A Texas employee’s widow sought damages from her late husband’s employer because she claimed his death was caused by their gross negligence. While the Texas Workers’ Compensation Act does not prohibit such recovery, the term “gross negligence” does require the plaintiff to provide both objective and subjective elements to prove the negligence. Since she could not provide evidence that the employer had subjective awareness of the risks involved in her late husband’s work and had him proceed anyway, the Court of Appeals reversed a trial court’s decision awarding her damages.

Billy Dickson worked for Bell Helicopter as an engineer between 1962 and 1968. He did not perform direct, hands-on, work with asbestos but did supervise workers who were building testing enclosures that he designed. He was not allowed to touch tools because of union rules so his exposure was more intermittent and occurred a few times a month during the six-year span of his employment. The enclosures were made of millboard containing asbestos and while there was no exposure to the completed millboard there was significant exposure during the cutting of the boards while they were constructing enclosures.

Shirley Dickson, his wife, filed the suit on his behalf. The court said that gross negligence consisted of objective and subjective elements. While there was objective evidence that the act involved significant risk and potential harm, there was not enough evidence that the employer had subjective awareness of risk this and still chose to proceed with indifference to the safety of their workers. The objective risk couldn’t be examined in hindsight. They determined for the subjective part of the argument, his widow couldn’t prove that Bell knew cutting the boards posed a serious risk of Dickson developing mesothelioma as a result, and still let him do it anyway. Dickson himself testified before his death that he did not know there was asbestos in the millboard until a few years before his testimony. The court determined Bell could not be liable.

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