Opinion filed November 5, 2009




                                             In The


   Eleventh Court of Appeals
                                         ____________

                                    No. 11-08-00230-CV
                                        __________

                     DIANE GARRETT, AS NEXT FRIEND OF
                        CHEYENNE GARRETT, Appellant

                                                V.

              PATTERSON-UTI DRILLING COMPANY, L.P. AND
                       RICKY WHITE, Appellees


                           On Appeal from the 132nd District Court

                                     Scurry County, Texas

                                 Trial Court Cause No. 23051


                                          OPINION

       This is a wrongful death claim arising out of an on-the-job injury. Diane Garrett, as next
friend of Cheyenne Garrett, filed suit against Patterson-UTI Drilling Company, L.P. and Ricky White
in Lubbock County. The defendants challenged venue, and the trial court transferred the suit to
Scurry County. The Scurry County District Court granted Patterson’s and White’s motions for
summary judgment. We affirm.
                                               I. Background Facts
            Brandon Garrett was employed by Patterson and was assigned to a rig drilling a well in
Floyd County. White was his tool pusher. A jet became plugged, and while trying to clear it by
shaking the pipe string, the brake cammed over. White was able to break the brake back over, but
the brake handle was bent in the process. The rig crew had previously removed a guard to inspect
the brakes. White and another employee, Randy Greene, worked on the brake handle. White
directed Brandon and two other employees to replace the brake guard. The brake handle fell on the
accelerator, which released the clutch, and the spool began to move. Brandon was caught in the lines
and spool and was fatally injured.
                                                      II. Issues
           Garrett advances three issues on appeal. First, Garrett contends that the trial court erred by
granting Patterson’s and White’s motions to transfer venue; second, that the trial court erred by
granting Patterson’s summary judgment motion; and third, that the trial court erred by granting
White’s motion for summary judgment.
                                                   III. Discussion
           The crux of the venue dispute is whether a wrongful death claimant can assert a gross
negligence claim against the decedent’s co-employee when the employer has workers’ compensation
insurance. There is no dispute that White is a resident of Lubbock County. If Garrett can assert a
claim against him, venue is proper in Lubbock County. If not, then there was no basis to maintain
venue in Lubbock County, and the Lubbock County District Court did not err by granting the
motions to transfer venue. Patterson and White argue that the exclusivity provisions of the Workers’
Compensation Act1 preclude such a claim. Garrett disputes this argument but, alternatively, argues
that, if Patterson and White are correct, then the Act is unconstitutional.
           A. Is Venue Properly Before Us?
           Garrett also contends that procedural bars preclude our consideration of the substantive venue
issues, contending that venue was improperly challenged because Patterson and White did not
dispute that White was a resident of Lubbock County and that venue was improperly determined



  1
      TEX. LAB. CODE ANN. §§ 401.001-419.007 (Vernon 2006 & Supp. 2009).

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because she was required to prove a cause of action. We disagree with Garrett’s premise that
Patterson and White were required to dispute that White was a resident of Lubbock County to
challenge venue. If Garrett could not assert a claim against him, then his residence is immaterial.
See In re Valetutto, 976 S.W.2d 893, 896 (Tex. App.—Austin 1998, no pet.) (trial court did not err
by transferring venue when plaintiff lacked standing to assert the only cause of action supporting
venue in Travis County). We also disagree that Garrett was forced to prove a cause of action. For
purposes of this review, we do not determine whether Garrett could prove a claim against White but
merely whether she could plead one – a question of law that does not require the consideration of
evidence and, therefore, does not require Garrett to prove a cause of action. See id. at 894 (plaintiff
was not required to prove the merits of its cause of action because the trial court determined venue
by resolving a question of law).
        Garrett also contends that Patterson and White were required to first challenge her pleadings
with a special exception. Again we disagree. Patterson and White were not challenging a defect,
omission, obscurity, duplicity, generality, or other insufficiency in Garrett’s allegations – the matters
described by TEX . R. CIV . P. 91. Instead, they were challenging her alleged cause of action. But
even if we are incorrect, Garrett has shown no harm because she has not identified how she could
have amended her pleadings to state a viable claim against White. We note also that this suit had
been pending for over ten months before the Lubbock County District Court transferred venue and
that Garrett made no attempt to amend her petition.
        B. Does Garrett Have a Constitutionally Protected Cause of Action Against White?
        Garrett contends that the Texas Constitution assures her right to assert a claim for punitive
damages against White because it provides:
                Every person, corporation, or company, that may commit a homicide, through
        wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages,
        to the surviving husband, widow, heirs of his or her body, or such of them as there
        may be, without regard to any criminal proceeding that may or may not be had in
        relation to the homicide.

TEX . CONST . art. XVI, § 26. Garrett does not contend that this provision creates a private cause of
action but that it renders the exclusivity provision of the Workers’ Compensation Act




                                                   3
unconstitutional if it precludes her claim against White.2 Garrett recognizes that the Act allows a
claim against an employer but contends that White individually is also liable and that, in light of the
mandatory language of Section 26, the Act cannot constitutionally preclude a gross negligence cause
of action against him.
           When determining the constitutionality of a statute, we begin with a presumption that it is
constitutional. HL Farm Corp. v. Self, 877 S.W.2d 288, 290 (Tex. 1994); Spring Branch Indep. Sch.
Dist. v. Stamos, 695 S.W.2d 556, 558 (Tex. 1985). Courts presume that the legislature “understands
and correctly appreciates the needs of its own people, that its laws are directed to problems made
manifest by experience, and that its discriminations are based upon adequate grounds.” Smith v.
Davis, 426 S.W.2d 827, 831 (Tex. 1968) (quoting Tex. Nat’l Guard Armory Bd. v. McCraw, 126
S.W.2d 627, 634 (Tex. 1939)). The wisdom or expediency of a law is for the legislature to
determine, not this court. Smith, 426 S.W.2d at 831. Furthermore, the party challenging the
constitutionality of a statute bears the burden of demonstrating that the enactment fails to meet
constitutional requirements. Stamos, 695 S.W.2d at 558.
           In construing a state constitutional provision, “the fundamental guiding rule is to give effect
to the intent of the makers and adopters of the provision in question.” Harris County Hosp. Dist. v.
Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). And, because any such provision is
“construed in the light of the conditions existing at the time of adoption,” its meaning “is fixed when
it is adopted, and it is not different at any subsequent time.” Cramer v. Sheppard, 167 S.W.2d 147,
154 (Tex. 1942) (orig. proceeding). As Justice Holmes has written, to understand a constitutional
provision, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S.
345, 349 (1921).
           History makes clear that Section 26 was adopted to resolve ambiguities existing in the
statutory and common law of punitive damages. Travelers Indem. Co. of Ill. v. Fuller, 892 S.W.2d

  2
      Section 408.001 provides in part:

                     (a) Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by
           workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee
           of the employer for the death of or a work-related injury sustained by the employee.

                     (b) This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs
           of the body of a deceased employee whose death was caused by an intentional act or omission of the employer
           or by the employer’s gross negligence.

                                                                 4
848, 850 (Tex. 1995). When wrongful death statutes were first adopted, the question arose: Did the
statute create a new cause of action in the heirs of the deceased or did it simply transmit the
decedent’s right to sue? Id. at 851. Shortly after Section 26 was adopted, Texas Courts held that it
was the latter, finding that Section 26 did not grant a punitive recovery independent of a recognized
claim for compensatory relief. Id. (citing Ritz v. City of Austin, 20 S.W. 1029 (Tex. Civ. App. 1892,
writ ref’d)). Consequently, Section 26 does not abrogate the common-law requirement of actual
damages or extend a right to seek punitive damages to those with no cause of action under the
Wrongful Death Act.3 Id. at 852.
           Because Section 26 does not mandate any broader recovery than the decedent could have
obtained had he survived, numerous limitations on the heirs’ ability to pursue a punitive damage
claim have been upheld. For example, courts have limited or barred wrongful death actions because
of contracts executed by the decedent. See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 644 (Tex.
2009); see also Ross v. Union Carbide Corp., No. 14-07-00860-CV, 2009 WL 2589394, at *5 (Tex.
App.—Houston [14th Dist.] 2009, n.p.h.) (decedent’s release barred survivor’s subsequent claim
under Section 26 for punitive damages).
           Garrett distinguishes Fuller by arguing that Patterson’s position rests upon the proposition
that Brandon had no claim for actual damages against White due to the Workers’ Compensation Act
and that this proposition reads too much into Fuller’s holding. We do not reach this result by simply
finding that Brandon could not pursue a claim for actual damages against White but because he
waived the right to assert any claim against White. See Dickson v. Silva, 880 S.W.2d 785, 788 (Tex.
App.—Houston [1st Dist.] 1993, writ denied). Waiver attaches because Brandon’s decision to
accept coverage is an election of remedies. See Berry v. Gregg Indus. Servs., Inc., 907 S.W.2d 4,
6 (Tex. App.—Tyler 1994, writ denied) (employee who claims or accepts workers’ compensation
benefits has made an election of remedies and cannot pursue an intentional tort claim against his
employer or a co-employee).
           Even constitutional rights can be contractually waived. See, e.g., In re Prudential Ins. Co.
of Am., 148 S.W.3d 124, 129-33 (Tex. 2004) (contractual jury waivers do not violate public policy).



  3
      TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.001-.052 (Vernon 2008).

                                                            5
Because Brandon waived his right to assert a claim against White had he survived, his heirs have no
claim against White for punitive damages – notwithstanding Section 26. Garrett did not plead a
viable cause of action against White. The trial court, therefore, did not err by granting Patterson’s
and White’s motions to transfer venue. Issue One is overruled.
       C. Patterson’s No-Evidence Motion for Summary Judgment.
       Garrett next argues that the trial court erred by granting Patterson’s no-evidence motion for
summary judgment. No-evidence motions are reviewed under the same standard as a directed
verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Accordingly, we
review the evidence in the light most favorable to the nonmovant and disregard all contrary evidence
and inferences. Id. A trial court must grant a proper no-evidence motion for summary judgment
unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue
of material fact on the challenged element of the claim. TEX . R. CIV . P. 166a(i).
       Patterson filed a no-evidence motion and contended that there was no evidence that it was
grossly negligent. Patterson attached deposition testimony to its motion. Garrett correctly notes that
we may not consider this evidence unless it creates a fact issue. See Binur v. Jacobo, 135 S.W.3d
646, 651 (Tex. 2004). We do, however, consider the evidence tendered by Garrett, which included
complete copies of White, Greene, and Stroud’s depositions and a certified copy of OSHA’s report.
       Gross negligence consists of both an objective element and a subjective element. See Lee
Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). To establish gross negligence, a
plaintiff must prove by clear and convincing evidence (1) that, when viewed objectively, the
defendant’s acts or omissions involved an extreme degree of risk, considering the probability and
magnitude of the potential harm to others and (2) that the defendant had an actual, subjective
awareness of the risk involved but nevertheless proceeded with conscious indifference to the rights,
safety, or welfare of others. TEX . CIV . PRAC. & REM . CODE ANN . § 41.001(11) (Vernon 2008).
       Objectively, Patterson’s conduct must involve an extreme risk of harm, a significantly higher
threshold than the objective reasonable person test for negligence. Transp. Ins. Co. v. Moriel, 879
S.W.2d 10, 22 (Tex. 1994). Viewed objectively from the actor’s standpoint, the act or omission
complained of must depart from the ordinary standard of care to such an extent that it creates an
extreme degree of risk of harming others. Lee Lewis Constr., 70 S.W.3d at 784-86; Universal Servs.


                                                  6
Co. v. Ung, 904 S.W.2d 638, 641 (Tex. 1995); Moriel, 879 S.W.2d at 21-22. Extreme risk is a
function of both the magnitude and the probability of the anticipated injury to the plaintiff. Moriel,
879 S.W.2d at 22. Extreme risk is not a remote possibility of injury or even a high probability of
minor harm but, rather, the likelihood of serious injury to the plaintiff. Mobil Oil Corp. v. Ellender,
968 S.W.2d 917, 921 (Tex. 1998). The risk must be examined prospectively from the perspective
of the actor, not in hindsight. Moriel, 879 S.W.2d at 23. “An act or omission that is merely
thoughtless, careless, or not inordinately risky cannot be grossly negligent.” Id. at 22.
          Garrett argues that White was aware of the extreme danger of an employee being around the
drum while he attempted to repair the brake. Garrett makes this point by highlighting White’s
testimony that he repeatedly told the rig hands to stay away from the drum and that, on one occasion,
he pushed one of the rig hands away. Garrett also argues that White consciously ignored two safety
procedures. First, White did not utilize a lockout/tagout procedure. Second, White did not hang the
blocks.
          Lockout/tagout procedures are utilized to disable machines or equipment to prevent
unexpected energization, start-up, or release of stored energy in order to prevent injury. See 29
C.F.R. § 1910.147(a)(3). White testified that they could not utilize a lockout/tagout procedure while
they were working on the equipment because they needed to keep the rig’s motors running to hold
up the suspended weight of the string. The driller, Donnie Lee Stroud, confirmed that it was
necessary to keep the motors running. Garrett replies by pointing to an OSHA citation Patterson
received for failure to follow lockout procedures. Patterson responds that an OSHA citation is no
evidence of negligence and that we may not consider it. We need not resolve this question because
the record establishes that Patterson and OSHA entered into a settlement agreement and that OSHA
withdrew its allegation. Because Garrett presented no evidence that White could have utilized a
lockout/tagout procedure, his failure to do so is no evidence of gross negligence.
          White also denied that he could have hung the blocks. He testified that, while they were
working on the brake handle, it would have been impossible to hang the blocks because they could
not operate the rig until it was repaired. Stroud did not know if it would have been possible to hang
the blocks but testified that it would have been more dangerous to do so because, with the brake
handle bent, they were unable to control the string weight. Greene testified that it would have taken


                                                  7
30-45 minutes to hang the blocks and that White told him that doing so would have prevented the
accident, but Greene did not testify that the blocks could have been hung before the brake handle was
repaired.4
           Garrett failed to offer evidence that the blocks could have been mechanically or safely hung.
But if we assume Greene’s testimony that it would have taken 30-45 minutes to hang them or that
White’s statement that this would have prevented the accident is some evidence that White’s
decision not to hang the blocks created an extreme risk of harm, then we must determine whether
Garrett produced evidence that White was subjectively aware of the risk but proceeded with
conscious indifference. Unquestionably, White could have waited until after the brake handle was
repaired before replacing the drum cover. White was aware of the risk of being around the drum;
was aware that the motors were on and that the blocks were not hung; and knew that, while he and
Greene were repairing the brake handle, he could not see the drum. If White had waited to replace
the cover, Brandon would not have been standing near the drum when the brake handle was dropped.
Thus, Garrett produced evidence that White was aware of the risk.
           White, however, took steps to minimize the risk. Before starting the repair, White held a
safety meeting. The crew discussed not standing next to the drum. Brandon was personally warned
several times to stay away from the drum. The employees responsible for replacing the cover were
all warned to stay off the drum. White did not rush them but told them to take their time and to be
safe. Garrett produced no evidence that White proceeded with conscious indifference to Brandon’s
safety or welfare. White’s decision to replace the guard while he and Greene worked on the brake
handle is evidence of negligence. But if Brandon had followed White’s instructions and stayed off
the drum, this accident would have been prevented. Cf. Diamond Shamrock Ref. Co., L.P. v. Hall,
168 S.W.3d 164, 173 (Tex. 2005) (“[W]hat separates ordinary negligence from gross negligence is
the defendant’s state of mind; in other words, the plaintiff must show that the defendant knew about
the peril, but his acts or omissions demonstrate that he did not care.”). The trial court did not err by
granting Patterson’s summary judgment motion. Garrett’s second issue is overruled.




  4
      White did not recall making this statement. For purposes of our review, we assume that he did.

                                                                 8
       D. White’s Traditional Motion for Summary Judgment.
       White filed a traditional motion for summary judgment contending that Garrett’s claim
against him was barred by the exclusivity provision of the Workers’ Compensation Act. We have
previously held that Garrett had no viable cause of action against White. Garrett’s third issue is
overruled.
                                          IV. Holding
       The judgment of the trial court is affirmed.




                                                            RICK STRANGE
                                                            JUSTICE


November 5, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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