[138]*138OPINION
MAUZY, Justice.
This personal injury case arose when, in 1976, a threaded, twist-type bottle cap blew off a Seven-Up soft drink bottle and struck James Aim in the eye, severely injuring him. Aim brought suit against the Aluminum Company of America (Alcoa), JFW Enterprises, Inc., and Lewis & Coker Supermarket.1 At the close of trial, the jury found that Alcoa was grossly negligent and that its negligence was a proximate cause of Aim’s injuries. The trial court rendered judgment on the verdict in favor of Aim for his actual damages but disregarded the jury’s answers on gross negligence and therefore refused to award the exemplary damages. The court of appeals then reversed and remanded the cause to the trial court, holding that the evidence of Alcoa’s negligence was factually insufficient and that Alcoa had no duty to warn Aim of possible bottle cap blow-off. 687 S.W.2d 374.
In our first consideration of this cause, we held that Alcoa’s role as a designer and manufacturer of the processing equipment gave rise to a duty to warn the ultimate consumer about the possibility of cap blow-off, which duty could be satisfied by proving that Alcoa’s intermediary, JFW, “was adequately trained and warned, familiar with the propensities of the product, and capable of passing on a warning.” 717 S.W.2d 588, 592 {Aim I). We remanded the cause to the court of appeals for consideration of Alcoa’s factual insufficiency point regarding the inadequacy of its warning to JFW. Additionally, we reinstated the jury’s finding of gross negligence and remanded to the court of appeals for its consideration of any points raised by Alcoa concerning that issue.
On remand, the court of appeals held that the jury’s finding on the inadequacy of Alcoa’s warning to JFW was based on factually sufficient evidence. It further determined, however, that the evidence was factually insufficient to support the jury’s finding on gross negligence and remanded the issue of gross negligence to the trial court. 753 S.W.2d 478. We now reverse.
I
Two issues are presented: (1) whether the court of appeals erred by remanding the gross negligence issue, and (2) whether the court of appeals erred by not remanding the ordinary negligence issue.
Alcoa makes two arguments in support of its contention that the court of appeals erred by not remanding the entire cause to the trial court. Alcoa asserts first that it was not given an opportunity to introduce evidence of its warning to the Seven-Up Corporation in light of the “new” legal duty placed on it by this court in Aim I. Alcoa argues second that the issue of ordinary negligence must be remanded because the court of appeals refused to review the evidence of its warning to Seven-Up.
To put Alcoa’s arguments in the proper perspective, it is necessary to understand the relationship of the entities involved. The undisputed evidence shows that during the 1960’s, Alcoa designed, patented, manufactured, and marketed a closure system for applying aluminum caps to carbonated soft drink bottles. The closure system included a capping machine which applied threaded, pilfer-proof caps. Under a franchise agreement, Seven-Up licensed JFW to bottle its product. In 1969 Alcoa sold such a capping machine to JFW for use by Houston 7-Up Bottling Company, an unincorporated division of JFW. JFW purchased the aluminum capping material from W.H. Hutchinson & Son, Inc., which manufactured the pilfer-proof caps under licensing agreements with Alcoa. JFW sold the bottled soft drink to Lewis & Coker Supermarket, which sold a bottle to Aim.
As noted above, we held in Aim I that Alcoa had a duty to warn the ultimate consumer, Aim, but that Alcoa could satisfy this duty by proving that its intermediary, JFW, was adequately trained and warned, familiar with the propensities of the product, and capable of passing on a [139]*139warning to the ultimate consumer. Alcoa contends that because of this “new” duty it was prevented from offering evidence to the jury on this issue.
Assuming arguendo that our holding in Aim I did place a new duty on Alcoa, its claim that it was not allowed to introduce evidence of its warnings to Seven-Up is not supported by the record. At trial, Alcoa offered evidence of training sessions it gave to Seven-Up on the proper application of the aluminum caps and the danger of cap blow-off. The evidence consisted of office correspondence between Alcoa and representatives of Seven-Up which contained references to slide show presentations and training seminars on the proper operation of the Alcoa closure system. Aim objected to the admission of the evidence, arguing it was irrelevant. Alcoa argued, however, that because Aim sought exemplary damages, the evidence was material for the purpose of showing the efforts it made to provide information and training on the proper use of its closure system.
The trial court sustained Aim’s objection to the general offer but allowed the admission of the evidence as a limited offer. See Tex.R.Civ.P. 105. However, since Aim did not request a limiting instruction, admission of the evidence was, for all practical purposes, a general offer. See Tex.R.Civ.P. 105(a); Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 365 (Tex.1987); Scotchcraft Bldg. Materials, Inc. v. Parker, 618 S.W.2d 835, 837 (Tex.Civ.App. —Houston [1st Dist.] 1981, writ ref’d n.r. e.). Therefore, the jury was afforded the opportunity to consider the evidence of Alcoa’s warnings to Seven-Up in its deliberation on ordinary negligence.
II
Alcoa’s second argument is that the court of appeals erred by not considering the evidence of its warning to Seven-Up in connection with the ordinary negligence issue.
The question is thus posed whether Seven-Up was an appropriate intermediary through which Alcoa could have fulfilled its duty to warn the ultimate consumer. We noted in Aim I that a manufacturer, as well as a supplier, of a product has a duty to inform users of hazards associated with the use of its products. The Restatement (2d) of Torts § 388 2 describes the manufacturer’s duty to warn the ultimate user of its product, while comment n to § 388 states that this duty may be discharged by an adequate warning to the intermediary through whom the chattel is supplied. The pertinent part of comment n reads:
In all such cases the question may arise as to whether the person supplying the chattel is exercising that reasonable care, which he owes to those who are to use it, by informing the third person through whom the chattel is supplied of its actual character.
Giving to the third person through whom the chattel is supplied all information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel.
Free access — add to your briefcase to read the full text and ask questions with AI
[138]*138OPINION
MAUZY, Justice.
This personal injury case arose when, in 1976, a threaded, twist-type bottle cap blew off a Seven-Up soft drink bottle and struck James Aim in the eye, severely injuring him. Aim brought suit against the Aluminum Company of America (Alcoa), JFW Enterprises, Inc., and Lewis & Coker Supermarket.1 At the close of trial, the jury found that Alcoa was grossly negligent and that its negligence was a proximate cause of Aim’s injuries. The trial court rendered judgment on the verdict in favor of Aim for his actual damages but disregarded the jury’s answers on gross negligence and therefore refused to award the exemplary damages. The court of appeals then reversed and remanded the cause to the trial court, holding that the evidence of Alcoa’s negligence was factually insufficient and that Alcoa had no duty to warn Aim of possible bottle cap blow-off. 687 S.W.2d 374.
In our first consideration of this cause, we held that Alcoa’s role as a designer and manufacturer of the processing equipment gave rise to a duty to warn the ultimate consumer about the possibility of cap blow-off, which duty could be satisfied by proving that Alcoa’s intermediary, JFW, “was adequately trained and warned, familiar with the propensities of the product, and capable of passing on a warning.” 717 S.W.2d 588, 592 {Aim I). We remanded the cause to the court of appeals for consideration of Alcoa’s factual insufficiency point regarding the inadequacy of its warning to JFW. Additionally, we reinstated the jury’s finding of gross negligence and remanded to the court of appeals for its consideration of any points raised by Alcoa concerning that issue.
On remand, the court of appeals held that the jury’s finding on the inadequacy of Alcoa’s warning to JFW was based on factually sufficient evidence. It further determined, however, that the evidence was factually insufficient to support the jury’s finding on gross negligence and remanded the issue of gross negligence to the trial court. 753 S.W.2d 478. We now reverse.
I
Two issues are presented: (1) whether the court of appeals erred by remanding the gross negligence issue, and (2) whether the court of appeals erred by not remanding the ordinary negligence issue.
Alcoa makes two arguments in support of its contention that the court of appeals erred by not remanding the entire cause to the trial court. Alcoa asserts first that it was not given an opportunity to introduce evidence of its warning to the Seven-Up Corporation in light of the “new” legal duty placed on it by this court in Aim I. Alcoa argues second that the issue of ordinary negligence must be remanded because the court of appeals refused to review the evidence of its warning to Seven-Up.
To put Alcoa’s arguments in the proper perspective, it is necessary to understand the relationship of the entities involved. The undisputed evidence shows that during the 1960’s, Alcoa designed, patented, manufactured, and marketed a closure system for applying aluminum caps to carbonated soft drink bottles. The closure system included a capping machine which applied threaded, pilfer-proof caps. Under a franchise agreement, Seven-Up licensed JFW to bottle its product. In 1969 Alcoa sold such a capping machine to JFW for use by Houston 7-Up Bottling Company, an unincorporated division of JFW. JFW purchased the aluminum capping material from W.H. Hutchinson & Son, Inc., which manufactured the pilfer-proof caps under licensing agreements with Alcoa. JFW sold the bottled soft drink to Lewis & Coker Supermarket, which sold a bottle to Aim.
As noted above, we held in Aim I that Alcoa had a duty to warn the ultimate consumer, Aim, but that Alcoa could satisfy this duty by proving that its intermediary, JFW, was adequately trained and warned, familiar with the propensities of the product, and capable of passing on a [139]*139warning to the ultimate consumer. Alcoa contends that because of this “new” duty it was prevented from offering evidence to the jury on this issue.
Assuming arguendo that our holding in Aim I did place a new duty on Alcoa, its claim that it was not allowed to introduce evidence of its warnings to Seven-Up is not supported by the record. At trial, Alcoa offered evidence of training sessions it gave to Seven-Up on the proper application of the aluminum caps and the danger of cap blow-off. The evidence consisted of office correspondence between Alcoa and representatives of Seven-Up which contained references to slide show presentations and training seminars on the proper operation of the Alcoa closure system. Aim objected to the admission of the evidence, arguing it was irrelevant. Alcoa argued, however, that because Aim sought exemplary damages, the evidence was material for the purpose of showing the efforts it made to provide information and training on the proper use of its closure system.
The trial court sustained Aim’s objection to the general offer but allowed the admission of the evidence as a limited offer. See Tex.R.Civ.P. 105. However, since Aim did not request a limiting instruction, admission of the evidence was, for all practical purposes, a general offer. See Tex.R.Civ.P. 105(a); Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 365 (Tex.1987); Scotchcraft Bldg. Materials, Inc. v. Parker, 618 S.W.2d 835, 837 (Tex.Civ.App. —Houston [1st Dist.] 1981, writ ref’d n.r. e.). Therefore, the jury was afforded the opportunity to consider the evidence of Alcoa’s warnings to Seven-Up in its deliberation on ordinary negligence.
II
Alcoa’s second argument is that the court of appeals erred by not considering the evidence of its warning to Seven-Up in connection with the ordinary negligence issue.
The question is thus posed whether Seven-Up was an appropriate intermediary through which Alcoa could have fulfilled its duty to warn the ultimate consumer. We noted in Aim I that a manufacturer, as well as a supplier, of a product has a duty to inform users of hazards associated with the use of its products. The Restatement (2d) of Torts § 388 2 describes the manufacturer’s duty to warn the ultimate user of its product, while comment n to § 388 states that this duty may be discharged by an adequate warning to the intermediary through whom the chattel is supplied. The pertinent part of comment n reads:
In all such cases the question may arise as to whether the person supplying the chattel is exercising that reasonable care, which he owes to those who are to use it, by informing the third person through whom the chattel is supplied of its actual character.
Giving to the third person through whom the chattel is supplied all information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel. The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it.
Restatement (2d) of Torts § 388 comment n (1965) (emphasis added).
Alcoa designed, patented, manufactured and marketed the closure system which it sold to JFW. JFW purchased the capping machine directly from Alcoa and the cap[140]*140ping materials from a company manufacturing them under an Alcoa license. Seven-Up was never in the chain of distribution and merely licensed JFW to bottle its product. At no time did Seven-Up exercise control over the instrumentality which caused the injury, i.e., the closure system.
Given these circumstances, Seven-Up could hot be “the third person through whom the chattel is supplied” within the meaning of comment n. We conclude, therefore, that Seven-Up was not, as a matter of law, an appropriate intermediary through which Alcoa could have discharged its duty to warn the ultimate consumer, Aim.
Ill
We turn our attention finally to the issue of gross negligence. He argues the evidence shows conclusively that Alcoa was consciously indifferent about the possibility of bottle cap blow-off. We agree.
Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of conscious indifference to the right or welfare of the person or persons to be affected by it. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 920 (Tex.1981).
What lifts ordinary negligence into gross negligence justifies the penal nature of the imposition of exemplary damages. 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.
Id. at 922 (emphasis in original).
Alcoa’s own witnesses testified that it had actual knowledge about the danger of serious injury resulting from “weak threads” produced by bottlers using the Alcoa closure system as early as 1967, when the first suit was filed against Alcoa for a personal injury which had resulted from cap blow-off. Alcoa’s witnesses also testified that by 1975, thirty-four such lawsuits had been filed against Alcoa. However, as this Court noted in Aim I,
[t]he record shows that the only “warning” given JFW of the hazards associated with bottle cap blow off came in an Alcoa owner’s manual distributed [in 1970] with its capping machine. The statement in that manual read: “Leakage or closure blow off at lower pressures can occur when the closure application is improper or the glassware is not within specification.” The statement did not warn that serious personal injuries could result from cap blow off. The language was not designated as a warning, and it was not set off in type different from that used throughout the manual.
717 S.W.2d at 593. The undisputed evidence shows that at the time of Aim’s injury in 1976, Alcoa was acutely aware of the danger of cap blow-off, but there is no evidence that it did anything to warn JFW or the purchasers of JFW’s products about the very real nature of this danger. In short, there is no evidence in the record to negate the jury’s finding of gross negligence. We hold, therefore, that the court of appeals erred in remanding the gross negligence issue.
Accordingly, the judgment of the court of appeals is reversed and the judgment of the trial court modified so as to reinstate the exemplary damages awarded in the jury’s verdict and, as modified, is affirmed.
GONZALEZ, J., files a dissenting opinion in which PHILLIPS, C.J., and COOK and HECHT, JJ., join.