Court of Appeals of Texas, Texarkana.

Blanca SANCHEZ, et al., Appellants,

v.

S & T INTERNATIONAL, INC., Appellee.

No. 06-00-00016-CV.

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Argued July 13, 2000.

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Decided Aug. 4, 2000.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

ROSS

*1 This is an appeal brought by Blanca Sanchez, et al. (Sanchez) of a summary judgment granted in favor of S & T International, Inc. (S & T). Sanchez brought suit against S & T, claiming that its gross negligence caused the death of her husband, Martin Moreno Sanchez. S & T filed a motion for summary judgment, alleging that Sanchez had presented no evidence of S & T’s gross negligence. The trial court granted this motion. Sanchez contends that the trial court erred by granting S & T’s motion because there was a question of fact as to whether S & T’s conduct rose to the level of gross negligence. We overrule the sole point of error and affirm the judgment of the trial court.

Martin Sanchez was an employee of S & T, a company that manufactures steel pipes from flat steel plates. During this manufacturing process, scrap plates accumulate inside the shop, and about once a week those plates are moved outside and stored on a plate rack that is approximately forty feet in length. On September 22, 1998, scrap plates were being moved. Martin was participating in this process, and his job was to unhook the plates from the crane as they were lowered into the rack. After unloading the fifth plate, Martin was standing inside the rack when it overturned. The plate rack weighed 7,050 pounds, and at the time of the accident there were a total of twenty-eight scrap plates on the rack, which weighed 44,751.5 pounds. Martin was killed by the steel plates that fell out of the rack.

For approximately fifteen years, the plate rack in question had been used by S & T, without incident, to store steel plates. Over the years, this particular rack was placed in various locations, and a few months before the accident in this case, the rack was moved to a location on newly-purchased land. The rack was placed directly on a level soil surface, and after the placement a check was done to make certain that the rack was level. While rain is not uncommon in Orange County, where S & T is located, several weeks before this accident occurred exceptionally heavy amounts of rain fell in this area. The soil was weakened due to this heavy rainfall, and this caused the rack to sink into the soil and overturn.

Since S & T is a subscriber to workers’ compensation, in order for Sanchez to recover directly from S & T, Sanchez must prove that Martin’s “death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.” Tex.Lab.Code Ann. § 408.001 (Vernon 1996). Sanchez brought a claim alleging that S & T was grossly negligent, and S & T filed a no-evidence motion for summary judgment. The trial court granted this motion, and Sanchez appeals from that decision.

A no-evidence motion for summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing this type of summary judgment as we apply in reviewing a directed verdict. McCombs v. Children’s Med. Ctr. of Dallas, 1 S.W.3d 256, 258-59 (Tex.App.-Texarkana 1999, pet. filed). We review the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

*2 We must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. McCombs, 1 S.W.3d at 259. A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Havner, 953 S.W.2d at 711.

In this case, Sanchez claimed that S & T’s gross negligence caused the death of Martin Sanchez. Gross negligence includes two elements: (1) 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, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994). Evidence of simple negligence is not enough to prove either the objective or subjective elements of gross negligence. See Universal Servs. Co. v. Ung, 904 S.W.2d 638, 641 (Tex.1995); see Moriel, 879 S.W.2d at 22-23. However, either element may be proven by circumstantial evidence. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998).

In S & T’s motion for summary judgment, it specifically alleged that Sanchez brought forth no evidence of either essential element. The trial court granted the motion for summary judgment. Summary judgment is proper if there is no evidence of one or both essential elements of gross negligence. See Tex.R.Civ.P. 166a(i). On appeal, Sanchez argues that they presented more than a scintilla of evidence on both the objective and the subjective prongs of gross negligence.

In order for the objective prong to be satisfied, an extreme degree of risk must be shown. Moriel, 879 S.W.2d at 23. An extreme risk is not a remote possibility of injury or even a high probability of minor harm, but rather the conduct must produce the likelihood of serious injury. See Ung, 904 S.W.2d at 641. “Determining whether an act or omission involves extreme risk or peril requires an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight.” Moriel, 879 S.W.2d at 23.

Sanchez argues that the objective prong has been satisfied because, given the extreme weight of the plates, it is obvious that any movement of the rack would cause severe injury or death. Additionally, they argue that “[t]he probability of the rack overturning was a mathematical certainty, …. [g]iven the load bearing capacity of the soil, and the weight of the plates, the rack would turn over every time it was so loaded as the laws of physics are constant.” However, in order to satisfy the objective prong, the extreme degree of risk must be evident to S & T before the accident occurred, not in hindsight. Id.

*3 No soil tests were done before the accident, and S & T was not aware of the load bearing capacity of the soil. While it is obvious that if this rack overturned it would result in severe injury or death, S & T had no indication that this rack might overturn. S & T used the rack in question for over fifteen years without incident. The rack had been used in all types of weather conditions, and it had been placed directly on other soil and sand surfaces. No soil analysis had ever been conducted. From S & T’s viewpoint, serious injury was unlikely. See Ung, 904 S.W.2d at 641-42 (Truck hit a pothole, which caused its trailer to come off and kill a roadside worker. Conduct not so extreme as to create the likelihood of serious injury even though employer knew of pothole, knew that pothole had previously caused a trailer to come unhitched, and failed to take additional, required precautions); see also Williams Distrib. Co. v. Franklin, 884 S.W.2d 503, 511-12 (Tex.App .-Dallas 1994), rev’d in part on other grounds, 898 S.W.2d 816 (Tex.1995) (Employee was injured when improperly stored dolly fell on him. Even though the extremely heavy dolly was left sitting out, defendant knew that this practice created some risk of harm, and there was no safety procedure for storing the dolly, conduct did not create extreme risk of harm.) The trial court’s summary judgment should be upheld.

However, even if we assume that S & T’s actions did create an extreme degree of risk, the summary judgment still must be upheld because the subjective prong cannot be satisfied.¹ There is no summary judgment evidence that S & T was subjectively aware of the risk that caused Martin’s death, or that it acted with conscious indifference to his rights, safety, or welfare. In order to satisfy the subjective prong, Sanchez must prove that S & T “knew about the peril, but [its] acts or omissions demonstrate that [it] did not care.” Louisiana-Pacific Corp. v. Andrade, 43 Tex.Sup.Ct.J. 56, 1999 WL 959160, at *1 (Oct. 21, 1999).

S & T had used this very rack for over fifteen years. It had been placed on both soil and sand surfaces without incident. It had been used after rainfall had occurred. S & T owners and employees testified that they actually believed the rack was safe, and that they had checked to make sure the rack was placed on solid, level ground when they relocated it to the site where the accident occurred. Additionally, many employees had done the same work that Martin was doing at the time of his death. All evidence and testimony shows that S & T subjectively believed that the rack was safe.

Sanchez contends, however, that S & T knew that the rain had made the surface soft and that everyone knows that heavy objects sink in mud. Sanchez claims this circumstantial evidence is sufficient proof that S & T had actual awareness of the risk and that they acted with conscious indifference to this fact by proceeding to load the rack anyway. See Ellender, 968 S.W.2d at 921. This mere surmise or suspicion does not rise to the level of proving S & T’s subjective, actual awareness of the risk, or a conscious indifference for the safety and welfare of Martin. See Ung, 904 S.W.2d 638; see also Andrade, 1999 WL 959160.

*4 Gross negligence “is not merely momentary thoughtlessness, inadvertence, or error in judgment.” Atchison, Topeka and Santa Fe Ry. Co. v. Cruz, 9 S.W.3d 173, 187 (Tex.App.-El Paso 1999, no pet.), citing Moriel, 879 S.W.2d at 24. The record does not support a finding that S & T was actually aware of the danger and acted with conscious indifference to the rights, safety, or welfare of Martin in the face of an extreme risk. See Andrade, 1999 WL 959160, at *2-3 (Employee injured when he came into contact with electrified overhead crane. Defendant’s lack of safety policies and the conflicting testimony regarding when it thought crane was made safe, does not support inference that it knew crane was energized and did not care about risk); see also Caterpillar, Inc. v. Shears, 881 S.W.2d 923, 933-34 (Tex.App.-Corpus Christi 1994), rev’d on other grounds, 911 S.W.2d 379 (Tex.1995) (Worker was injured when operating a front-end loader, where the rollover protective structure (ROPS) had been removed. ROPS was designed to be removable and designer was not consciously indifferent to safety or welfare of employee even though it was actually aware that some protection to the operator would be removed if ROPS was taken off.)

The summary judgment is affirmed.

	Footnotes
1		We do not find, nor does S & T concede, that the objective prong is satisfied.