1 Ex-chi efJus tice P hilip Joh nso n did n ot pa rticipate in r end eri ng thi s opini on though he sat on the

panel at or al submissi on. NO. 07-04-0222-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B NOVEMBER 18, 2005

______________________________ AGRIUM U. S., INC., Appellant

v. VERNA CLARK , Appellee

_________________________________ FROM THE 84 TH DISTRIC T COURT O F HUTCHINS ON COUNTY; NO. 35,315; HON. W ILLIAM D. SMITH, PRESIDING

_______________________________

Opinion

_______________________________ Before QUINN, C.J., and CAMPBELL , JJ. 1 Agrium U.S., Inc. (Agrium) appeals from a judgment aw arding exemplary damag es to appellee Verna Clark (Ve rna), the w ido w of Me lvi n Clark ( Clark). Clark, an employee of Agri um, died during the course of perf orming his duties. At th e time, he wa s attempting to replace a discharg e va lve located in a highl y pressur ized lin e. The line had not been completely depressurized, however. And, as Clark removed a cover pl ate to access t he2

valve, the pressure in the line bl ew the platef r om its seat and against Clark. He subsequently

died from the inj uries he sustained. Verna and Clark’s surviving children sued Agrium, alleging that the gross neg ligence of the company caused Clark’ s death. Upon trial, the jury found that the company had indeed acted with gross negligence and awarded Verna $2,000,00 0. No exemplary damages were aw

arded the chil dren, however. Judgment awarding Verna $1,5 76,00 0 subsequently

was enter

ed by the tr ial court, and Agrium appeal ed. Though three issues are before us, we need only address the fir st. It is d ispositive. Throu gh it, Agri um asserts that the jury’s finding of gross negligence lacks the support of clear and conv incing ev idence. We sustain the issue and revers e the judgment. Applicable Law Itis settled thatone’s gros s neglig ence must be establ ished by clear and conv incing evidence. Diamond Sh amrock Refining Co. v. Hall , 168 S.W.3d 164, 170 (Tex. 2005); T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . §41.003(b) (Vernon Supp. 2005). Whether this burden has been met depends upon w hether the q uantum of ev idence offered at tri al is enough to permit a reasonable j ury to form a firm convicti on or belief that i ts finding i s true. Id. , quoting In re J.F.C. , 96 S.W.3d 256 (Tex. 2002). Furthermore, when apply ing the test , the
r eviewi ng court must in terpret all the evidence of record in a light most favorab le to th e verdict. Id. So t oo must it 1) as sume that the factfinder resolved disputed facts in favor of its find ing if a reasonable factfinder could do so and 2 ) disreg ard all ev idence that a reasonable factfinder

could have disbelieved or found incredi ble. Id. Yet, undis puted facts contradicti ng the verdi ct need not be dis regarded for that “‘could skew the analysis . . . .’”3

Id. And, onlyif upon considering all the ev idence in the manner described, t he review ing court decides that no reasonab le jury could form the requisite belief or conviction may it then hold the ev idence legal ly insuffici ent. Id. Next, gross negligence consists of objective and subjective eleme nts. It is the latter which we address

here. According to our Supreme C ourt and statute, the acto r mus t have
a subjective awareness of the risk i nvolved and proceed w ith conscious indifference to the
r ights, safety, or w

elfare of others. Id. ; accord , T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §41.001(11) (Vernon Supp. 2005) (def ining gross negle c t as an act or omission w hich, when vi ewed objectiv ely from the s tandpoint of the actor at the time of itsoccurrence, involved an ext reme degree of r isk, consi dering the pr obability and magnitude of the potential harm to others, and of which ri sk the actor had actual subjec tive awareness but
n everth eless proceeded w ith conscious indifference to the r ights, safety , or wel fare of others). This standard is not met through proo f of negli gence . T EX
. C IV
. P RAC
. & R EM
. C O DE A NN
. § 41.003(b) (Vernon Supp. 2005); Lee Lewis Constr . Co. v. Har

rison , 7 0 S.W.3d 778, 785 (Tex. 2001). Indeed, w ha t separates ordinary negligence from gross negligence is the actor’s state of mind. Diamo nd Sh amr ock Refining Co. v. Hall , 168 S.W.3d at 173, quoting Loui siana-Pa cific Cor

p v. Andrade , 19 S.W .3d 245 (Tex. 1999). That is, not only

must the actor have actuall y know n of the peril bu t also his ac ts or omissions must demonstrate s ubjectivel y “‘tha t he did not car e’” about it. Id. ; Lee Lewis Constr. Co. v. Har

rison , 70 S.W.3d at 785; General Motors Cor

p. v. Sanchez , 997 S.W.2d 584, 596 (Tex. 1999)

. We must caution, however , that an actor’s fail ure to pursue t he safest course available or provide the best warnings imaginable does not necessarily4

equate to a want of car ing. General Motors Corp. v. Sanc hez , 997 S.W.2d at 597-98. Nor does the vio lation of a law or regul ation inescapabl y evin ce conscious indifference. See Williams v. Steve Indus., Inc. , 699 S.W .2d 570, 574 (Tex. 1985 ) (finding that the driver’s lackof a commercial driver’s licensedid not establi sh gross negligence without pr oof that the driver

had any pri or speeding tickets, had caused or been involved in prior accidents, lacked experience drivi ng big trucks, or w as an incompetent or

reckless driver or

proof that his employer

actually knew the dr iver oper

ated the truck in a dangerous way)

. And, while the existence or non-existence of safety or corporate pol icies touchi ng upon the work

being done may

provide s ome basis for a g ros s neglig en ce find ing, Louisiana-Pacific Corp. v. Andr ade , 19 S.W .3d at 247-48, that is not alway s true. Indeed, the absence of wr itten polici es 1) de scribing how to “l ock-out or tag-out” el ectrical equipment

or 2) wa rnin g othe rs ofpote ntia l saf ety r isks did not support such a findin g in Louisiana-P acificCor

p. This was

so because those involved had thought that the particular

equipment had been locked-out. Id. at 248. Nor does the lack of redundant safety measures ipso facto establish g ros s negligence. The Supreme Court said as much in Diamond Shamrock

. Diamond Shamrock Refining Co. v

. Hall , 168 S.W.3d at 172 (stating t hat Diamond Shamroc k’s failure to implement

redundant

safety systems is not evidence of conscious ind ifference to the risk of explosion since the valve it utiliz ed “appeared to hav e protected ag ainst the ri sk for fifteen years”)

. Simplyput, the circumstances of each case must stand on their ow n. That particul ar acts or omissions may

evince g ross negl igence in s ome situationsdoes not mean that the y5

do in all si tuations. Rat her, al l the cir cumstances are p ivotal, an d unless they permit a reasonable jury to develop a firm convic tion or beli ef that the defendant “did not care” about the risk , there can be no gross neg ligence. Application of

Law Verna attempted to establ ish gross neglige nce at bar thr ough a pletho ra o f evidence. That latter co nsisted of testi mony and documentati on regardi ng the manner in which employees w

ere to safely

chan ge the defective valve or other mechanisms in pressuriz ed lines. Mo reover, t hat evid ence invol ved instances of Agrium’s1) noncompliance with r

egulations i ssued by theOccupational Safety and Healt h Administrati on addressing the subject, 2) failure to install addi tional or i nspect exi sting redun dant safety systems, 3) lack of per tinent polici es assuring that pressur e value s w ere opened and locked-o utto prevent their closure while repairs were undertaken, 4) de minim us for ma l training on how to r

epair the dis charge valve or remo ve the cover plate, and 5) fail ure to affix warni ng labels on the compressor as recommended by

its manufacturer

. Yet, it is undis puted that Agr ium had a ge neral polic y regar ding the way its employees were to r

epair defective mechanisms w ithin press urized l ines. Furthe rmore, the policy mandated that “all energy [be] released/de -pressured.” This procedure was both used in the past and shown to be eff ective when fully implemented. Indeed , even Verna’s
own expert conceded that Clark would not have been injured in the way he was had the pressure in the line been r eleased before Cl ark attempted to r emove the cover plate. The company also

had a policy obligating its workers to obtain a “safety work permit” before undertaking repairs like those attemp ted by Cla rk. An aspect of that permitting system required that “[a]ll energy s ources [be] i solated (loc ked and tagg ed)” and that “[a]ll2 Indeed, aft er t he cover p lat e blew off i ts seat , an Agr ium employee l ooked at t he pressur e gauge and

saw indica tion tha t the line re m aine d pre ssu rized b ut wa s rap idly losing p res sur e. 6 en ergy[be] released/

de-pressured. ” And, wh ile evid ence indicated t hat employ ee s sometimes undertook repairs with out first obtaini ng the req uisite permi t, Verna does not argue that Agri um knew of or condoned the practi ce. Nor does she argue that the practice related to the r

epair of the va lve w hich Clark sought to fix

. Other undisputed ev idence illus trates that 1) Clark and h i s co-workers met to discuss the m anner in which to complete the necessary r epairs, 2) t he vent v alves
necessa ry to release pressure from the line were opened, 3) one of the vents, ho wever, was not fully opene d, 4) it was believed that all the pr essure had been r

eleased from the line, 5) at l east one gaug e was pres ent in the contr ol room to il lustrate whether pressure remained in the line, 6) the gaug e was opera ble at the time, 2 7) Clark attempted to rem ove the cover plate without first obtaining the requisite safety work permit, and 8) when asked by his colleague w hether they s hould obtain the permit before continui ng, Clark uttered an expletive indicating that he did not w ish to wai t. Itis beyond d oub t that ot her measures co uld have been taken by all involved to prevent the incident or reduce the risk involved. But what cannot be ignor ed is the fact that Agr i um had in place pr ocedures w hich obvia ted the danger inherent in w orking on pressuriz ed l ine s. And, we find no evidence of record suggesting that ha d those procedures been completely followed, the incide nt would have nonetheles s occurred. Nor did we find evidence that like incidents had occurred in the past despite full com pliance with the pr

ocedures.3 That safet y measures were av ai lable b ut no t utilize d d ue to th e c on sc iou s d ec isio ns of t ho se in

charge dif

ferent iat es from the si tuat ions i n Lee Lewis Const r. Co. v. Harri

son , 70 S. W .3d 778, 786 (Tex. 2001) and Mobil

Oil Corp. v. Ell

ender , 968 S.W .2d 9 17, 9 25 (T ex. 1 998 ) from that he re. 7 The circumstances before us are quite akin to those in Diamond Shamrock . Thou gh other actions could hav e been taken to pre vent the inc ident in Diamond Shamrock , the check valve that had been installed pro tected against the risk t here invol ved for some 15 years. Diamond Sh a m rock Refining Co. v. Hall , 168 S.W .3d a t 172 . Sinc e the valve existed and was hi storicall y effective, Diam ond Sh amrock’s failu re to instal l redundant safety measures fell short ofillustrating that the company intentiona lly did noth ing to protect Hall from the r isk of explo sion, accordi ng to the SupremeCourt. Id. The same is no less true at bar. 3 A grium mandated a procedur e for avoidin g the ris k of injury when working o n pressuriz ed lines . Tha t pro cedu re ha d bee n ef fec tive o ver th e ye ars. An d, had it been followed and t he lin e bee n fu lly d epressuriz ed, Clark w ould have not been injured by an exploding cover pl ate, according to experts . Again, the release of “ all energy”(or press ure) before work began was what Agrium’s procedure re quired. (Emphasis added). Moreover,
an operating g auge was present to deter mine if all pres sure had been rel eased. So t oo did thos e att emp ting t o rele ase t he pr essu re su bjec tivel y belie ve that they had performed the task. See Louisiana-Pac ific Corp . v. Andrade , 19 S.W.3d at 248 (holding that the lack of co rporate policies touching upon the lock-out of a crane did not establish gross negligence since the employees subjectively beli eved that the crane had been locked -out). Given this evi dence and Supreme Cou rt precedent, we cannot but conclude that

the record before us falls shor

t of allowi ng a reasonabl e jury toform a f irm convi ction or belief that8

Agrium did not care a bout the risk of injury posed to Clar k. Thus , the fi nding of gross negligence at bar lack

s the support of l egally sufficient evi dence. Having sustained Agrium’sfirst issue, we reverse the judg ment of the trial court and render judg ment denying Verna recovery agai nst Agrium.

Brian Quinn Chief Justice