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Click here for the full text of this decision FACTS:Otto Graham worked for Adesa Dallas, an automobile auctioning company. In February 1999, Graham told a driver to drive a pickup to the top of a slope during the auto check-in process. Graham got in the back of the pickup truck and the tailgate was left down. As they drove, the driver had to slam on his brakes to avoid a pedestrian in the area. Instead of hitting the brake, though, the driver hit the accelerator, and Graham was thrown from the truck. Graham died from the head injuries he received in the accident. Graham’s family filed suit against Adesa and a leasing company for gross negligence. The defendants filed a joint no-evidence motion for summary judgment on the Grahams claim of gross negligence. The trial court granted the summary judgment motion. HOLDING:Affirmed in part; reversed and remanded in part. The court reviews the legal sufficiency of the evidence of gross negligence, which contains both subjective and objective components. The Grahams say that there was no rule in place prohibiting people from riding in the back of pickup trucks, but the defendants say there was such a rule. The court says it must view the evidence in the light most favorable to the plaintiffs and so agrees that it was common for employees to ride in the back of trucks. The court also notes the Grahams’ evidence that the safety conditions on the auto auction lot were dangerous and deteriorating, as well as evidence that pedestrians posed a problem that went uncorrected. The court adds, however, that there was no evidence of any incident of injury due to someone riding in the bed of a pickup. The court concludes, viewing the evidence as a whole, that there was no evidence that, from the defendants’ standpoint, the defendants’ conduct created a likelihood of serious injury or posed an extreme degree of risk. Even assuming the evidence supported a showing of a known extreme risk, the evidence must support an inference that the defendants demonstrated conscious indifference to the safety of others, which is not the case here. On the contrary, there is evidence that a supervisor at the site reacted strongly to unsafe conduct. He held safety meetings three times a week, and another worker said Davis was so opposed to people riding in the backs of trucks that he would even tell people riding on the back of a golf cart to get off. Though agreeing with the substance of the trial court’s ruling on gross negligence, the court nonetheless finds that the trial court erred in refusing to allow the Grahams to amend their petition to address the defendants’ status and obligations under the workers’ compensation statute. The court finds no evidence that the amendment would have unfairly surprised or prejudiced the defendants, or that it would cause undue delay. OPINION:Bridges, J.; Moseley, Bridges and O’Neill, JJ.

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