Under Texas law, the defendant in a personal injury case is guilty of gross negligence when he or she consciously and voluntarily fails to use reasonable care in a manner that is likely to cause grave injury or harm to person or property. The defendant must have had actual, subjective awareness of the risk, yet proceeded to act with conscious indifference to the welfare of others.
To qualify as gross negligence, the act or omission is one:
- which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
- of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.
The burden of proof of gross negligence is on the plaintiff, and cannot be shifted to the defendant. It also cannot be satisfied by evidence of ordinary negligence, bad faith, or a deceptive trade practice.
A unanimous finding of gross negligence by a jury may subject the defendant to exemplary damages.
