WAL-MART STORES, INC., Individually and Wal-Mart Stores, Inc. D/B/A Sam's Wholesale Club, Petitioners, v. Sarah ALEXANDER and Sam Alexander, Respondents, 868 S.W.2d 322

PHILLIPS, Chief Justice, delivered the opinion of the Court, in which Justices GONZALEZ, HIGHTOWER, HECHT, CORNYN, and ENOCH join. Sarah Alexander was injured when she fell in front of Wal-Mart’s store. The primary issues are whether Wal-Mart had a duty to maintain the area where Mrs. Alexander fell, and, if so, whether there is any evidence that Wal-Mart was grossly negligent. We conclude that although Wal-Mart did have a duty to maintain the area, there is no evidence that its failure to do so constituted gross negligence.

We therefore affirm the court of appeals’ judgment as to actual damages and reverse as to punitive damages. 827 S.W.2d 420. I On January 21, 1989, Sarah Alexander, then 77 years old, fell and broke her hip after tripping over a ⅝" ridge at the base of a concrete ramp leading from the parking lot to the sidewalk in front of the Sam’s Wholesale Club in Brownsville. The Sam’s store was owned by Wal-Mart Stores, Inc. (“Wal-Mart”), but Wal-Mart leased the building from Roy L. Martin & Associates (“Martin”).

The leased premises included only the area inside the exterior walls, and thus did not include the sidewalk or the ramp area. The ramp did not exist when the lease was executed. Wal-Mart subsequently built the ramp on its own initiative and at its own expense, apparently for shopping carts. Although the base of the ramp was apparently flush with the parking lot when the ramp was completed, the parking lot subsequently settled after Martin repaved it. The resulting ridge existed by the time the store opened in October 1988. It is undisputed that Wal-Mart’s management knew about the ridge well before Mrs.

Alexander’s accident. Willie Enriquez, the store’s sales manager, stumbled over the ridge in November 1988. Although he apparently did not fall or injure himself, he did scuff his shoes. Enriquez, who considered the ridge a serious safety hazard, informed Robert Guerra, the store’s general manager, about the problem. Guerra acknowledged that the ridge had on occasion caused bottles to be jostled from shopping carts, but he did not consider it a safety hazard prior to Mrs. Alexander’s accident because no one had ever fallen.

Enriquez also testified that he informed Wal-Mart district management in Houston about the ridge in late December 1988 or early January 1989. Wal-Mart repaired the ridge in February 1989, after Mrs. Alexander’s accident, at an estimated cost of $400.00. Mrs. Alexander sued Wal-Mart and Martin for actual and punitive damages, and her husband brought claims for loss of consortium and loss of household services. The Alexanders settled their claims against Martin prior to trial for $60,000. Against Wal-Mart, the jury awarded Mrs. Alexander $285,000 in actual damages and $400,000 in punitive damages, and Mr.

Alexander $105,-000 in actual damages. The trial court reduced Mrs. Alexander’s actual damage award by $100,000, after concluding that the jury had awarded this amount for loss of consortium, to which she was not entitled. The trial court otherwise rendered judgment on the jury’s verdict, after offsetting the amount of Martin’s settlement. The court of appeals affirmed. II Wal-Mart first argues that it owed no duty to Mrs. Alexander concerning the dangerous condition created by the ridge.

While acknowledging the general rule that an occupier of premises owes a duty to use ordinary care to keep the premises in a reasonably safe condition for invitees, see J. Weingarten, Inc. v. Razey, 426 S.W.2d 538, 539 (Tex.1968), Wal-Mart contends that it was not the occupier of the area where Mrs. Alexander was injured. Wal-Mart leased from Martin only the area from the exterior walls of its store inward; Martin retained possession of the parking lot, sidewalks, and other common areas.

The lease between Wal-Mart and Martin provided as follows: “The maintenance by Lessor is to include, without limitation, the following: (

a) Maintaining the surfaces of all sidewalks, paved and parking areas in a smooth and evenly-covered condition....” Since Martin retained possession of the area where Mrs. Alexander fell, and under the lease had an express duty to maintain that area, Wal-Mart contends that it owed no duty. Wal-Mart’s argument is without merit. On its own initiative and at its own expense, Wal-Mart built the ramp after leasing the premises. By so doing, it assumed actual control of the ramp area. A lessee is responsible for those areas adjacent to the demised premises which it actually controls.

See Atchison, Topeka and Santa Fe Ry. v. Smith, 563 S.W.2d 660, 665-66 (Tex.Civ.App.—Waco 1978, writ ref'd n.r.e.); Howe v. Kroger Co., 598 S.W.2d 929, 930 (Tex.Civ.App.—Dallas 1980, no writ) (“[T]he phrase ‘occupier of premises,’ as interpreted by Texas courts, means the party in control of premises.”). See also Restatement (Second) of Torts § 328E (1965) (possessor of land includes a person “in occupation of land with intent to control it” regardless of whether the occupation is rightful between the possessor and some third person). Wal-Mart relies on Johnson v.

Tom Thumb Stores, Inc., 771 S.W.2d 582 (Tex.App.-Dallas 1989, writ denied), and Howe v. Kroger Co., supra, to support its argument. These cases are not on point, however, as they merely hold that a lessee has no responsibility for premises defects in common areas that the lessee does not control. 771 S.W.2d at 584-85; 598 S.W.2d at 931. While conceding that it built the ramp where Ms. Alexander fell, Wal-Mart argues that it was not responsible for creating the ridge between the ramp and the parking lot which actually caused the fall. Wal-Mart offered evidence that no ridge existed when it completed the ramp.

Rather, it contends, the uncontradict-ed proof established that the ridge formed only after Martin repaved the lot and the new pavement settled from automobile traffic. Our holding, however, is premised not on a factual determination that Wal-Mart created the hazard, but rather on a legal conclusion that it had a duty of reasonable care to maintain the safety of the ramp once it built and exercised control over it. Wal-Mart argues that the lease expressly imposed a duty on Martin to maintain the parking lot and sidewalks, and that Wal-Mart’s installation of the ramp did not relieve Martin of this duty.

As Martin is not a party to this appeal, it is unnecessary for us to determine what duty it owed to Mrs. Alexander. Even if Martin did owe a duty of care as the lessor, however, Wal-Mart’s duty based on its actual control of the ramp area would remain. Ill A Wal-Mart next argues that there is no evidence to support the jury’s finding of gross negligence. The common-law definition of gross negligence is set forth in Burk Royalty Co. v.

Walls, 616 S.W.2d 911, 920 (Tex.1981): 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 a conscious indifference to the right or welfare of the person or persons to be affected by it. Without objection from either party as to the form of the definition, the trial court defined gross negligence for the jury in accordance with Burk Royalty.

This definition, which is unique to Texas, combines the two recognized tests for gross negligence in American jurisprudence: “entire want of care” and “conscious indifference.” See Williams v. Steves Industries, Inc., 699 S.W.2d 570, 572-73 (Tex.1985); John Roberson, Comment, Exemplary Damages for Gross Negligence: a Definitional Analysis, 33 Baylor L.Rev. 619, 622 (1981). The “entire want of care” test focuses on the objective nature of defendant’s conduct, distinguishing gross negligence as being different in degree or quantity from ordinary negligence. Williams, 699 S.W.2d at 572; Roberson, supra at 622.

The “conscious indifference” test focuses on the defendant’s mental state, and thus “stresses a qualitative distinction from ordinary negligence.” Roberson, supra at 622. Under this approach, the actor, although not actually intending to cause harm, must have proceeded with knowledge that harm was a “highly probable” consequence. See Prosser and Keeton on the Law of Torts, § 34, at 213 (5th ed. 1984).

In Burk Royalty, the Court emphasized the conscious indifference component, observing as follows: What lifts ordinary negligence into gross negligence is the mental attitude of the defendant; that is what 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. 616 S.W.2d at 922.

Because of this requirement of conscious indifference, gross negligence can never be the result of “momentary thoughtlessness, inadvertence, or error of judgment.” Id at 920. The Court noted, however, that this mental component may be proved indirectly through a defendant’s conduct. Id at 922. After Burk Royalty, we continued to emphasize the conscious indifference component of the gross negligence definition. See, e.g., International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex.1985); Trenholm v. Ratcliff, 646 S.W.2d 927, 933 (Tex.1983); Neely v. Community Properties, Inc., 639 S.W.2d 452 (Tex.1982).

In Williams v. Steves Industries, Inc., 699 S.W.2d 570 (Tex.1985), however, we made clear that the test for gross negligence contains both an objective and a subjective component. After noting that the Texas definition is a “hybrid” which “combines both of the traditional tests for gross negligence,” we explained that grossly negligent conduct must impose an objectively higher risk than ordinary negligence, or, as we said in Williams, an extreme degree of risk. Id. at 573.

But we also reaffirmed the mental component, holding that the defendant must have subjective awareness of the extreme risk created by its conduct. Id. Williams requires both of these prongs to be met. The “extreme risk” component of gross negligence recognized in Williams is consistent with other jurisdictions: The usual meaning assigned to “willful,” “wanton,” or “reckless,” according to taste as to the word used, is that the actor has intentionally done

an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. Prosser and Keeton, supra at 213. See also James D. Ghiardi and John J. Kireher, Punitive Damages: Law and Practice, § 5.01 (rev. 1984) (“[T]he defendant knows, or should have reason to know not only that his conduct creates an unreasonable risk of harm, but also that there is a strong probability ... that the harm will result.”) (emphasis added).

More importantly, this objective element is necessary to clearly distinguish between conduct which is deserving of punishment and that which merely demands restitution. While we recognized in Williams that “[n]o exact line can be drawn between negligence and gross negligence,” 699 S.W.2d at 573, in general the situation must be such that “the act would reasonably be thought to be highly dangerous....” Id. See also Port Terminal Railroad Assoc. v.

Richardson, 808 S.W.2d 501, 513 (Tex.App.-Houston [14th Dist.] 1991, writ denied) (inadequate “flagging” by railroad signalman did not constitute evidence of gross negligence, even though he knew of danger to approaching cars); Terminix, Inc. v. Right Away Foods Corp., 771 S.W.2d 675, 681 (Tex.App.-Corpus Christi 1989, writ denied) (exterminator’s use of twice the normal level of poison and his failure to adequately instruct the client on safety precautions was not evidence of gross negligence); Hylander v.

Groendyke Transport, Inc., 732 S.W.2d 692, 695 (Tex.App.—Corpus Christi 1987, writ ref'd n.r.e.) (no evidence of gross negligence where truck driver, after suffering a tire blowout at night, reduced his speed to 30 m.p.h. and continued driving in the right-hand lane). We reaffirm that a gross negligence finding may be upheld on appeal only if there is some evidence that

a) the defendant’s conduct created an extreme risk of harm, and

b) the defendant was aware of the extreme risk. With this definition in mind, we turn to the issue of whether any evidence supports the jury’s finding of gross negligence in this case. B The traditional no-evidence test requires the reviewing court to consider only the evidence favorable to the jury finding and to disregard evidence to the contrary. See, e.g., Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992). We held in Burk Royalty that this traditional test should apply to gross negligence findings, 616 S.W.2d at 920, and we also reaffirm that holding.

Under this test, however, there must be some evidence that logically supports, either directly or inferentially, both elements of gross negligence. Evidence of simple negligence will not suffice to prove either. See City of Gladewater v. Pike, 727 S.W.2d 514, 524 (Tex.1987). We hold that, on the record before us, there is no evidence that Wal-Mart’s conduct created an extreme risk of harm. The store had averaged 50,000 patrons per month in the three months it had been open before Mrs. Alexander’s accident.

There was no evidence that anyone had tripped and fallen over the ridge before she did, and evidence that only one person, Enriquez, had as much as stumbled there. Instead, Wal-Mart’s complaints from patrons involved only bottles and other items falling from shopping carts. The negligent failure to warn of or repair timely this defect simply did not impose an extreme risk creating the likelihood of serious injury. While accepting the validity of the “extreme risk” component of gross negligence, the dissent appears to argue that any hazard that could potentially cause serious injury must be considered extreme.

Post at 333. Although it was certainly conceivable that Wal-Mart’s failure to repair the ridge could result in a serious injury, this conclusion is true for virtually all negligent conduct in a personal injury context. The dissent’s approach would inevitably eliminate any mean-mgful distinction between negligence and gross negligence. Such an approach is clearly inconsistent with Williams, where this Court held that allowing an unlicensed driver to operate an eight-ton equipment repair truck did not create an extreme risk justifying a punitive award as a matter of law.

Having concluded that there is no evidence on this record of an extreme degree of risk, we need not and indeed cannot consider the second prong; whether there is any evidence that Wal-Mart was aware of such a risk. Wal-Mart’s negligent maintenance of the ridge resulted in a judgment to Mrs. Alexander for actual damages of $155,000 plus prejudgment and postjudgment interest and costs, all of which we affirm. But there is no evidence that this ridge was so highly dangerous that it constituted an extreme risk creating the likelihood of serious injury.

Accordingly, we reverse the judgment of the court of appeals on this issue, and render judgment that Mrs. Alexander take nothing on her claim for punitive damages. IV Wal-Mart next challenges a portion of Mr. Alexander’s damage award. Question four asked the jury to assess one amount as Mr. Alexander’s damages, considering “loss of household services” and “loss of consortium.” The jury returned an answer of $105,000, indicating in the margin of the question sheet that $5,000 of its award was allocated to loss of household services and $100,000 was allocated to loss of consortium.

Wal-Mart contends that we may consider the jury’s margin notes as separate damage awards, and argues that the $100,000 award should be vacated because there is no evidence that Mr. Alexander suffered a loss of consortium. A jury’s marginal notations generally may not be considered on appeal. See First National Bank in Dallas v. Zimmerman, 442 S.W.2d 674, 677-78 (Tex.1969). They reflect the jury’s mental processes, but they are not part of its verdict. Id. at 678.

Wal-Mart contends that the present case is distinguishable from Zimmerman because the trial court, without objection from the Alexanders, used the jury’s margin notes in question three as a basis for reducing Mrs. Alexander’s actual damages. Because the Alexanders allowed the trial court to use the question three margin notes, Wal-Mart urges, they may not challenge this Court’s authority to consider the question four margin notes.

Even if the damage elements may be reviewed separately as advocated by Wal-Mart, an issue we do not decide, Wal-Mart’s argument that there is no evidence of any loss of consortium damages fails. Spousal consortium is generally defined as “the mutual right of the husband and wife to that affection, solace, comfort, companionship, society, assistance, and sexual relations necessary to a successful marriage.” Whittlesey v. Miller, 572 S.W.2d 665, 666 (Tex.1978).

In determining whether there is any evidence of loss of consortium, we consider only the evidence and inferences that tend to support the finding, disregarding all evidence and inferences to the contrary. See Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992). Applying this standard of review, the record reflects that, prior to the accident, the Alexanders spent most of their time together, enjoying walking, gardening, and fishing. Now, Mrs. Alexander has difficulty walking and bending. They no longer engage in their outdoor activities, and instead spend much of their time watching television.

The Alexanders also traveled regularly before the accident, but this has become very difficult because of Mrs. Alexander’s condition. The foregoing is at least some evidence that Mr. Alexander has suffered a loss of consortium. Wal-Mart relies on Delta Drilling Co. v. Cruz, 707 S.W.2d 660 (Tex.App.—Corpus Christi 1986, writ ref'd n.r.e.), where the court held that testimony from the primary victim concerning activities in which he engaged with his family was no evidence of his wife’s loss of consortium. The court of appeals’

summary of the evidence in Cruz does not indicate that the husband’s injury interfered with the family activities, 707 S.W.2d at 667, and thus Cruz is distinguishable from the present case. Y Wal-Mart finally argues that the trial court erred by supplying a dictionary to the jury during its deliberations. The jurors requested a dictionary because they were unsure of the meaning of “flagrant.” All parties agreed that the court should supply a dictionary, which it did. Wal-Mart argues that this was fundamental error, which may be asserted on appeal even though Wal-Mart agreed to the court’s action.

Fundamental error exists “in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas.” Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982). We express no opinion as to whether the trial court’s action was error at all, but we do hold that, if it did constitute error, it did not directly and adversely affect the public interest. We accordingly affirm the judgment of the court of appeals as to tlje award of actual damages to Mr. and Mrs. Alexander.

We reverse the judgment of the court of appeals as to punitive damages, and we render judgment that Mrs. Alexander take nothing on her punitive damage claim. . Mrs. Alexander's accident occurred in 1989, and thus her suit is governed by the 1987 "tort reform” legislation. See Acts 1987, 70th Leg., 1st C.S., ch. 4, § 4.05(a) (legislation applies to suits filed on or after September 2, 1987). This legislation contains a slightly different definition of gross negligence: "Gross negligence” means more than momentary thoughtlessness, inadvertence, or error of judgment.

It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected. Tex.Civ.Prac. & Rem.Code § 41.001(5) (Vernon Supp.1993). As neither party objected to the trial court’s definition, we need not decide to what extent, if any, the statutory definition differs from the common law articulation of gross negligence. . Different jurisdictions use varying terminology to describe the necessary mental state under this approach, including “willful,” "wanton,” or “reckless” disregard.

Prosser and Keeton, supra at 212-213. . The 1987 tort reform act codifies the rule that evidence of ordinary negligence cannot satisfy plaintiff's burden of proving gross negligence. Tex.Civ.Prac. & Rem.Code § 41.003(b) (Vernon Supp.1993). . The dissent cites a memorandum marked with the notation “sense of urgency.” 868 S.W.2d 332.

This was a computer generated checklist of "to do” items on which Enriquez had penciled a note to call the district management about the "front entrance curb,” and at the bottom had written “sense of urgency." Although the evidence regarding the meaning of this note is disputed, in a no evidence review, we must make all reasonable inferences supporting the verdict.

Thus, while we must accept as true that Enriquez considered repair of the ridge urgent, that does not ipso facto make the defect an extreme degree of risk under Williams. .Wal-Mart contends in a separate point of error that the trial court erroneously admitted evidence of its gross sales. The thrust of Wal-Mart's argument is that this evidence prejudiced the juty's award of punitive damages. Because we vacate the punitive damage award for lack of evidence of gross negligence, we need not reach the gross sales issue. . The jury awarded $120,000 to Mrs.

Alexander for future damages, considering the elements of mental anguish, physical impairment and loss of consortium. In the margin, the jury indicated that $100,000 of this amount was allocated to Mrs. Alexander's loss of consortium. Wal-Mart argued to the trial court that loss of consortium was not a proper element of damage for the primary victim, and thus Mrs. Alexander's future damage award should be disregarded in its entirety or, alternatively, reduced by $100,000.

The Alexanders did not dispute the trial court’s authority to consider the margin notes to reduce, rather than entirely disregard, the jury's answer, and the trial court did reduce Mrs. Alexander's damages by $100,000. . Wal-Mart argues only that there is no evidence of loss of consortium. It does not alternatively argue that, if there is some evidence, it is legally insufficient to support damages of $100,000, and we therefore express no opinion on this issue.