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Texas Gross Negligence

© 2014 Mark Courtois

Gross negligence refers that conduct which is beyond ordinary negligence because it involves the actor's state of mind, a disregard for the safety of others. Gross negligence is one of the grounds which allows a plaintiff to recover punitive damages. Tex. Civ. Prac & Rem Code. § 41.003(a) (West 2003). Unlike ordinary negligence where the evidentiary burden is a preponderance of the evidence (i.e., more likely than not), the evidentiary burden on the plaintiff to prove a defendant was grossly negligent is by "clear and convincing" evidence. This requires a measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established. Tex. Civ. Prac. & Rem. Code § 41.001(2).

Gross negligence consists of both an objective and a subjective component. U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012). The two elements of gross negligence are: 1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and 2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994)); see Tex. Civ. Prac. & Rem. Code § 41.001(11).

Under the first element, the objective standard, an extreme risk is "not a remote possibility of injury or even a high probability of minor harm, but rather requires a showing of the likelihood of serious injury to the plaintiff." Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). It requires "an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight." Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994). Under the second element, the subjective standard, "actual awareness means the defendant knew about the peril, but its acts or omissions demonstrated that it did not care." Id. Circumstantial evidence is sufficient to prove either element, as long as it is clear and convincing. Id. Evidence of simple negligence is not enough to prove either the objective or subjective elements of gross negligence. Id. The fact that a defendant exercises some degree of care, does not insulate the defendant from gross negligence liability.

The grossly negligent act of an employee can be imputed to his employer if one of four factors is present: 1) the principal authorized the doing or manner of the act; 2) the agent was unfit and the principal was reckless in employing him; 3) the agent was employed in a managerial capacity and was acting in the scope of his employment; or 4) the employer or a manager of the employer ratified or approved the act. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex. 1997).