

citing to evidence, and other grounds asserted in motion were traditional). 
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Because BP sufficiently asserted that “Plains has no evidence that BP 

engaged in any gross negligence or willful misconduct,” and because the 

Agreement expressly imposes the burden of proof as to gross negligence on Plains,

the burden shifted to the nonmovant Plains. See Tex. R. Civ. P. 166a(i); Chrismon, 

246 S.W.3d at 114 n.12. Accordingly, Plains had to meet its burden to present 

evidence that raised a genuine fact issue as to the two challenged elements of gross 

negligence. See Tex. R. Civ. P. 166a(i) & 166a cmt. to 1997 change. If Plains 

failed to provide enough evidence as to either element of BP’s alleged gross 

negligence to be entitled to a trial, then the trial court was required to grant the noevidence motion. See Burroughs v. APS Int’l, Ltd., 93 S.W.3d 155, 159 (Tex. 

App.—Houston [14th Dist.] 2002, pet. denied). In applying the legal-sufficiency 

standard of review, our task is to determine whether the nonmovant produced any 

evidence of probative force to raise a fact issue on the material questions 

presented. Id. at 159–60. While the nonmovant need not marshal its proof, it must 

bring forth more than a scintilla of evidence. Tex. R. Civ. P. 166a(i); Ford Motor 

Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of 

evidence exists when reasonable and fair-minded people could differ in their 

conclusions, while less than a scintilla of evidence exists when the evidence merely 

creates a surmise or a suspicion of a fact. King Ranch, Inc. v. Chapman, 118 

S.W.3d 742, 751 (Tex. 2003).

Even considering the evidence in the light most favorable to Plains and 

indulging every reasonable inference and resolving all doubts in its favor, Timpte 

Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009), I cannot conclude that 

Plains presented more than a scintilla of probative evidence to raise a genuine issue 

of material fact as to the objective component of gross negligence. Plains did not 

provide more than a scintilla of evidence to show that, when viewed objectively 
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from BP’s standpoint at the time, BP’s acts or omissions related to the 

construction, operation, maintenance, repair, expansion, management, use, or 

ownership of the pumping station land (and disclosures related to such land) 

departed from the ordinary standard of care to such an extent that they created an 

extreme risk, one likely to cause serious injury to G&M, or for that matter, Plains. 

See Transp. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994) (objective element of 

gross negligence means “viewed objectively from the standpoint of the actor, the 

act or omission must involve an extreme degree of risk, considering the probability 

and magnitude of the potential harm to others”); Chrismon, 246 S.W.3d at 107

(citing Moriel, 879 S.W.2d at 23); see also Boerjan v. Rodriguez, 436 S.W.3d 307, 

312 (Tex. 2014) (concluding trial court properly granted no-evidence summary 

judgment as to objective element of gross negligence); Seber v. Union Pac. R.R. 

Co., 350 S.W.3d 640, 655 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (same); 

Aguirre v. Vasquez, 225 S.W.3d 744, 756 (Tex. App.—Houston [14th Dist.] 2007, 

no pet.) (same). 

Even if BP’s motion is more appropriately construed as a traditional motion 

for summary judgment, which the majority concludes is the proper reading, I 

disagree with the majority that BP did not satisfy its burden of proving as a matter 

of law that the losses did not result from, relate to, or arise out of gross negligence. 

(Majority op. at 29, 33.) I believe that BP has conclusively shown there is no 

genuine issue of material fact on the objective component of gross negligence such 

that BP is entitled to judgment as a matter of law on its declaratory judgment 

indemnity claim. See Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Moreover, where 

both BP and Plains have brought forth extensive summary judgment evidence, I 

believe that the differing burdens of proof are immaterial and the ultimate issue is 
5 

whether a fact question exists. See Neely v. Wilson, 418 S.W.3d 52, 59 (Tex.

2013); Cohen v. Landry’s Inc., 442 S.W.3d 818, 824 (Tex. App.—Houston [14th 

Dist.] 2014, pet. denied). Further, we should determine this issue in the interest of 

judicial economy. See Neely, 418 S.W.3d at 60; Cohen, 442 S.W.3d at 823–24. 

On this summary-judgment record, the very record on which Plains asserted 

that it was entitled to summary judgment because BP was obligated to indemnify 

Plains for BP’s own misconduct based on the contract, I believe reasonable, fairminded people could only conclude that BP’s actions or omissions related to the 

use and ownership of the pumping station were not “highly dangerous,” such that 

BP’s conduct was at most deserving of restitution as opposed to punishment. See

Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993). The 

Supreme Court of Texas and other courts have reversed jury findings based on the 

objective component of gross negligence. See, e.g., Universal Servs. Co., Inc. v. 

Ung, 904 S.W.2d 638, 642 (Tex. 1995); Alexander, 868 S.W.2d at 326–27; 

Cowboys Concert Hall-Arlington, Inc. v. Jones, No. 02-12-00518-CV, 2014 WL 

1713472, at *15 (Tex. App.—Fort Worth 2014, pet. denied) (mem. op.). 

In my view, failing to continue pursuing a lapsed servitude after becoming a 

co-owner of a piece of land, and failing to then pay G&M and disclose such issue 

to Plains, “is a far cry from the sort of objective risk that would give rise to gross 

negligence.” See Boerjan, 436 S.W.3d at 312. Here, BP has shown “no genuine 

issue of material fact exists as to the issue[]” where none of the summary-judgment 

evidence identifies any acts or omissions by BP that, when viewed objectively

from BP’s standpoint, involved the likelihood of extreme risk of serious injury. 

See Lockett v. HB Zachry Co., 285 S.W.3d 63, 77–78 (Tex. App.—Houston [1st 

Dist.] 2009, no pet.) (concluding trial court properly granted traditional summary 

judgment as to objective element of gross negligence); see also Tex. Dep’t of Parks 
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& Wildlife v. Miranda, 133 S.W.3d 217, 232 (Tex. 2004) (concluding trial court 

improperly denied plea to the jurisdiction in which evidence was submitted where 

“the record contain[ed] no evidence[] that shows that sudden branch drop 

syndrome constitutes an extreme risk of danger”). I would conclude, as a matter of 

law, that the summary-judgment evidence presented of BP’s “mis”conduct could 

not rise to the heightened level necessary to establish the “extreme risk of 

substantial harm” component of gross negligence. 

The Agreement sets forth that Plains would have the burden of proof to 

show that the losses for which BP seeks indemnity resulted from BP’s gross 

negligence. Because Plains failed to meet its burden to raise a fact issue on the 

objective element of gross negligence, either in response to a no-evidence motion 

or after BP conclusively disproved in its traditional motion the objective element 

of gross negligence, BP is entitled to summary judgment as a matter of law. I

would conclude that the trial court erred by not granting summary judgment in 

BP’s favor and against Plains. 

Therefore, I respectfully dissent to that portion of the majority opinion. 

 

 /s/ Marc W. Brown

 Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown.