Gross Negligence and Sending Messages

January 7, 2021

American jury trials have an incredible impact on the lives of everyone that calls the United States home.  As a whole, a jury is more powerful than the wealthiest people and the largest companies.  Juries are a way to level the playing field.  Juries are capable of making the powerful change their ways—to behave with integrity and to do things safer, so fewer people are injured as a result of their negligence and/or gross negligence.

What is Negligence?

Negligence is defined as “The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do. Or doing something which a prudent and reasonable man would not do. The definition is a little wordy.  To show that a person or business was negligent, an injured person must show five things (discussed below):

  1. Duty of Care. You must show that a person or business had a legal duty to behave or not behave in some way towards you.  For example, drivers have a duty to follow the rules of the road, to obey traffic signs, and to drive cautiously.  Businesses oftentimes have an obligation to provide workers with a safe place to work.
  2. Breach. The person or business failed to exercise reasonable care, thereby breaching their duties towards you. For example, a person may breach a duty by texting and driving. A business may breach its duty by failing to provide workers with proper safety equipment.
  3. Cause in fact. The person or company’s breach must be the actual cause of the accident and your injuries.  For example, you are injured when someone who was texting and driving crashed into the back of your car while you were stopped at a light.  And but for the crash, you would not have been injured.  In fact, a company may be the cause for your injuries if their failure to provide you with proper safety equipment caused you to become injured.
  4. Proximate cause. A reasonable and prudent person would have known the breach could lead to your injuries (most people know that texting and driving is dangerous). Most people know that texting and driving can cause someone to become injured.  Likewise, businesses know that failing to provide workers with proper safety equipment can lead to injury and/or death.
  5. The person or business’ actions caused you to suffer damages, such as hospital bills, lost wages, pain and suffering, mental anguish, etc.

What is Gross Negligence?

In Texas, gross negligence involves two elements: (1) when viewed objectively from the actor’s standpoint, the act or omission involved an extreme degree of risk, considering the probability of potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed with conscious indifference to the rights, safety, or welfare of others.  Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998).

The first clement of gross negligence is defined by Texas Civil Practice and Remedies Code as “an act or omission which when viewed objectively and 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.” § 41.001(11 )(A).  To qualify as an “extreme risk” the action must involve the likelihood of the plaintiff’s serious injury.  U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118,137 (Tex. 2012); see also Rayner v. Dillon, 501 S.W.3d 143, 147 (Tex. App.-Texarkana 2016, pet. filed) (“Under the first, objective element, an ‘extreme risk’ is not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.”) (internal citations omitted); Burleson v. Lawson, 487 S.W.3d 312, 322 (Tex. App.–Eastland 2016, no pet.) (“For the objective element, ‘the act or omission must depart from the ordinary standard of care to such an extent that it creates an extreme degree of risk of harming others.’ ”) (internal citations omitted).

The second element of gross negligence as outlined in Texas law states that the act or omission must be one “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.”  Tex. Civ. Prac. & Rem. Code § 41.001(11)(B).  For actual, subjective awareness, the actor must know of the risk, but his acts or omissions demonstrate that he does not care about the consequences.  Mobil Oil Corp., 968 S.W.2d at 921.  “In examining proof of this second, subjective element ‘courts focus on the defendant’s state of mind, examining whether the defendant knew about the peril caused by his conduct but acted in a way that demonstrates he did not care about the consequences to others.”  Perez v. Arredondo, 452 S.W.3d 847, 854 (Tex. App.-San Antonio 2014, no pet.) (emphasis as in original) (internal citations omitted).

Importantly, “evidence of gross negligence is legally sufficient if, considered as a whole in the light most favorable to the prevailing party, it rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.”  Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 595 (Tex. 1999).  In other words, evidence of gross negligence is legally insufficient only if “a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true.” In re J.F.C, 96 S.W.3d 256, 266 (Tex. 2002).

The Jury’s Voice

The right to a jury trial was added to the U.S. Constitution as the Seventh Amendment in 1791.  The Seventh Amendment ensures that members of a community can be called on to resolve disagreements.

Implicit in the jury’s evaluation of the evidence is the overarching consideration of whether the conduct by the defendant offends the jury’s collective understanding of what is outrageous, malicious, or otherwise morally culpable conduct.  See, generally, Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 39 – 40 (Tex. 1998); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 16 (Tex. 1994); see also TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(5) (exemplary damages are awarded as penalty or punishment).  Arguments by counsel that appeal to the jury’s collective sense of tolerance concerning the defendant’s conduct and whether such conduct satisfies the evidentiary pre-requisites contained in § 41.003 of the Civil Practices and Remedies Code, fall squarely within the scope of permissible lawyer commentary.  See Haryanto v. Saeed, 860 S.W. 2d 913,919 – 920 (Tex. App. -Houston [14th Dist.] 1993, writ denied).  Arguments by counsel for the jury to send a message or to communicate their collective sense of tolerance through their verdict do not raise the specter of improper jury argument and only invite the jury to evaluate the evidence in a manner that is consistent with the standards governing the recovery of exemplary damages contained in § 41.003(a)(3) of the Civil Practices and Remedies Code.  Haryanto, 860 S.W. 2d at 919 – 920 (holding that a “send the message” comment was not improper jury argument in a punitive damages case); Gannett Outdoor Co. of Texas v. Kubeczka, 710 S.W.2d 79, 86-87 (Tex. App. – Houston [14th Dist.] 1986, no writ) (asking the jury to “send a message” by their verdict was not incurable jury argument); Welch v. McLean, No. 2-02-237-CV, 2005 WL 1293068, at *9 (Tex. App. – Fort Worth, June 2, 2005, no writ) (commenting that argument by trial counsel in medical malpractice case concerning the jury’s assignment of percentages of responsibility was proper and was calculated to “send a message” to the defendant physician); see also Robbins v. State, 145 S.W.3d 306, 314-315 (Tex. App.-El Paso 2004, pet. denied) (asking the jury to represent the community and to send a message to the community does not constitute improper jury argument).

As the preceding cases illustrate, the jury has a voice.  Jury arguments that incorporate a “send a message” theme merely point out to the jury one facet of their multi-faceted decision-making process in considering the evidence related to gross negligence.  Advising the jury to exercise its voice by expressing its collective evaluation of the evidence through its verdict is a permissible form of lawyer commentary and should not be excluded on the basis that such argument constitutes improper, incurable jury argument. Haryanto, 860 S.W. 2d at 919-920; Gannett Outdoor, 710 S.W.2d at 86-87; Welch 2005 WL 1293068, at *9; Robbins, 145 S.W.3d at 314-315.

Negligent Acts Are Preventable

The attorneys at Morrow & Sheppard LLP firmly stand by the following principle: negligent and grossly negligent acts are preventable.

If you or a loved one has been injured, you should speak with an attorney to see if you are entitled to compensation.  Morrow & Sheppard LLP’s work injury lawyers have years of experience representing individuals injured by the negligence and/or gross negligence of another person and/or company. Call us today at 800-489-2216 for a free, confidential consultation regarding your accident and injuries.

Get a Free Case Review by Calling Morrow & Sheppard Now.

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