A man who was injured when his vehicle struck a crane parked on the side of the road brought a suit of negligence against the owner of the crane. A District Court entered judgment in favor of the plaintiff, but a Court of Appeal reversed that judgment. The Texas Supreme Court, upon appeal from the plaintiff, reversed the Appeal Court judgment and sent the case back. On March 6, 1986, the Court of Appeal found in favor of the plaintiff and judged the crane owner grossly negligent.

The accident in question occurred when Darrel Dyson’s vehicle collided with a parked crane owned by the Olin Corporation. The crane, a “cherry-picker,” was supporting a section of overhead pipe that ran parallel to a two-lane road. This maintenance operation required that the crane be parked in such a way that it extended four feet into one of the travel lanes of the road. Dyson struck the “cherry-picker” as he drove in this lane.

Evidence at trial demonstrated that the cherry-picker did not block a driver’s vision of any oncoming traffic. It was parked, in broad daylight, on a level stretch of the road. Dyson testified that he was about forty to fifty yards from the cherry-picker before he realized it was parked and not moving.

At trial, the jury found the Olin Corporation grossly negligent in failing to post a flagman to direct traffic; in failing to erect barricades; in failing to provide flashing lights; and in leaving the cherry-picker on the paved portion of the road. The jury also found Dyson 25 percent negligent for failing to keep a look out and for failing to apply his brakes.

The first appeal was overturned by the Supreme Court, and the second appeal supported Dyson’s suit because, as the Appeal Court found, the Olin Corporation knew that parking the crane where it did created a peril, and that such conduct demonstrated “indifference to the safety of people traveling the roadway.”

The central issue during the second appeal was the definition of what constitutes gross negligence. The Appeal Court relied upon the definition sent down by the State Supreme Court which said, “What lifts ordinary negligence into gross negligence is the mental attitude of the defendant . . . The plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare and safety. In other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrated that he didn’t care. Such conduct can be active or passive in nature.”

Therefore, on the ground that Olin Corporation knew that it created a peril and did nothing to mitigate that peril by way of flagmen or warnings and knew that a vehicle traveling in the blocked lane would have to cross into the opposing lane, the Appeal Court found Olin grossly negligent.

Because an award of exemplary, or punitive, damages for gross negligence is not reducible by contributory negligence, Dyson was awarded the full $115,000 punitive damage award. His award for actual damages of $16,404 was reduced by 25 percent. Thus his total award was $127,303. As the Appeal Court noted, ” . . . the paramount purpose for awarding exemplary damages is not to compensate the plaintiff, but to punish and set an example for others.”

One justice dissented from the Appeal Court’s judgment over the question of gross negligence. It was his opinion that there was no direct evidence of “conscious indifference and . . . that the risk of injury created by Olin’s negligence was remote . . .” He noted that Olin had used cherry-pickers to repair pipe along the road many times without mishap prior to Dyson’s accident.

[Olin Corp. v. Dyson 709 S.W.2d. 251 Tex. App.-Houston 14th Dist. 1986]

Larry J. Doherty and Dale Friend, Houston (713-652-5711) represented Darrell Dyson in this case.