¶1concurring and dissenting.
¶2I concur with the result reached by the majority except on the question of gross negligence.
¶3Although the consequence of Serv-Air’s negligence was tragic and enormous, the record does not support a finding that Serv-Air acted with conscious indifference to the rights, safety or welfare of others in the face of extreme risk. SeeUniversal Services Co., Inc. v. Ung, 904 S.W.2d 638, 641 (Tex.1995). To the contrary, the record shows Serv-Air attempted to repair the aircraft, albeit negligently.
¶4Considering what the Serv-Air maintenance personnel were told when the aircraft was turned over to them — that the flight data recorder circuit breaker would not reset and that fuel would not transfer aft — there is nothing to suggest that what they did or failed to do created an “extreme degree of risk” or the “likelihood of serious injury.” Id.Moreover, there is no evidence that Serv-Air had “actual, subjective awareness” of the risk involved; that is, that they knew the aircraft was not airworthy, but released it to the pilots anyway. Id.In short, neither the objective nor the subjective prongs of the gross negligence test have been satisfied. See id.
¶5I therefore dissent to that part of the majority opinion and judgment that affirms the gross negligence finding and the award of punitive damages.