This article will help you understand how gross negligence works under Texas law

As we discussed in our negligence section, courts penalize those who fail to live up to a reasonable standard of care. This is a standard much lower than what we would think of as a hardened criminal like a murderer, but something more than a harmless mistake.

But what about behavior that falls somewhere in between? When a perpetrator acted with something more than unreasonable conduct but less than full-on criminal intent, we call that "gross negligence."

Gross Negligence Questions Answered on This Page:

• What is a gross negligence cause of action?
• How is a gross negligence case won?
• What are the elements of a Texas gross negligence cause of action?

It's not easy to prove, but Texas courts allow victims to sue under a theory of "gross negligence" and potentially recover even more money than they would recover with an ordinary negligence allegation. However, every state defines gross negligence in their own unique way. Below, we outline the main elements, challenges, and opportunities that Texas gross negligence claims involve.

What constitutes gross negligence under Texas law?

The first hurdle an injured plaintiff must clear under a gross negligence theory is to prove two additional elements in addition to the four elements of ordinary negligence.

• The first additional element you must prove is that, from the defendant's standpoint, the action he took involved an extreme degree of risk when considering the probability and magnitude of harm that might be caused to others. This is often referred to at the Objective Test.
• The second element you must prove is that the defendant knew of the risk involved by acted anyway in a conscious indifference of the rights and safety or welfare of others. This is commonly referred to as the Subjective Test.

In plain English, this means that a jury must be shown that the defendant knew what he was doing was wildly dangerous, and he didn't care. The plaintiff doesn't have to prove that the grossly negligent defendant wanted to cause the harm he did, just that he knew it was possible and did the bad thing anyway.

Some easy examples of gross negligence:

• A business owner disposes of poisonous waste in a field, knowing that a community's drinking water supply is nearby.
• The managers of a trucking company know that their fleet's truck brakes are all completely defective. Unwilling to spend the money to fix them, they send out their trucks onto crowded streets anyhow.
• A parent allows their 6 year-old to take a gun to school and the child hurts several classmates with the weapon.

You'll notice that the above actions aren't simply thoughtless or even foolish, but willfully ignore extreme risk to others.

The second hurdle a plaintiff must clear to succeed in a gross negligence claim is the elevated burden of proof. In normal negligence claims, in order to win, the plaintiff must win his arguments based upon "preponderance of the evidence." Basically, the plaintiff will make some claim and the defendant will say he's wrong. At the end of the day, the jury has to decide who they feel is more compelling, and they do so based on the evidence provided. With the preponderance of the evidence standard, they're basically deciding who they think is more likely in the right. Mathematically, it's a 51 to 49 standard. If they feel that one side is just slightly more right than the other, then that's good enough to decide the case.

However, since gross negligence is such a serious accusation with serious financial implications, the plaintiff prove the defendant was grossly negligent by "clear and convincing evidence."

Texas law defines this heightened standard as evidence that produces in the mind of the jury or court "a firm belief or conviction as to the truth of the allegations sought to be established." Furthermore, injured plaintiffs attempting to prove that the defendant was grossly negligent also must obtain a jury verdict that is unanimous to both liability and the amount of damages to be awarded.

Juries are to look at more than just the basic facts at hand in the case, but must assess at least some of the following factors, many of which seem quite similar:

• The nature of the wrong done
• The character of the conduct, such as whether there was dishonesty involved or an unprovoked physical attack
• The degree of culpability, as in whether the plaintiff had anything at all to do with the incident
• The parties in the lawsuit, such as the relative position of the plaintiff and defendant and whether the defendant showed remorse
• The conduct offends public's sense of basic justice
• The defendant's net worth

Why it's worth pursuing gross negligence claims in Texas

Normal negligence claims are about making the victim whole. If the jury decides that victim lost $100,000 in lost wages, mental suffering, and medical bills, that becomes the cap to the victim's recovery. Gross negligence, when proven, entitles the plaintiff to exemplary damages, also known as punitive damages. These awards are designed to punish the defendant and to deter similar future conduct from the defendant and similarly situated parties by making the wrongdoer pay extra money, above and beyond what the plaintiff actually lost.

Often, these awards are sizable, because a large penalty is needed to get the attention of large companies with deep pockets, and sometimes dwarf damages ordinarily recoverable by a defendant in an ordinary negligence case. While your financial and emotional damages might be high, a defendant's truly bad acts require financial compensation over and above your medical bills, property damage, and mental anguish. Exemplary damages are just as much about punishment as they are compensations.

The difficulties associated with proving that the defendant was grossly negligent as to merely negligent are illustrated by continuing the above of a texting driver. Under the the most common scenario, the texting driver was not grossly negligent because he did not think that he was acting with an extreme degree of risk that would cause the harm that you suffered. However, if that same driver had rear-ended several other drivers at the same stop light in previous accidents because he was texting, a case could be made that he was grossly negligent because he knew and consciously acted in disregard of the risk of his actions.

You Need an Experienced Attorney to Obtain Maximum Recovery if You Were Injured Due to Gross Negligence

As you can see, proving a claim for negligence or gross negligence is a fact-intensive process. Many plaintiffs achieve maximum recovery only when their case has benefited from the close legal scrutiny that is only available through an experienced personal injury attorney.

The attorneys at Grossman Law Offices have successfully represented numerous clients in personal injury cases for over 25 years, and have secured exemplary damages in cases where the defendant was grossly negligent. Our attorneys are available 24/7 to provide a free consultation regarding your case. Call them at (855) 326-0000 to see if they can put their skill and expertise at work for you.

Other articles about personal injury cases that may be helpful:

• What Defenses Are Likely to Be Mounted Against a Negligence Claim?
• Modified Comparative Fault: How Texas Courts Divide Responsibility
• How Does a Wrongful Death Case Work?