Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Monday, June 20, 2011

What constitutes gross negligence under Texas law?

LEGAL DEFINITION OF GROSS NEGLIGENCE When does negligent conduct amount to gross negligence? Gross negligence is “an act or omission involving subjective awareness of an extreme degree of risk, indicating conscious indifference to the rights, safety, or welfare of others.” State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 21 (Tex. 1994)). Gross negligence, as applied under the recreational-use statute, involves two components: (1) viewed objectively from the actor's standpoint, 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 risk involved, but nevertheless proceeds in conscious indifference to the rights, safety, or welfare of others. See Miranda, 133 S.W.3d at 225. Extreme Degree of Risk Gross negligence involves not only actual knowledge of a risk, but knowledge of an extreme degree of risk, considering the probability and magnitude of potential harm to others. Miranda, 133 S.W.3d at 225; see also Moriel, 879 S.W.2d at 22 (“extreme degree of risk” for gross negligence not satisfied by remote possibility of injury or high probability of minor harm, but rather “likelihood of serious injury”). SOURCE: Dallas Court of Appeals - 05-10-00511-CV - 6/14/11 (Plaintiff failed to create a fact issue as to his allegations of gross negligence in suit against governmental entity)

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