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Overview of Gross Negligence Arguments Used in Texas Car Accident Cases

Around the office we usually describe gross negligence as an act so extreme and outside of normal behavior that it "shocks the senses." Another way of thinking about gross negligence versus regular negligence is that in a regular negligence case, someone forgets or fails to fulfill a duty they owe you, like keeping their eyes on the road. Whereas, in a gross negligence case a doesn't just person forget or fail to perform a duty they owe to you, but acts in such a manner that it seems like they forgot you were a human being. Generally, gross negligence encompasses elements of recklessness, callousness, and maliciousness that go beyond the bounds of acceptable, civilized behavior.

The thing to understand about gross negligence is that almost any kind of bad conduct can rise to the level of grossly negligentconduct. There is no list that says, "The courts have determined that eating while driving is gross negligence but talking on your phone is just ordinary negligence." The reason for this is that, since an accusation of gross negligence (and the extra compensation that comes from a gross negligence jury verdict) is such a legal "nuclear bomb," the courts want juries to determine whether someone's actions meet the definition of gross negligence (or not) on a case-by-case basis. Thus, there is no general rule.

That said, when you've litigated car accident cases for 25 years as our attorneys have, you can get a good feel for whether or not a jury will deem any particular conduct as being grossly negligent or not. In this article, we'll cover the topic of vehicular gross negligence.


Questions answered on this page:

  • What is gross negligence?
  • How does gross negligence impact your car accident case?
  • How can an experienced car accident attorney use a gross negligence argument to maximize your claim?

How does gross negligence relate to car accidents?

The most obvious example of gross negligence in a car accident is when someone is injured by a drunk driver. While driving drunk is also negligence per se (another special type of negligence), in many instances it rises to the level of gross negligence, because juries understand how reckless it is for someone to attempt operate a motor vehicle while they are intoxicated. Another example of gross negligence could be when someone is engaged in an illegal street race. Sadly, street racing culture is present in Texas, and often innocent motorists get caught up in the consequences. It is easy to see that, in the eyes of a jury, street racers are more concerned with their own thrills than the potential catastrophic injuries they can inflict on other unsuspecting drivers.

These scenarios and the difference between negligence and gross negligence are not merely theoretical legal exercises. They have very real consequences in real cases. This is because a gross negligence argument raises the stakes significantly in any car accident case, because it opens the defendant up to the possibility of exemplary damages, the special class of damages that arise when gross negligence arguments are accepted by a jury.

What are exemplary damages?

Sadly, our media does a very poor job of explaining what exemplary damage are and how they relate to actual court cases. There is a miss-perception that exemplary, sometimes call punitive damages, are where the real money in a lawsuit is. Heck, certain advocacy groups even point to exemplary damages as one of the reasons that our court system is broken and in need of reform because the big companies they lobby on behalf of are so paranoid about being forced to pay punitive damages to their victims.

What they never mention is that a car accident attorney can only pursue exemplary damages after successfully proving gross negligence.

Furthermore, in Texas, exemplary damages are capped by law, using a formula, which uses your general and special damages as the starting point for your exemplary damages. If you don't suffer lost wages, medical bills, or pain and suffering, then the amount that can be recovered in exemplary damages is significantly smaller than in a case where a person is seriously injured or killed.

We often hear of so-called "sin taxes" on alcohol, tobacco, or other activities that cause harm to society, it is perhaps simplest to think of exemplary damages as a court imposed levy on behavior that is so shockingly beyond what we expect of our fellows citizens that we need to punish it to send a message that no one should ever engage in that behavior.

The specific part of the Texas Civil Practices and Remedies Code that deals with exemplary damages is section 41.008. It reads:

LIMITATION ON AMOUNT OF RECOVERY. (a) In an action in which a claimant seeks recovery of damages, the trier of fact shall determine the amount of economic damages separately from the amount of other compensatory damages.
(b) Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of:
(1)(A) two times the amount of economic damages; plus
(B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or
(2) $200,000.

Examples of Gross Negligence in Auto Wreck Cases

To further clarify how gross negligence and exemplary damages work in the real world, let's discuss some examples. In addition, we'll cover what an experienced car accident lawyer should and could be doing for you, if you've been harmed by someone's gross negligence.

  • A driver, Joe, is texting on the highway. Joe occasionally looks up from his phone to look at the road in front of him. This is clearly negligent.
    Joe then sees a car pulled over on the side of the road, and a woman is changing one of the vehicle's tires. Joe looks back down at his phone while he passes the woman but does not look up to make sure he's keeping a safe distance. He swerves because he's not paying attention and hits the woman. Now, this woman have suffered severe injuries because Joe was not only negligent, but grossly negligent.

Clearly, not only was Joe acting unlike a reasonably prudent person would, but also, was acting in wanton disregard for his fellow man. That definition, of acting in deliberate carelessness and giving no attention to your risk of harming another, is gross negligence.

Joe could be sued by the woman for her traditional damages as well as exemplary damages.

  • A truck driver, Steve, is driving down a residential street in his big rig. Unfortunately, he's on the job in a truck that has known brake problems, but his employer has refused to fix the problem. Even before an accident occurs, the employer and Steve are taking on a giant risk of potentially harming someone else on the road.
  • Sure enough, Steve is unable to brake in time at a stop light and injures a victim in the car in front of him. That car accident victim now could pursue a gross negligence claim against Steve and his employer. The victim can seek damages for his or her pain and suffering, medical bills, and possible lost wages, but additional, can seek those damages that punish (i.e.punitive or exemplary damages).

Gross negligence is nothing to take lightly. Seek a car accident attorney for your case now.

While the shocking nature of gross negligence means that it usually doesn't take an experienced car accident attorney to know the difference between ordinary negligence and gross negligence, such an attorney is essential for proving gross negligence in a case. Insurance companies will never admit that any accident was due to gross negligence, because of the financial ramifications. If you think your accident may have been caused by gross negligence, give us a call at (855) 326-0000 . We answer the phone 24/7.


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