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Click here for the full text of this decision FACTS:Charles Hall died of burns he suffered in a refinery explosion. His wife sued his employer, Diamond Shamrock Refining Co. LP, a self-insured subscriber under the Texas Workers’ Compensation Act, its parent, Ultramar Diamond Shamrock Corp. (collectively “Diamond Shamrock”), and others for gross negligence to recover exemplary damages. The trial court rendered judgment for the plaintiff for a portion of the damages assessed by the jury, and she and Diamond Shamrock both appealed. A divided court of appeals reversed and remanded the case for a new trial. The explosion that resulted in Charles Hall’s death occurred when a reciprocating gas compressor at Diamond Shamrock’s crude oil refinery in Dumas ruptured. HOLDING:The judgment of the court of appeals is reversed and judgment is rendered that Hall take nothing. The court focuses on the subjective component of gross negligence as stated in the jury charge: that an actor has “subjective awareness of the risk involved, but nevertheless proceed[s] with conscious indifference to the rights, safety, or welfare of others.” The risk here was that liquids could accumulate in the discharge line while the compressor was shut down and be drawn into the compressor when it was restarted, causing an explosion like the one that resulted in Hall’s death. Even if the flow from the Hydrocracker Unit should have been stopped sooner, that delay is no evidence that Diamond Shamrock was consciously indifferent to the danger of an explosion, the court states. The Feed Prep Unit was designed so that the compressor would be shut down before any liquids from the HCU or anywhere else reached the suction valve, and that is exactly what happened. Diamond Shamrock was aware of the possibility that liquids could backflow in the discharge line, and it installed the check valve to prevent back pressure in the line. This system worked without incident for 15 years. The FPU crews were careful to see that all liquids were removed from the suction line to the compressor, a process that took several hours. Diamond Shamrock’s failure to take further precautions may have been evidence of negligence. But “[e]vidence of simple negligence alone is not sufficient to establish gross negligence.” Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245 (Tex. 1999). The bleeder valve in the discharge line vented the flammable contents of the line into the open air. The valve had been used only to test the system hydrostatically when it first came on line and had not been used since. After the explosion, Diamond Shamrock modified the bleeder valves. Its failure to make these modifications before the explosion may have been negligent, the court states, but this is not enough to prove gross negligence. The record establishes that refinery operations are by their very nature dangerous. Diamond Shamrock’s efforts to protect against those dangers were imperfect; they may have been negligent, the court states. But there is no evidence that Diamond Shamrock was unconcerned. Viewing the record in the light most favorable to the plaintiff, there is no clear and convincing evidence that Diamond Shamrock knew of the risk of the compressor explosion that resulted in Hall’s death and yet did not care, the court concludes. OPINION:Hecht, J., delivered the opinion of the court. Green, J., did not participate in the decision.

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