Court of Appeals of Texas,

Eastland.

Tomasa RIVERA, Individually and as Representative of the Estate of Raul Rivera, Deceased; Isaiah Rivera; Jolene Rivera Rangel; Raul Rivera, Jr.; and Erica J. Rivera, Appellants

v.

MEISTER INDUSTRIES, INC. and Longhorn Custom Coating, Inc., Appellees.

No. 11–04–00172–CV.

|

May 18, 2006.

Attorneys & Firms

Lance P. Bradley, for Tomasa Rivera.

John Green, for Meister Industries, Inc. and Longhorn Custom Coating, Inc.

Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.

MEMORANDUM OPINION

TERRY McCALL, Justice.

*1 Appellants, Tomasa Rivera, Individually and as Representative of the Estate of Raul Rivera, Deceased; Isaiah Rivera; Jolene Rivera Rangel; Raul Rivera, Jr.; and Erica J. Rivera (the Riveras) brought this action against appellees, Meister Industries, Inc. and Longhorn Custom Coating, Inc. (collectively Meister) alleging that, as a result of Meister’s gross negligence, Raul Rivera was exposed to dangerous levels of silica dust while working for Meister as a sandblaster. The Riveras alleged that Rivera contracted silicosis as a result of his exposure to the silica dust and later died from the disease. After the jury found in favor of the Riveras on their gross negligence claim, the trial court entered a judgment notwithstanding the verdict in favor of Meister. In this appeal, the Riveras challenge the trial court’s judgment notwithstanding the verdict. Because there was no evidence that Meister had an actual, subjective awareness of the risk associated with Rivera’s exposure to silica dust, we affirm the trial court’s judgment.

Background Facts

Meister was in the business of cleaning, coating, and painting used oil field equipment and other types of used equipment. Charlene Meister and her grandson, Billy Meister Jr., owned the company. Charlene and her late husband, Bill Meister, founded the company in 1969. During the time period relevant to this appeal, Bill ran the company’s day-to-day operations and Charlene worked as the company’s office manager.

Meister’s employees cleaned the equipment using an abrasive blasting process (often called sandblasting). Meister’s employees performed the sandblasting process outdoors. The employees used hoses equipped with nozzles to spray pressurized air and sand at the equipment to be cleaned. The pressurized sand blasted away debris, oil, or whatever was on the equipment. The sandblasting was a dusty process and blew sand everywhere.

Raul Rivera worked for Meister as a sandblaster for about four years, from August 1977 until April 1978 and from July 1978 until May 1981. During the time period of Rivera’s employment, Meister’s sandblasters wore non-air supplied canvas hoods—meaning there was no air line feeding into the hood—as protection from the sand. At times, the sandblasters also wore dust particle masks to keep from inhaling the sand. In the mid–1980s, Meister began providing air supplied hoods to its sandblasters.

In 1982, Raul Rivera became ill with breathing difficulties. In 1984, he was diagnosed with silicosis, a lung disease caused by prolonged inhalation of silica dust. Silicosis is a progressive, incurable, and painful disease. The disease results in a chronic shortness of breath. Rivera died as a result of respiratory failure due to the silicosis in 2001. He was forty-nine years old.

The Riveras brought this action against Meister for gross negligence seeking to recover exemplary damages as permitted by Article XVI, section 26 of the Texas Constitution and Article 8306, section 5 of the former Workers’ Compensation Act.¹ The Riveras alleged that Rivera was exposed to dangerous levels of silica dust as a result of Meister’s gross negligence in conducting sandblasting operations. At trial, the Riveras contended that Meister’s failure to provide Rivera with an air supplied hood for use during sandblasting operations constituted gross negligence.

*2 The jury found in favor of the Riveras on their gross negligence claim and awarded exemplary damages in the amount of $300,000. Meister filed a motion for judgment notwithstanding the verdict based on the following grounds: (1) that no evidence supported the jury’s finding of gross negligence, (2) that the Riveras could not recover exemplary damages because they had not obtained a jury finding on actual damages, (3) that the jury awarded an excessive amount of exemplary damages, (4) that the exemplary damages award was subject to the $200,000 cap set forth in Tex. Civ. Prac. & Rem.Code Ann. § 41.008 (Vernon Supp.2005), and (5) that Meister was entitled to an offset on the damages for workers’ compensation benefits previously paid to the Riveras as a result of Raul Rivera’s death. Meister also filed a motion to disregard the jury’s gross negligence finding and the jury’s award of exemplary damages. The trial court rendered a judgment notwithstanding the verdict, stating that there was no evidence of probative force to sustain the jury’s verdict.

Issues on Appeal

The Riveras present five issues for review. They argue that the trial court’s judgment notwithstanding the verdict cannot be sustained on any of the grounds stated in Meister’s motion for judgment notwithstanding the verdict.

Standard of Review

A trial court may disregard a jury finding on a question that has no support in the evidence and may enter a judgment notwithstanding the verdict if a directed verdict would have been proper. Tex.R. Civ. P. 301. In their first issue, the Riveras argue that the trial court erred in granting judgment notwithstanding the verdict because the evidence was legally sufficient to support the jury’s gross negligence finding. The Riveras had the burden to prove their gross negligence claim against Meister by clear and convincing evidence. Tex. Civ. Prac. & Rem.Code Ann. § 41.003(a)(3) (Vernon Supp.2005). In reviewing the legal sufficiency of the evidentiary support for a finding that must be proved by clear and convincing evidence, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding was true. Diamond Shamrock Refining Co. v. Hall, 168 S.W.3d 164, 170 (Tex.2005); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex.2004); In re J.F.C., 96 S.W.3d 256, 264–65 (Tex.2002). When the burden of proof is by clear and convincing evidence, the evidence is legally insufficient when no reasonable fact-finder could form a firm belief or conviction that the matter to be proven is true. Diamond Shamrock, 168 S.W.3d at 170; In re J.F.C., 96 S.W.3d at 266.

Gross Negligence

Gross negligence consists of both an objective element and a subjective element. See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001); Mobil Oil Corp. v. Ellender, 968 S.W .2d 917, 921 (Tex.1998). To establish gross negligence, a plaintiff must prove by clear and convincing evidence (1) that, when viewed objectively, the defendant’s acts or omissions involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) that the defendant had an actual, subjective awareness of the risk involved but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. Tex. Civ. Prac. & Rem.Code Ann. § 41.001(11) (Vernon Supp.2005). A consideration of the subjective awareness element determines the outcome of this appeal. The issue is whether the evidence was legally sufficient to prove that, during the period of Raul Rivera’s employment, Meister had an actual, subjective awareness of the risk posed by exposure to silica dust but nevertheless proceeded with conscious indifference to Raul Rivera’s rights, safety, or welfare.

The Evidence at Trial

*3 We have reviewed all the evidence, and we summarize the evidence relevant to the determination of the subjective awareness element below.

Humberto Aguilar’s Testimony

Aguilar testified that he worked for Meister from 1977 until 1992. He began his employment at Meister as a sandblaster, and he sandblasted for one year. Meister did not provide him with any training to become a sandblaster. When Aguilar began his employment, Raul Rivera was working for Meister as a sandblaster. At that time, Meister’s sandblasters wore non-air supplied canvas hoods when sandblasting. The canvas hoods had a piece of glass in the front to look through and some air holes on the side. He was instructed to wear a hood for protection from the sand. Aguilar believes that the sandblasters were using the canvas hoods so that the sand would not hit their eyes. He said that sand goes everywhere and piles up during sandblasting. Aguilar sometimes wore a paper mask to keep sand from going into his mouth. Meister’s sandblasters never used air supplied hoods during the time period that Rivera worked for Meister. Aguilar became a coater at Meister, but occasionally went back to sandblasting. Starting in about 1986, he wore an air supplied hood while sandblasting. Aguilar said that the air supplied hoods were red and had an air hose attached to them. Nobody at Meister ever told him that sand could cause a disease. Meister began to have safety meetings in about 1986. Aguilar did not know whether Meister knew that the sand could hurt the employees.

Joe Calvin Redd’s Testimony

Redd testified that he went to work for Meister as a sandblaster in 1982, after Raul Rivera had left his employment with Meister. He said that Meister sandblasted manifolds and fittings, using sand as the abrasive for blasting. When Redd first started as a sandblaster, he wore a non-air supplied canvas hood, the same equipment worn by all of Meister’s sandblasters. Redd also wore a dust particle mask on occasion to protect himself from the sand. The dust particle mask had two yellow bands, and it covered the mouth and nose. In about 1984, Meister began providing air supplied hoods to its sandblasters. Meister did not have regularly conducted safety meetings until after Redd had worked for Meister for some time. To his recollection, in 1982, Meister did not conduct any air monitoring to determine the concentrations of dust in the air. When he started at Meister, no one warned him that dust could be bad for him. Redd heard the word silicosis for the first time in about 1984. Bill Meister never mentioned silicosis to Redd, and Redd has no recollection about whether Bill Meister knew about silicosis.

Charlene Meister’s Testimony

Charlene Meister testified that she and her late husband, Bill, started Meister in 1969. Charlene is currently the president and an owner of Meister. Meister primarily handles oil field equipment. Before the equipment can be coated and painted, the equipment is cleaned by sandblasting, a process that is performed outdoors. The sandblasters use an air pressure hose with a nozzle attached to it. During the blasting process, the sand cleans off debris that is on the equipment. Charlene thought that her husband, Bill, was an expert in the sandblasting field.

*4 Raul Rivera worked for Meister as a sandblaster from 1977 through 1981. During that period, Meister’s sandblasters wore non-air supplied hoods. They also wore white masks with yellow bands. Charlene testified that Bill was in charge of keeping up with regulations and safety equipment. Bill was always aware of safety and admonished the employees to be safe. Charlene said that Bill might have warned Rivera that breathing silica dust was dangerous. Charlene said that Meister changed to air supplied hoods some time in the late–1980s when companies started manufacturing them. Charlene said that she was surprised to hear that air fed hoods have been around since the 1920s. Meister did not have formal safety meetings when Rivera worked for Meister. Meister began to have safety meetings in the late–1980s.

Dr. Vernon Eugene Rose’s Testimony

Dr. Rose testified that he is board certified in industrial hygiene and a certified safety specialist. Industrial hygiene involves recognition, evaluation, and control of health and safety hazards in the workplace. Dr. Rose testified in detail about the hazards of exposure to silica dust. The risk of overexposure to silica is developing silicosis and other diseases.

Dr. Rose said that the silicosis problem received national attention back in the 1930s. The Occupational Health and Safety Administration (OSHA) was set up in 1971 to enact and enforce safety and health issues in the workplace. In the 1970s, OSHA and the National Institute for Occupational Safety Health (NIOSH) investigated silicosis and other diseases that do not show up in a person’s body until many years after the person has been exposed to the cause of the disease. Dr. Rose explained that silica dust is generated when sand is used during abrasive blasting operations. Silica dust is a small particle dust that has no warning properties. Silica dust is invisible to the naked eye, and it has no smell or taste. On the other hand, large particle dust has warning properties. A person can see large particle dust or can feel it if it gets into the person’s eyes or nose. Small particles of silica dust stay suspended in the air and may be inhaled into the lungs. Because silica dust has no warning properties, a person may inhale it and not even know it.

Because of the hazards associated with silica dust exposure, OSHA passed regulations relating to abrasive blasting in 1971. The regulations require the use of air supplied hoods for employees holding the nozzle of the air pressure hose during blasting operations. Dr. Rose testified that Meister was subject to the OSHA rules and regulations. Dr. Rose said that, in 1969, the American National Safety Institute (ANSI) published a standard recommending that sandblasters wear an air supplied hood during blasting operations. In 1974, NIOSH recommended that sand be banned for use in sandblasting operations. However, if sand were used, NIOSH recommended that air supplied hoods be used for sandblasting. Dr. Rose testified that air supplied hoods have been around since at least 1922.

*5 Dr. Rose said that, during the 1970s, employers with questions about abrasive blasting respiratory protection could have contacted OSHA, safety supply companies, or sand manufacturers. In the 1970s, OSHA sent information to employers about safety in the workplace. Dr. Rose said that all corporations have federal identification numbers for unemployment statistics and other types of reporting. OSHA used a national list of these corporations when sending out information.

Raul Rivera wore a non-air supplied hood, sometimes referred to as a desert hood, when he sandblasted for Meister. While the non-air supplied hoods provided some protection from large particle dust, they did not provide adequate protection from exposure to silica dust. When a person uses a non-air supplied hood, the person is exposed to a silica dust concentration of about seventy times the OSHA allowable limit. A dust mask—the mask with the yellow bands—provides very little protection from this amount of silica dust.

Dr. Rose testified that Meister had a duty to follow OSHA regulations. Dr. Rose said that the OSHA regulations required Meister to provide its sandblasters with an air supplied hood (a hood with a continuous air fed flow-line respirator). Meister had the duty to keep silica dust exposure below OSHA’s allowable limit. Dr. Rose said that Meister’s sandblasting operations also failed to comply with other OSHA regulations.

Dr. Rose testified that a person who uses a non-air supplied hood for sandblasting is at an extreme risk of overexposure to silica and developing silicosis and other diseases. In Dr. Rose’s opinion, Meister’s failure to comply with the OSHA regulations on abrasive blasting created an extreme degree of risk for persons such as Raul Rivera. Dr. Rose said that Meister’s conduct caused Rivera’s death.

Dr. Rose testified that, in his opinion, Meister had actual awareness of the hazards of silica dust when Raul Rivera worked for Meister. Dr. Rose based his opinion on the deposition testimony of Charlene Meister. Charlene testified in her deposition as follows: (1) that you keep the sand “off of you if you can, because this is dirty. And so you protect yourself from it”; (2) that the sandblasters wore hoods to deflect the sand to keep “you from breathing it”; (3) that the beneficial effect of wearing a hood while blasting “is that it is going to protect you from the bounce back of the sand”; (4) that the purpose of the hood was to protect the workers from breathing the sand; and (5) that the sandblasters wore the dust particle masks as “extra protection from breathing the dust.”

On cross-examination, Dr. Rose testified that he did not know whether Meister ever received any warnings about silicosis from any sand manufacturing companies. He also did not know whether Meister ever received any warnings that the sand it was using contained silica. Dr. Rose assumed that Meister had not received any warnings about silica dust because Bill Meister and his son, Billy, sandblasted using the same equipment as the employees used. In the 1970s, sandblasting companies had a common practice of using non-air supplied hoods. Dr. Rose testified that the dangers of breathing silica were not a matter of ordinary, common knowledge. Dr. Rose did not know whether OSHA had ever cited Meister for any safety violations. He was aware of Charlene Meister’s testimony that OSHA first visited Meister after Raul Rivera left his employment. Dr. Rose agreed that Meister, as an employer of about twenty-five employees, was an unsophisticated employer and that many employers of this size were unlikely to understand the concept of dust that is invisible to the eye causing damage to the lungs.

Dr. Gerald Abraham’s Testimony

*6 Dr. Abraham testified that he is a pathologist specializing in the area of occupational and environmentally related diseases. Dr. Abraham testified that Raul Rivera’s death was caused by silica exposure resulting in silicosis that progressed to the point where he could no longer breathe. Dr. Abraham explained that silica dust particles are invisible to the human eye. When silica dust particles are small enough to stay in the air and get inhaled into the lungs, they are called respirable. A person may be exposed to respirable silica dust and not even know it.

Tomasa Muro Rivera’s Testimony

Tomasa Muro Rivera testified that she is the widow of Raul Rivera. She said that Raul Rivera came home covered in sand after his work shifts at Meister. She said that his hair, face, ears, and nostrils were completely covered in sand when he came home from work.

Subjective Awareness Element

Actual awareness means that the defendant knew about the peril but its acts or omissions demonstrated that it did not care. Ellender, 968 S.W.2d at 921. The Riveras argue that the evidence was legally sufficient to prove Meister had an actual, subjective awareness of the risk posed by exposure to silica dust but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. The Riveras rely on the following evidence to support their argument: (1) Charlene Meister’s statement that Bill Meister might have warned Raul Rivera that breathing silica dust was dangerous; (2) Dr. Rose’s opinion testimony that Meister was aware of the hazards of silica dust; (3) Dr. Rose’s testimony that Meister was subject to, and failed to comply with, OSHA rules and regulations regarding abrasive blasting; and (4) testimony that Meister failed to conduct safety meetings and lacked a corporate safety policy.

Charlene Meister did not provide any direct testimony—nor did any other witness—that Bill Meister knew of the risks posed by silica dust. However, the Riveras contend that Bill’s knowledge of the risks may be inferred by Charlene’s testimony that he “might” have warned Raul Rivera of the dangers of breathing silica dust. Charlene’s testimony that Bill “might” have warned Rivera gives rise to an equal inference that Bill “might not” have warned Rivera. The equal inference rule prohibits a jury from inferring an ultimate fact from meager circumstantial evidence that could give rise to any number of inferences, none more probable than the other. Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex.2001)(Phillips, C.J., concurring and dissenting); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.1997); Mills v. Mest, 94 S.W.3d 72, 74–75 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). Thus, in cases with only slight circumstantial evidence, something else must be found in the record to corroborate the probability of the fact’s existence or non-existence. Lozano, 52 S.W.3d at 148; Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).

*7 The record does not contain any evidence that Bill Meister or anyone else at Meister knew of the risks posed by silica dust. Aguilar testified that nobody at Meister told him sand could cause a disease and that he did not know whether Meister knew sand could hurt the employees. Redd testified that, when he started at Meister in 1982, nobody at Meister warned him or told him dust could be bad for him. Redd said that he did not hear the word silicosis until about 1984 and that Bill Meister never mentioned silicosis to him. Thus, there was no evidence that Bill Meister warned any other employees about silica dust. The evidence showed that, when Bill Meister and Billy Meister sandblasted, they used the same equipment that Meister’s employees used. The evidence supports the conclusion that Bill Meister did not know of the risks posed by exposure to silica dust and that, therefore, he did not warn and could not have warned Rivera about the dangers of silica dust. Thus, there is nothing in the record to corroborate the possibility that Bill Meister warned Raul Rivera about silica dust. Therefore, the equal inference rule prohibited the jury from inferring that Bill Meister was aware of the risks posed by silica dust. Charlene Meister’s testimony that Bill might have warned Rivera was no evidence that Meister had actual, subjective awareness of the risks posed by silica.

Dr. Rose’s opinion that Meister had actual awareness of the hazards of silica dust was based on Charlene Meister’s testimony. Charlene testified that sandblasting was a dirty process and that the sandblasters tried to keep the sand off of themselves. She said that the sandblasters wore hoods to protect themselves from the sand and to keep from breathing it. She said that the hoods protected from the bounce back of the sand and deflected the sand. Charlene also said that the sandblasters wore dust particle masks as extra protection from the sand.

Charlene’s testimony shows that Meister provided hoods and masks to its employees in an attempt to protect them from breathing the sand that was used during sandblasting operations. Meister also wanted to keep the sand off of the employees because sandblasting was a dirty process. Meister was trying to protect the employees from visible sand that was used during sandblasting operations. This evidence does not prove Meister knew anything about the invisible silica dust that was generated during sandblasting operations. Thus, while Charlene’s testimony shows that Meister attempted to protect its workers from the sand that was used during sandblasting operations, the testimony was no evidence that Meister had any knowledge about the dangers posed by silica dust or that its sandblasting operations generated silica dust.

Dr. Rose testified that Meister’s sandblasting operations failed to comply with OSHA rules and regulations. Specifically, he said that the OSHA regulations required Meister to provide Raul Rivera with an air supplied hood for use in sandblasting. Dr. Rose also said that OSHA sent safety information to employers about safety in the workplace. However, there was no evidence that Meister was aware of the OSHA rules and regulations, nor any evidence that Meister received any safety information from OSHA and, specifically, any information relating to abrasive blasting.² The record shows that OSHA first visited Meister after Rivera left his employment. Additionally, there was no evidence that Meister received, or was aware of, any information or warnings relating to silica dust from any other source, such as the NIOSH recommendations or information from sand manufacturing companies.

*8 The Riveras assert that Meister’s lack of a safety policy and failure to conduct safety meetings support a gross negligence finding. These omissions fail to show that Meister knew anything about the risks of exposure to silica. Therefore, the absence of a safety policy and safety meetings will not support an inference of subjective awareness. Louisiana–Pacific Corp. v. Andrade, 19 S.W .3d 245, 247 (Tex.1999).

In Ellender and Lee Lewis, the Texas Supreme Court upheld jury findings of gross negligence. The evidence in Ellender showed that the employer knew about the danger associated with benzene exposure. Based on that knowledge, the employer went to great lengths to protect its employees from the benzene risks. Ellender, 968 S.W.2d at 924. The employer, however, did nothing to protect contract workers from the same danger, even though the contract workers worked side by side with its employees. The Texas Supreme Court held the evidence was legally sufficient to prove the employer had actual awareness of the extreme risk benzene exposure involved but that the employer nevertheless proceeded in conscious indifference to the rights, safety, or welfare of the contract workers. Id.

The evidence in Lee Lewis showed the employer knew about the risks of fatal falls at multi-story construction projects. Lee Lewis, 70 S.W.3d at 786. The construction project presented a fall hazard because workers had to work on the exterior of the ninth and tenth floors of the building. Based on the knowledge of the fall risk, the employer provided its employees with independent lifelines as part of their fall-protection equipment. However, although the employer knew that its subcontractor’s employees were not using independent lifelines for fall protection, the employer did nothing to remedy the situation. The Texas Supreme Court concluded the evidence was legally sufficient to prove the employer was subjectively aware of the risk of fatal falls for its subcontractor’s employees but that the employer was consciously indifferent to the risk. Id. at 786.

This case is factually distinguishable from Ellender and Lee Lewis. Here, there was no evidence, certainly no clear and convincing evidence, that Meister had an actual, subjective awareness of the risks posed by silica dust. Additionally, there was no evidence that Meister knew its sandblasting operations generated any silica dust. The trial court did not err in granting a judgment notwithstanding the verdict in favor of Meister.

We overrule the Riveras’ first issue. Based on our disposition of their first issue, we need not address their other issues.

This Court’s Ruling

We affirm the judgment of the trial court.

	Footnotes
1		Act of March 28, 1917, 35th Leg., R.S., ch. 103, part I, § 5, 1917 Tex. Gen. Laws 269, (repealed by Act of Dec. 11, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01, 1989 Tex. Gen. Laws 114) (amendments omitted) (current version at TEX. LAB. CODE ANN. § 408.001(b) (Vernon 2006).
2		Dr. Rose’s attempt to impute knowledge of OSHA regulations to Meister was insufficient to establish the required subjective awareness for gross negligence, as opposed to the lesser standard for ordinary negligence.