X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS: Crown Central Petroleum Corp. sued Coastal Transport for negligence and gross negligence after a Coastal gasoline truck caused a fire that destroyed a Crown Central gasoline-loading facility. The court of appeals held that Coastal’s failure to object to the admission of expert testimony on gross negligence waived any complaint that the testimony had no probative value. The court of appeals noted that Crown Central presented evidence of gross negligence through the testimony of one of its expert witnesses, Arthur Atkinson, who testified that, in his opinion, Coastal acted with conscious indifference toward a risk of which it was subjectively aware. HOLDING: Reversed and rendered. Crown Central concedes that, under earlier cases, even unobjected-to conclusory testimony cannot be “some evidence” to support a judgment. Crown Central argues, however, that Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998), overruled this earlier line of cases and required an objection to preserve a no-evidence complaint with regard to expert testimony. In Maritime Overseas, the court held that “[t]o preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered.” Crown Central argues that an objection is necessary to protect the trial court’s discretion as a “gatekeeper . . . responsible for making the preliminary determination of whether the proffered testimony” meets reliability standards. Maritime Overseas did not change the general rule that bare conclusions-even if unobjected to-cannot constitute probative evidence. The court holds that Coastal did not waive its no-evidence challenge in this case. With regard to the conscious indifference prong of Crown Central’s gross-negligence claim, the court agrees that the Atkinson testimony was too conclusory to defeat a motion for a directed verdict. Coastal does not challenge the objective element of gross negligence-that the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others. The question is whether the subjective element has been met. The subjective element of gross negligence requires evidence that Coastal was aware of the risk involved, but nevertheless proceeded in conscious indifference to the rights, safety or welfare of others. Because there was no evidence that Coastal had actual, subjective knowledge of defective probes in its inventory, and yet proceeded to act in conscious indifference to the risk posed by such probes, the court holds that the trial court properly granted Coastal’s motion for a directed verdict on gross negligence. The evidence at trial supported the jury’s finding that Crown Central can rebuild its loading facility to its former condition. The court holds that Crown Central was therefore entitled to recover only the amount of money necessary to rebuild its facility and to compensate for its loss of use during the interim, as this amount was sufficient to place Crown Central “in the same position [it] occupied prior to the injury.” Kraft v. Langford, 565 S.W.2d 223 (Tex. 1978). Because Crown Central had previously obtained a third-party settlement for more money than it would cost to compensate Crown Central both for its loss of use and for the expense of rebuilding the facility, the trial court correctly rendered a take-nothing judgment. OPINION: Schneider, J., delivered the court’s opinion.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.